Lorraine Fiadjoe v. Attorney General of the United States

SMITH, Circuit Judge,

dissenting:

While I would like to conclude otherwise, the majority’s approach to its review of the BIA’s findings concerning government protection in Ghana is, in my view, inconsistent with the deferential approach we are required to take in these cases. Accordingly, I must dissent.

Ms. Fiajdoe’s is a tragic story. She does not present the typical claim for asylum, in which a refugee seeks protection from her native government or from forces acting on the government’s behalf. Instead, she recounts a history of physical and sexual abuse suffered at the hands of her father, allegedly in connection with her father’s activities as a traditional “Trokosi” *164priest. Though the grant of asylum has traditionally been used to protect immigrants fleeing government persecution, our laws are sensitive to the plight of individuals such as Ms. Fiadjoe. As the majority explains, a private incident that rises to the level of persecution can create eligibility for asylum when it is committed “by forces the government is either unable or unwilling to control.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). My difficulty with this case is that, try as I might, I cannot say — as the law requires us to say if we are to reverse the BIA — that “any reasonable adjudicator would be compelled to conclude” that the Ghanaian government is unable or unwilling to control her father. I cannot say that here because there is what I consider to be ample evidence in the record to support the BIA’s conclusion that, if the government had been informed of what Fiadjoe claims her father did, it would have been willing and able to control him. The majority sidesteps this evidence in favor of other information that may cast doubt on the efficacy of Ghana’s anti-Trokosi efforts, and holds that the presence of such evidence compels an opposite conclusion than that reached by the BIA. It is simply not our charge to do that.9

To establish eligibility for asylum on the basis of past persecution, an applicant must show: “(1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of one of the statutorily protected grounds; and (3) is committed by the government or forces the government is either ‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (emphasis added). Whether an applicant has demonstrated past persecution or a well-founded fear of future persecution is a factual determination reviewed under the substantial evidence standard. See id. Where an applicant seeks asylum based on private violence, whether the applicant’s native government is willing and able to control the alleged persecutors is a component of the broader persecution inquiry. Thus, we must review the BIA’s finding that Fiadjoe failed to show that the government of Ghana was unable or unwilling to control her father’s abuse in order to determine if that finding is supported by substantial evidence.

In Dia v. Ashcroft, 353 F.3d 228 (3d Cir.2003) (en banc), we elaborated on the nature of substantial evidence review of an asylum claim:

Thus, the question whether an agency determination is supported by substantial evidence is the same as the question whether a reasonable fact finder could make such a determination based upon the administrative record. If a reasonable fact finder could make a particular finding on the administrative record, then the finding is supported by substantial evidence. Conversely, if no reasonable fact finder could make that finding on the administrative record, the finding is not supported by substantial evidence.

Dia, 353 F.3d at 249. We emphasized that our deference to the agency’s findings is conditioned upon support in the record, and we indicated that if the agency’s con-*165elusion “is not based on a specific, cogent reason, but instead, is based on speculation, conjecture, or an otherwise unsupported personal opinion, we will not uphold it because it will not have been supported by such relevant evidence as a reasonable mind would find adequate. In other words, it will not have been supported by substantial evidence.” Id. at 249-50.

The law requires applicants such as Ms. Fiadjoe to bear the burden of proof of establishing her eligibility for asylum. See Gao, 299 F.3d at 272; Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001). The BIA found that Ms. Fiadjoe failed to carry this burden with respect to a critical element of her claim, namely, that she had experienced persecution by forces the government of Ghana was either unwilling or unable to control.

Our task in reviewing the BIA’s finding is not to determine whether we would have reached the same conclusion in the first instance. To the contrary, “the substantial evidence standard of review is extremely deferential, setting a ‘high hurdle by permitting the reversal of factual findings only when the record evidence would “compel” a reasonable factfinder to make a contrary determination.’ ” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004). We have further explained that for a petitioner to prevail on a challenge to the BIA’s factual findings under the Immigration and Nationality Act (“INA”), “the evidence [on the issue in question] must be so strong in [the petitioner’s] favor that in a civil trial [the petitioner] would be entitled to judgment on the ... issue as a matter of law.” See Chen, 376 F.3d at 222 (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

Under this standard, I believe that the majority has failed to accord proper deference to the BIA’s findings on the issue of government protection in Ghana. In con-eluding that Fiadjoe had not met her burden of proof, the BIA stated:

The respondent never sought the help of the authorities in Ghana. The respondent claimed that her grandmother told the police of the respondent’s being beaten but that she declined to tell the authorities about the ritual sexual abuse due to shame. The respondent submitted evidence that the government of Ghana outlawed Trokosi practice and ritual bondage in 1998 and that a nongovernmental organization has had success in liberating, counseling, and rehabilitating past victims of such bondage. Therefore, the respondent has not shown that the government of Ghana would be unwilling or unable to protect her.

AR 74. The majority disagrees with the BIA’s conclusions, but in so doing it fails adequately to address the record evidence supporting the BIA’s findings and places disproportionate emphasis on anecdotal statements culled from various portions of the record.

The majority quotes the description of Trokosi practices contained in. the State Department’s 2000 Country Report on Human Rights Practices in Ghana, which was also part of the record before the BIA. The paragraph immediately following the excerpt quoted by the majority details Ghana’s anti-Trokosi efforts:

In 1998 Parliament passed legislation that banned the practice of Trokosi in comprehensive legislation to protect women and children’s rights. Human rights activists believe that the goal of eradicating the Trokosi practice is achievable .with the new law. NGO’s such as International Needs, and government agencies like the CHRAJ, have been campaigning against Trokosi for several years and are familiar with the .locations of the fetish shrines and the *166numbers of women and children enslaved. Activists know the community leaders and fetish priests and, thus, know with whom to negotiate. The CHRAJ and International Needs have had some success in approaching village authorities and fetish priests at over 316 of the major and minor shrines, winning the release of 2,800 Trokosi slaves to date and retraining them for new professions. The organizations continue to work for additional releases. The Government has not prosecuted any practitioners of Trokosi and in August 1999, a presidential aide criticized anti-Trokosi activists for being insensitive to indigenous cultural and “religious” beliefs and practices. A local group, calling itself the “Troxovi Institutional Council” (Troxovi is an alternate spelling for Tro-kosi) declared that Trokosi, as defined by CHRAJ and other human rights groups to be a form of ritual servitude, does not exist in the country. The group claimed that the practice of “Troxovi” does exist but neither enslaves nor exploits anyone. The Council also listed 23 “genuine Troxovi shrines” in Ghana, describing them as educational institutions and as part of the “Afrika-nia religion.” These claims were widely refuted by chiefs, the press, and NGOs.

AR:343-44.

In light of this discussion, it is unclear to me how the majority can hold that no reasonable factfinder could conclude that the government of Ghana would be willing and able to help Fiadjoe. The fact that the Parliament passed comprehensive legislation to protect women and children’s rights, and that the practice of Trokosi was banned pursuant to this legislation, certainly provides evidence that the Ghanaian authorities recognized the existence and nature of Trokosi and were willing to take steps to combat it. The report’s statement that “human rights organizations believe that the goal of eradicating Trokosi is achievable with the new law” also provides support for the BIA’s conclusion that invoking the aid of Ghanaian authorities would not have been futile. There is no basis in the record to believe that these human rights organizations were offering anything less than an honest assessment of the situation, and if as of 2000 they reasonably believed Trokosi could be eradicated, then it is not for this Court to suggest that the BIA acted unreasonably in giving weight to their views.

The State Department report also recounts empirical evidence in support of the view that the Ghanaian government’s anti-Trokosi efforts were having significant success. Specifically, Ghana’s Commission for Human Rights and Administrative Justice (“CHRAJ”), working with an NGO, had secured the release of approximately 2,800 Trokosi slaves and retrained them for new professions. According to the State Department report, the CHRAJ is an autonomous government commission established pursuant to the Ghanaian constitution. Thus, contrary to the implications of the majority opinion, the State Department report indicates that Ghana’s anti-Trokosi efforts were being implemented by a government agency acting in partnership with various NGOs. According to that report, this collaborative effort relied heavily upon negotiation rather than direct confrontation as a means of aiding the victims of Trokosi practices. By ignoring the CHRAJ initiative, the majority dismisses the BIA’s findings concerning Ghana’s anti-Trokosi efforts, and wrongly equates the absence of criminal prosecution with an absence of effective aid for women threatened by Trokosi practices.

The majority also challenges the significance of the State Department’s description of Ghana’s anti-Trokosi efforts by *167quoting a portion of the report that addresses in a more general sense the problem of violence against women in Ghana. However, the concluding sentences of the paragraph quoted by the majority provide further support for the BIA’s conclusion that Fiadjoe had not shown that the government of Ghana was unwilling or unable to protect her. The report states that 1998 legislation doubled the mandatory sentence for rape, and that in late 1998

the police administration established a ‘women and juvenile unit’ to handle cases involving domestic violence, child abuse, and juvenile offenses. Located in Accra and Kumasi, the unit works closely with the Department of Social Welfare, FID A, and the Legal Aid Board. During the year, the Accra Branch of this unit recorded over 530 cases, including 181 defilement cases, 35 rapes, 6 cases of incest, 17 indecent assaults, 86 instances of assault and wife battery, 6 abductions, and 200 neglect cases.

AR:341-^12. The majority does not recite this evidence, although it was part of the record before the BIA. It reinforces my view that under the deferential substantial evidence standard, the record as a whole contains adequate support for the BIA’s findings concerning the issue of government protection in Ghana.10

The majority also argues that Fiadjoe’s own testimony shows that the government of Ghana would have been unwilling or unable to help Fiadjoe. I do not believe Fiadjoe’s testimony concerning her grandmother can bear the weight the majority places upon it. Fiadjoe’s affidavit and testimony are vague concerning what Fiad-joe’s grandmother told the police, and the details that were allegedly provided could have left the police believing that Fiadjoe’s situation involved a family dispute concerning excessive corporal punishment.

Fiajdoe’s hearing testimony regarding this issue consists of the following exchange:

Q. Okay, did you ever try to go to the police yourself to tell them what was happening to you?
A. No.
Q. Why not?
A. Because of how they were telling my grandmother.

Judge to Ms. Fiadjoe

Q. Because of what, ma'am?
A. Because they always tell my grandmother that he’s discipline and my grandmother, I full of shame to tell anybody my father is sleeping with me.

AR:251. Fiadjoe’s affidavit submitted in support of her asylum application contains slightly more detail:

14. My grandmother told the police about these beatings. My grandmother told me the police only said that ‘your father is just trying to discipline you.’
15. In 1997 my grandmother went to the police after my father had poured boiling water on me when I refused to take his abuse. Again, the police said this was a father’s right to discipline his children.
*16816. My [grand]mother did not tell the police that my father was sexually abusing me. It would shame our family and she could not do that.

AR.-317-18.

In my view, particularly in light of the record evidence of Ghana’s anti-Trokosi efforts, the limited information contained in Fiadjoe’s affidavit and hearing testimony cannot reasonably be relied upon as determinative of what the Ghanaian authorities would have done had they been informed of Fiadjoe’s father’s Trokosi-re-lated abuse. The majority acknowledges that the Ghanaian authorities were never informed of “the sexual aspect of the abuse,” but fails to acknowledge the significance of this fact. The most that can be extracted from Fiadjoe’s affidavit and testimony is that the local police failed to investigate when her grandmother twice told them that Fiadjoe was being physically abused by her father. However, Fiad-joe has not sought asylum simply because she was a victim of child abuse. Fiadjoe’s brief, consistent with the requirements of the INA, argues that she was persecuted “on account of’ her membership in a particular social group, which she defines as “Ghanaian women from the Ewe tribe in the Volta Region who have been subjected to or face being subjected to the practice of Trokosi and who oppose this practice.” See 8 U.S.C. § 1101(a)(42)(A). Thus, it is specifically the sexual aspect of her father’s abuse, combined with its ostensibly “religious” motivation, that has permitted Fiadjoe to seek asylum as one who has suffered persecution “on account of’ a protected ground. It seems anomalous to hold, as the majority does, that Fiadjoe’s native government would not protect her from persecution inflicted “on account of’ her social group, when the Ghanaian government was not informed of Fiadjoe’s membership in this social group or of the nature and extent of the abuse that has given rise to her claim for asylum.11

Notwithstanding any shortcomings in Fiadjoe’s testimony, I am willing to assume arguendo that a reasonable factfin-der could rely on this testimony to conclude that Ms. Fiadjoe had shown that the government of Ghana was unwilling or unable to protect her. The majority, however, holds that a reasonable factfinder would be compelled to take this approach. Based on all of the record evidence discussed above, I simply cannot agree, and thus I believe it is inappropriate to invoke Fiadjoe’s testimony as the basis for displacing the BIA’s judgment with our own.12

Ms. Fiadjoe’s account rightfully evokes our sympathies, and I would be less concerned with the majority’s approach if we had the luxury of deciding each case based *169solely on our own assessment of the facts underlying a petitioner’s claim. However, that is not an approach we are permitted to take as an appellate court reviewing agency action, and I am concerned by the implications of the majority’s approach for future immigration appeals. Our Court has little precedential authority evaluating asylum claims based upon alleged private persecution that a foreign government is purportedly unwilling or unable to control. I fear the majority’s approach sets us down the wrong path for reviewing these difficult issues. By emphasizing only what it finds in the record to cast doubt on the effectiveness of Ghana’s anti-Trokosi efforts, the majority overlooks or discounts the record evidence to the contrary. This approach risks a deluge of claims from applicants who have faced private violence and who can argue that a lack of resources constrains the effectiveness of law enforcement efforts in their native countries. It also raises the troubling specter of frequent judicial pronouncements condemning the law enforcement practices of foreign governments, an outcome our highly deferential standard of review is designed to avoid.

In my view, the majority’s approach is effectively one of de novo review. The law forbids us from substituting our judgment for that of the BIA, and it provides no exception for cases where the BIA has had to address whether a foreign government would be willing and able to protect one of its own citizens.

I respectfully dissent.

. Shortly before oral argument the government filed a motion indicating that Fiadjoe had left the United States and gone to Canada, and requested that her appeal be dismissed on the basis of the fugitive disentitlement doctrine. See Arana v. INS, 673 F.2d 75, 77 (3d Cir.1982) (per curiam). Letter briefs filed after oral argument indicate that, while Fiadjoe apparently remains in Canada, she informed DHS through counsel that she has ''self-deported,” and in response to this information the government withdrew its motion to dismiss the appeal.

. In assessing the BIA's findings, the majority chastises the BIA for failing to address a June 1996 London newspaper article entitled "Slave of the Fetish.” This article was submitted by Fiadjoe's counsel during the proceedings below, and was part of the administrative record before the BIA. However, this article predates by several years Ghana’s anti-Trokosi efforts described in the 2000 State Department report discussed above, and it consists primarily of ambiguous statements that shed little light on whether Fiadjoe had met her burden of showing that the Ghanaian authorities were unwilling or unable to protect her.

. I share the majority's concern, with what appears from the transcript to have been the unnecessarily hostile demeanor of the IJ during Ms. Fiadjoe’s hearing. However, the record as a whole supports the BIA's decision to accord limited weight to Fiadjoe’s account concerning the interaction between her grandmother and the Ghanaian police. Ms. Fiadjoe’s affidavit, prepared in advance of the hearing with the assistance of counsel, contains little detail concerning the specific information given by her grandmother to the Ghanaian police, and the affidavit acknowledges that the police were never informed of the alleged ritual sexual abuse that is the basis of Fiadjoe's claim for asylum.

. The majority also recounts Fiadjoe’s testimony concerning her unsuccessful efforts to relocate away from her father, and asserts that “Ms. Fiadjoe’s own experiences demonstrate that where a Trokosi slave is involved the police will not intervene.” Maj. Op. 159-60. This statement on its face seems to me inconsistent with the majority’s own acknowledgment that the Ghanaian authorities were never informed that Fiadjoe was a "Trokosi slave.”