381 F.3d 687 (7th Cir. 2004), 03-1876, Diallo v. Ashcroft

Docket Nº:03-1876.
Citation:381 F.3d 687
Party Name:Mamadou DIALLO, Petitioner, v. John D. ASHCROFT, Respondent.
Case Date:August 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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381 F.3d 687 (7th Cir. 2004)

Mamadou DIALLO, Petitioner,

v.

John D. ASHCROFT, Respondent.

No. 03-1876.

United States Court of Appeals, Seventh Circuit

August 26, 2004

Argued Jan. 13, 2004.

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Swaray E. Conteh (Argued), Indianapolis, IN, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Richard M. Evans, Emily A. Radford, Margaret Kuehne Taylor, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Mamadou Diallo, a native citizen of Mauritania, requested that the Immigration and Naturalization Service (INS) 1 grant him asylum. The Agency refused, reasoning that Diallo had not been persecuted in Mauritania, did not have a well-founded fear of future persecution there, and had firmly resettled in Senegal prior to his arrival in the United States. Because the Agency (1) ignored its own regulations regarding the proper factors to consider in a firm resettlement analysis, (2) failed to make a credibility determination, and (3) failed to support its decision on fear of future prosecution with reasonable or substantial evidence, we must remand for further proceedings consistent with this opinion.

Diallo was born in Mauritania in 1958 and lived there for the first thirty-five years of his life. According to Diallo's testimony, in 1986 he joined the African Liberation Force of Mauritania (FLAM) an organization seeking to fight against slavery, torture, and discrimination in Mauritania. Diallo's brother, Saidou, was

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also a member of FLAM, and because of his leadership role in the organization, in approximately 1989 or 1990, he was arrested and imprisoned for six months. Through newspaper accounts, Diallo learned that Saidou had been tortured and eventually killed while in prison. Diallo himself was not a leader in the organization; he did not pass out political leaflets or brochures and did not speak at political rallies, but he did support the organization monetarily from the proceeds of his work as a merchant and did not hide his support for FLAM.

In approximately May 1993, uniformed police officers arrived at Diallo's house at night searching for a member of FLAM. They handcuffed him, searched his apartment, confiscated all of his documents, and took him to jail without the opportunity to appear before a judge or to be represented by a lawyer. For the six months that he remained in jail, he was forced to perform hard labor, cutting and hauling wood and digging holes. During one incident when he was working too slowly, a guard slashed his arm with a knife.

After six months, Diallo's captors released him and immediately placed him on a boat to Senegal with nothing but his Mauritanian national identification card. Diallo spent four years in Senegal "selling small things" and living with a former acquaintance from Mauritania in a rented apartment. He attended church, but had no familial ties in Senegal. Although he had neither a work permit nor official permission to remain there, he was not bothered by the Senegalese government. Diallo left Senegal and traveled as a stowaway on a boat to Baltimore, Maryland where he arrived in June 1997. Two months later, he submitted his application for asylum, withholding of removal, and for protection under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 2 Diallo appeared for his scheduled asylum interview, but because his privately hired interpreter never arrived and Diallo could not participate in the interview, he was deemed to have failed to appear, he was charged with removal, and his asylum application was referred to an immigration judge pursuant to 8 C.F.R.§ 1208.14(c) (1).

The written decision by the immigration judge failed to make any credibility determinations, but rather assumed that even if Diallo had testified credibly, he would not be entitled to relief from deportation. The immigration judge found that Diallo's detention and expulsion did not amount to persecution, that he did not meet his burden of demonstrating a well-founded fear of future persecution, and that he was ineligible for asylum in any case because he had firmly resettled in Senegal prior to arriving in the United States. Consequently, the immigration judge also found that Diallo had not met the higher burden of proof required for withholding of removal and for protection under CAT. 3

Diallo appealed the immigration judge's decision to the Board of Immigration Appeals (BIA), which summarily affirmed the decision of the immigration judge, making it the decision of the agency for purposes of our appellate review. 8 C.F.R. § 1003.1(e) (4); Szczesny v. Ashcroft,

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358 F.3d 464, 465 (7th Cir. 2004). That decision held that the final blow to Diallo's asylum claim was that he had firmly resettled in Senegal prior to his arrival in the United States. "Firm resettlement," however, is an odd tool to use to strike the final blow to an asylum claim, since under the current statutory iteration of the doctrine of firm resettlement, an immigration court must deny asylum to any refugee if "the alien was firmly resettled in another country prior to arriving in the United States." 8 U.S.C. § 1158(b) (2) (A) (vi). 4 That being said, it seems the logical place to begin rather than end an assessment of whether a refugee is entitled to asylum in this country. If the doctrine of firm resettlement sounds the death knell on the asylum-seeker's claim, there is simply no need to continue on to determine whether an asylum-seeker was the victim of past persecution or has a well-founded fear of future persecution.

The question of how to determine whether a refugee has firmly resettled in another country prior to her arrival in the United States appears to be an issue of first impression for this circuit. The only published Seventh Circuit opinion discussing firm resettlement was decided in 1954, long before the enactment of the current statute and agency rules on the subject. See United States v. Rumsa, 212 F.2d 927 (7th Cir. 1954). Although the statute mandating the denial of asylum for refugees who have firmly resettled (8 U.S.C. § 1158(b) (2) (A) (vi)) does not itself define "firm resettlement" or offer instruction on how firm resettlement should be determined, the agency regulations set forth in straightforward language how an immigration judge should proceed in making that determination. 8 C.F.R. § 208.15. The regulations provide that:

[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, or some other form of permanent resettlement unless he or she establishes:

(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or

(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of

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entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

8 C.F.R. § 208.15. After the government meets its initial burden of demonstrating firm resettlement, the asylum-seeker may rebut the presumption by presenting evidence to the contrary. Mussie v. U.S. INS, 172 F.3d 329, 332 (4th Cir. 1999); Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir. 1998); Salazar v. Ashcroft, 359 F.3d 45, 50 (1st Cir. 2004). For the refugee who has failed to rebut the presumption of firm resettlement, all hope is not lost. She may also demonstrate that she falls within one of the two exceptions to firm resettlement articulated in section (a) and (b) of the regulation. 8 C.F.R. § 208.15(a), (b).

The primary and initial consideration, therefore, is a simple one--whether or not the intermediary country has made some sort of offer of permanent resettlement. The regulations do allow the immigration judge to consider factors such as the length of time spent in the country, housing, and the type and extent of the refugee's employment, among others, but only after making a preliminary finding of a genuine offer vel non of permanent resettlement, and only then when the applicant seeks to demonstrate that she falls into one of the two exceptions. 8 C.F.R. § 208.15. See Rife v. Ashcroft, 374 F.3d 606, 610-11 (8th Cir. 2004); Abdille, 242 F.3d at 486.

As we noted earlier, see footnote 4, supra, this was not always the case. Prior to 1990, "firm resettlement" was just one of the factors to be considered in the Agency's exercise of discretion in granting asylum. See Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971); Abdille, 242 F.3d at 483 n. 4. Under a discretionary scheme, where firm resettlement is but one factor to consider in granting or denying an asylum...

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