Ba v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit

September 3, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAMOUDOU BA,

Petitioner,

v. No. 07-9575

MICHAEL B. MUKASEY,
United States Attorney General,

Respondent.

APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
PETITION FOR REVIEW

Submitted on the briefs: *

Sharon A. Healey, Seattle, Washington, for Petitioner.

Emily Anne Radford, Assistant Director, Margaret A. O’Donnell, Trial Attorney,
Department of Justice, Civil Division, Office of Immigration Litigation,
Washington, D.C., for Respondent.

Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
 Petitioner Mamoudou Ba petitions this court for review of an order of the

Board of Immigration Appeals (BIA) upholding the immigration judge (IJ)’s

denial of his applications for asylum, restriction on removal, and protection under

the Convention Against Torture (CAT). The BIA determined that Mr. Ba failed

to overcome the government’s showing that country conditions have changed so

significantly in his country of origin, Mauritania, that he no longer has a well-

founded fear of future persecution if returned there. His arguments to the

contrary rest on two misconceptions: that a showing of possible future

discrimination is sufficient to establish future persecution; and that the failure to

remedy past persecution constitutes future persecution. We conclude that the BIA

conducted a sufficiently individualized review of the effect of changed country

conditions on Mr. Ba’s case, and that its decision was supported by substantial

evidence. We therefore deny the petition for review.

BACKGROUND

Mr. Ba is a citizen and native of the West African country of Mauritania.

He entered this country in June 2003, bearing a Senegalese passport containing

his photograph but issued under a different name. On March 17, 2004, the

Immigration and Naturalization Service issued him a Notice to Appear, charging

him with being an alien present in the United States who had not been admitted or

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paroled after inspection by an Immigration Officer. Mr. Ba admitted the

allegations contained in the Notice.

1. Ethnic Violence in Mauritania

Mauritania is a highly-centralized Islamic republic with a long history of

ethnic and racial tensions. The country’s population is essentially divided into

three ethnic groups: the politically-dominant “White Moors” of Arab and Berber

ancestry; the indigenous African “Black Moors,” historically enslaved by the

White Moors; and Sub-Saharan Africans belonging to a variety of ethnic groups

including the Halpulaar/Fulani, Tukulor, Soninke, and Wolof groups. Mr. Ba is a

black African associated with the Halpulaar/Fulani group.

Mauritania’s Sub-Saharan African population has historically been centered

in the south of the country, in the Senegal River region. In 1989, tensions among

Mauritania’s various ethnic groups erupted in a violent crisis associated,

externally, with deteriorated relations between Mauritania and its neighbor

Senegal, and internally, with increasing demands for greater recognition by the

country’s Sub-Saharan African population. The White Moors, working in alliance

with the Black Moors, attempted to “cleanse” Mauritania of its Sub-Saharan

African population. In the ensuing years, Mauritania expelled some 75,000

people of African ancestry, forcing many across the river into Senegal. Many

Mauritanians of black African descent were also killed, assaulted, stripped of

their property, and/or imprisoned.

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 2. Mr. Ba’s Testimony

At his hearing before the IJ on May 4, 2006, Mr. Ba described his

experiences as a victim of this violent upheaval. He testified that he was born in

Mauritania and worked there with his father making bricks until 1989. In the fall

of that year, policemen wearing military uniforms came and arrested him and his

family. The policemen beat him and took everyone from his house, including his

parents, his wife, and his sister. They shot and killed his father.

Mr. Ba testified that he spent the next year in a detention camp. His

captors were White Moors. He was separated from his wife and children in the

camp and beaten every day.

At the end of the year-long incarceration, the policemen took him to the

Senegal River and forced him to cross by canoe into Senegal. There he was

reunited with his family at the Thilogne refugee camp. He remained in the

refugee camp for five years, selling bricks, then departed for Senegal’s capital

city, Dakar. In Dakar he worked as an itinerant clothing salesman until he left for

the United States.

3. Agency Decisions

The IJ rejected Mr. Ba’s application, denied all relief, and ordered him

removed to Mauritania or alternatively, to Senegal. The IJ identified a number of

reasons for his decision. First, he did not find Mr. Ba to be a credible witness due

to a number of discrepancies between his testimony and his asylum application.

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Second, he found that Mr. Ba had failed to demonstrate that his asylum

application was filed within one year of his arrival in the United States. Third,

country conditions had changed in Mauritania so significantly that even if Mr. Ba

had demonstrated past persecution, he would not be eligible for asylum because

he had no well-founded fear of future persecution. Finally, the evidence showed

that Mr. Ba had been firmly resettled in Senegal.

Mr. Ba appealed to the BIA. In a reasoned decision authored by one Board

member, see 8 C.F.R. § 1003.1(e)(5), the BIA agreed with the IJ that “even if

[Mr. Ba] was credible and established past persecution entitling him to the

presumption of a well-founded fear of future persecution, his well-founded fear of

future persecution has been rebutted by changed country conditions in

Mauritania.” Admin. R. at 2. In light of this disposition, the BIA did not find it

necessary to consider the other reasons for denying relief on which the IJ relied.

ANALYSIS

1. Asylum Standard

To obtain asylum, an alien must prove, first, that he is a refugee as defined

in 8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to exercise

his discretion and grant relief under 8 U.S.C. § 1158(b). See Yuk v. Ashcroft,

355 F.3d 1222, 1232-33 (10th Cir. 2004). The asylum statute defines a “refugee”

as any person outside his country of nationality “who is unable or unwilling to

return to, and is unable or unwilling to avail himself . . .of the protection of, that

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country because of persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion.” § 1101(a)(42)(A). The BIA denied relief at the first stage, finding that

Mr. Ba was not a refugee. It therefore did not reach the second, discretionary

stage of the analysis.

2. Past Persecution and Well-Founded Fear of Future Persecution

In its decision, the BIA assumed that Mr. Ba’s testimony demonstrated that

he had suffered past persecution. Although regulations of the Department of

Homeland Security (DHS) provide that “[a]n applicant who has been found to

have established . . .past persecution shall also be presumed to have a

well-founded fear of persecution on the basis of the original claim,” they also

provide that “[t]hat presumption may be rebutted if an . . .immigration judge

[finds by a preponderance of the evidence that] . . . [t]here has been a

fundamental change in circumstances such that the applicant no longer has a

well-founded fear of persecution in the applicant's country of nationality. . . .”

8 C.F.R. § 208.13(b)(1)(i)(A); see also 8 C.F.R. § 1208.13(b)(1)(i)(A).

The BIA found that DHS had rebutted the presumption of future

persecution by showing that country conditions have changed in Mauritania.

Mr. Ba contends that the BIA relied excessively on State Department reports

concerning changed country conditions in Mauritania generally and failed to

conduct an analysis of his individual circumstances.

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 3. Changed Country Conditions

In its decision, the BIA made the following findings concerning the change

in country conditions in Mauritania as they applied to Mr. Ba’s case:

[P]ersuasive country conditions evidence in the record reflects a
significant easing of ethnic tensions, with most Afro-Mauritanian
refugees having been successfully repatriated with the cooperation of
the Mauritanian Government . . . . Indeed, the evidence of country
conditions [in] Mauritania indicates that of the approximately 75,000
refugees who were expelled by the Government or fled to Senegal,
such as [Mr. Ba], during the 1989-91 crisis, the U.N. High
Commissioner for Refugees (UNHCR) has documented that only
approximately 15,000 to 20,000 remain in Senegal. . . . Moreover,
the UNHCR indicated that most of the returnees have recovered their
land and identity papers . . . These developments lead us to conclude
that [Mr. Ba] no longer has a well-founded fear of persecution in
Mauritania.

Admin. R. at 2-3. The BIA further addressed Mr. Ba’s claim that a person who he

knows in Senegal heard Mr. Ba’s name broadcast on Mauritanian radio in 1995,

in a list of people who the police were looking for and who would be killed if

they returned to Mauritania:

Although [he] testified that someone informed him that his name was
broadcasted on the radio in Mauritania because the police were
looking for him, we find that this information is too attenuated to
establish a present basis for a well-founded fear of persecution
because the information came from a third party and [Mr. Ba] did not
establish the circumstances surrounding this alleged broadcast.

Id. at 3.

Whether the materials of record rebutted the presumptive inference from

past to future persecution is a question of fact that we review for substantial

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evidence. Marcu v. INS, 147 F.3d 1078, 1080-81 (9th Cir. 1998). That means we

cannot reverse the determination of the BIA unless the record compels us to

conclude that it was wrong. Id.; see also Nazaraghaie v. INS, 102 F.3d 460, 463

n. 2 (10th Cir. 1996) (noting deferential standard applies even if court is

reviewing application of statutory standard to established subsidiary facts).

In reaching its conclusions concerning current conditions in Mauritania, the

BIA relied on the background information submitted by Mr. Ba, including State

Department country reports for 2004 and 2005. Country reports can constitute

substantial evidence to support such a determination, see Yuk, 355 F.3d at 1236,

though it is important to keep in mind that their inherently broad statements may

not always address the specific concerns that are salient in a particular case, see

Krastev v. INS, 292 F.3d 1268, 1276-77 (10th Cir. 2002).

The BIA adequately addressed the specific concerns salient to Mr. Ba’s

case. The changed country conditions it found were directly salient to the forms

of past persecution that he endured in the 1980s and early 1990s: imprisonment;

death of a loved one; loss of possessions and livelihood; and enforced exile. The

evidence relied upon by the BIA shows that the crisis that prompted the exile and

detention of African Mauritanians like Mr. Ba has ended. To be sure, Mauritania

still has broad social and political shortcomings in need of improvement. But

these do not suggest a likelihood that Mr. Ba will be persecuted. See

Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th Cir. 2001) (stating adequate

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showing of change in country conditions shifts burden back to alien to show she

has well-founded fear of persecution).

Mr. Ba cites an unpublished case, Diallo v. Gonzales, 178 F.App’x 833

(10th Cir. 2006), in support of his argument that the BIA’s failure to address the

likelihood of future persecution under his particular circumstances requires us to

vacate the BIA’s decision. We do not find Diallo persuasive here. In that case,

also involving a Fulani-speaking Mauritanian, a panel of this court determined

that the evidence on which the BIA relied failed to rebut the presumption of

future persecution because (1) there was no specific evidence that showed how

many refugees had returned to the petitioner’s region and were able to obtain their

property or identity papers, and (2) evidence showed that officials in the southern

region of Mauritania continued beating refugees and confiscating land belonging

to southern ethnic groups under the land reform system, and that refugees

encountered difficulty in regaining their lands. Id. at 837.

Mr. Ba provides no reference to the country reports in his case, which are

chronologically later than those cited in Diallo, to substantiate Diallo’s concern

that returnees continue to be beaten by police. While there is evidence that some

refugees returning to Mauritania have had difficulty getting back their land or

obtaining identity papers, he fails to point to evidence of mistreatment of

returning refugees that would amount to persecution. Persecution is the

“infliction of suffering or harm . . . in a way regarded as offensive and

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[involving] more than just restrictions or threats to life and liberty.” Yuk,

355 F.3d at 1233 (quotation marks omitted). “Discrimination on the basis of race

or religion, as morally reprehensible as it may be, does not ordinarily amount to

‘persecution’ within the meaning of the Act.” Ghaly v. INS, 58 F.3d 1425, 1431

(9th Cir. 1995).

Mr. Ba argues that the government has been unwilling to issue identity

cards to some returning refugees. While he argues that lack of an identity card

can curtail one’s ability to travel freely throughout the country, he fails to discuss

whether this unwillingness to grant identity cards to all returning black African

Mauritanians has resulted in social or economic consequences so severe for those

returnees that it should be considered persecution. Cf. Vicente-Elias v. Mukasey,

___F.3d___, 2008 WL 2699399, at *2 (10th Cir. July 11, 2008) (stating economic

persecution may be shown where deprivation necessarily threatens life or freedom

or where severe economic disadvantage has been imposed on alien). He fails to

show that he owns land that is likely to be misappropriated by corrupt

administrators of the land reform system.

His argument that the Southern region of Mauritania “historically has been

beset by ethnic tensions, banditry and drought,” Aplt. Br. at 16, similarly falls

short of demonstrating that returnees to Mauritania are likely to experience

persecution by the government or by groups that it is unable or unwilling to

control. See Krastev, 292 F.3d at 1276. Finally, the fact that some or most of the

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returnees have experienced difficulty in regaining their lands that were lost during

past persecution does not demonstrate a likelihood of future persecution. Mr. Ba

fails to show that the government’s failure to insure that he receives reparations is

the equivalent of persecuting him. 1

In light of the facts in this record, we cannot say that we are compelled to

conclude that the BIA erred in finding that the government had rebutted the

presumption of future persecution raised by Mr. Ba’s adverse experiences during

the Mauritanian crisis of the late 1980s and early 1990s. Under the applicable

standard of review, we must affirm that finding. We also affirm the BIA’s

finding that the incident in which his name was read over the radio was too

attenuated to establish the basis for a well-founded fear of persecution.

Mr. Ba does not make a specific argument in support of his claim for

restriction on removal. His failure to satisfy the burden of proof for asylum,

however, necessarily constitutes a failure to meet the more stringent burden of

proof for restriction on removal. See Yuk, 355 F.3d at 1236. We therefore also

affirm the BIA’s denial of restriction on removal.

1
In his reply brief, Mr. Ba cites another unpublished Tenth Circuit case, Ba
v. Gonzales, 222 F.App’x 702 (10th Cir. 2007), in which a panel reached a similar
result to that in Diallo. We find Ba unpersuasive here for the same reasons that
Diallo fails to persuade us.

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 4. CAT Claim

The BIA denied Mr. Ba’s CAT claim because “there is no evidence that the

Mauritanian Government would torture him or be acquiescent in his torture.”

Admin. R. at 3. Mr. Ba asserts that the background materials he provided show

that the Mauritanian government tortured or permitted torture of its perceived

enemies during the 1989-1991 crisis, and continues to use torture to silence or

punish its perceived enemies. The tortures he describes were meted out to

suspected participants in a coup attempt. See Admin. R. at 210-11. There is no

evidence that Mr. Ba would be tortured as a suspected plotter against the

government if returned to Mauritania. He has failed to point to any evidence that

he faces torture if returned there. We affirm the BIA’s finding concerning his

torture claim.

CONCLUSION

The petition for review is DENIED.

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