Camara v. Attorney Gen. of U.S.

• Decision Date: 04 September 2009
• Docket Number: No. 07-3892.,07-3892.
• Citation: 580 F.3d 196
• Parties: Fatouma CAMARA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

580 F.3d 196

Fatouma CAMARA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 07-3892.

United States Court of Appeals, Third Circuit.

Argued March 5, 2009.

Filed September 4, 2009.

Camille J. Mackler, Esq., [Argued], Law Office of Theresa Napolitano, New York, NY, for Petitioner, Fatouma Camara.

Jeffrey S. Buckholtz, Esq., Emily Anne Radford, Esq., Patrick J. Glen, Esq., Craig Alan Newell, Jr., Esq., [Argued], United States Department of Justice, Civil, Division Office of Immigration Litigation, Washington, DC, for Respondent, Eric H. Holder.

Before SLOVITER and HARDIMAN, Circuit Judges, and POLLAK,^* District Judge.

OPINION OF THE COURT

POLLAK, District Judge.

Fatouma Camara ("Camara") petitions for review of a decision by the Board of Immigration Appeals ("BIA" or "the Board") denying her application for asylum under the Immigration and Nationality Act ("INA" or "the Act"), 8 U.S.C. § 1101 et seq. Because substantial evidence does not support the BIA's conclusion that Camara did not suffer past persecution — and hence does not have a well-founded fear of future persecution — we will remand.¹

I. Facts

A.²

Camara was born in Abidjan, Ivory Coast, in 1980. She is a Muslim and a member of the Dioulla ethnicity. Her father, Camara Mamadi ("Mamadi"), was a founding member of the Rally of the Republicans ("RDR") political party. The RDR was a political party in opposition to the government of the Ivory Coast at the time of the events relevant to this case.

On or about October 29, 2002, a group of men, dressed in black and armed with rifles, came to Camara's home in Abidjan. Camara, her mother, and her father were at the home when the armed men — whom Camara refers to in her testimony as the "death squad" — arrived. The men accused Mamadi of supporting anti-government rebel forces and hiding weapons on the rebels' behalf. After searching the home but finding no such weapons, they nevertheless seized Mamadi and took him away by force. While leaving with Mamadi, they threatened to return to make Camara and the rest of her family "disappear" like Mamadi. Since that moment, neither Camara, her family, nor the RDR has had any contact with Mamadi.³

After waiting a few days for her father to return home to Abidjan, Camara, along with the remaining members of her family, traveled to Man, Ivory Coast, to stay with her father's brother. On or about November 18, 2002, anti-government rebels attacked Man and clashed with forces loyal to the government.⁴ Although civilians were targeted in the attack, neither Camara nor her family was harmed.

On or about January 3, 2003, Camara moved to Guinea, where her mother left her in the care of a relative. Camara's new guardian in Guinea severely abused Camara, both physically and emotionally, by subjecting Camara to female genital mutilation ("FGM"); beating Camara with a whip in response to Camara's refusal to participate in an arranged marriage; and forbidding Camara from leaving the guardian's residence. Sometime in November 2006, Camara escaped from her residence in Guinea and hid briefly at a friend's home. On or about December 25, 2006, Camara flew to John F. Kennedy International Airport ("JFK") in New York.

B.⁵

To put these events in context, we provide a short summary of the recent history that gave rise to them.⁶ On September 19, 2002, a rebellion against the Ivory Coast's government began in three Ivorian cities: Abidjan, Bouake, and Korhogo. Many supporters of the RDR joined the rebel forces. The government encouraged and relied upon pro-government civilian militia groups to combat the rebels.⁷ According to Human Rights Watch, these civilian militias constituted "a lightly veiled mechanism to intimidate and abuse members of the political opposition and those who, by virtue of their religion, ethnicity, and/or nationality were thought to oppose the government (most notably Muslims, northerners, and West African immigrants mostly from Burkina Faso, Niger, Mali, and Guinea)."

The rebels were unable to capture Abidjan, and the city became a central location of the conflict between pro-government civilian militia groups and those perceived to be rebels or Muslims. Even after the armed conflict officially ended in January 2003, the pro-government militias continued to commit human rights abuses against Muslims and others perceived to be opponents of the ruling regime.

C.

Camara was detained immediately upon her arrival in New York on or about December 25, 2006. On January 8, 2007, she was granted, and passed, a "credible fear" interview with an asylum officer.⁸ On January 10, 2007, Camara was served with a Notice to Appear ("NTA") in Immigration Court in Elizabeth, New Jersey, charging that she was subject to removal. On January 22, 2007, Camara submitted an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), and her case was assigned to an Immigration Judge ("IJ").

In the Immigration Court, Camara argued that she was entitled to asylum because she faced past persecution and had a well-founded fear of future persecution for reasons enumerated in 8 U.S.C. § 1 10 1(a)(42)(A).⁹ The IJ denied Camara's petition and found, inter alia, that (1) Camara's alleged past persecution in Guinea was "irrelevant" to her asylum claim because Camara is a citizen of the Ivory Coast, and "any persecution claimed by [Camara] must be from the country of nationality"; (2) Camara "herself did not sustain any mistreatment in the Ivory Coast" because her suffering in the Ivory Coast "was the type of suffering similarly experienced by others who live in a wartorn area where civil war is in place"; (3) "no objective evidence was presented" that Camara's father was abducted "on account of his ethnicity or religion"; and (4) there was no "objective evidence" to support a finding that Camara's fear of future persecution on account of her religion or ethnicity is "objectively reasonable." The IJ concluded that, despite "various outbreaks of disputes and unrest between these ethnic groups ... the evidence as a whole is not inclusive [sic] that the respondent would be mistreated or harmed if removed to Ivory Coast solely on account of her ethnicity," and that therefore Camara did not qualify for asylum or withholding of removal. The IJ also held that because it could not conclude that "the respondent would more likely suffer torture in her country by or with the consent or acquiescence of a public official acting under color of law," Camara was not eligible for relief under the Convention Against Torture.

On June 5, 2007, Camara timely filed an appeal with the BIA challenging the IJ's denial of her asylum petition. On August 31, 2007, the Board dismissed petitioner's appeal, holding, inter alia, that (1) petitioner's persecution in Guinea is irrelevant to her asylum application; (2) even assuming arguendo that Camara's account of her father's abduction was entirely credible and that his captors were centrally motivated by his ethnicity or religion, "their mistreatment of petitioner did not amount to past persecution"; and (3) Camara "has not shown that she obtained such notoriety amongst government officials in the Ivory Coast that she would be singled out by them for persecution." Therefore, the BIA concluded, conditions in the Ivory Coast do not indicate that Camara has a well-founded fear that returning to the Ivory Coast will result in persecution on account of her ethnicity or religion.

On September 28, 2007, Camara moved for reconsideration by the BIA. The BIA denied that petition on November 5, 2007. In that opinion, the BIA held that the facts of Konan v. Attorney General of United States, 432 F.3d 497 (3d Cir.2005), involved "significantly more severe [harm] than the harm [Camara] suffered when government officials came to her house" and that therefore Camara's "experiences during her father's arrest did not constitute persecution." The BIA also rejected Camara's argument that she was a member of a persecuted social group consisting of her family.

On September 26, 2007, Camara timely filed a petition for review of the BIA's August 31, 2007 final order of removal. She has not filed a petition for review of the BIA's denial of her motion to reconsider.

II. Jurisdiction and Standard of Review

We have jurisdiction to review a final order of the BIA under 8 U.S.C. § 1252. "Ordinarily, Courts of Appeals review decisions of the Board of Immigration Appeals (BIA), and not those of an IJ." Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). We have jurisdiction to review the opinion of the IJ only where the BIA has substantially relied on that opinion. See, e.g., Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). In the instant matter, thus, we will review only those portions of the IJ's opinion that the BIA has specifically adopted. Because petitioner did not appeal the BIA's denial of her motion for reconsideration, we will not review that decision.¹⁰

We affirm any findings of fact supported by substantial evidence and are "bound by the administrative findings of fact unless a reasonable adjudicator would be compelled to arrive at a contrary conclusion." Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir.2005) (citations omitted). Whether Camara has met her burden of showing a well-founded fear of future persecution "is a question of fact, and the agency determination must be upheld if it is supported by `substantial evidence' in the record." Gomez-Zuluaga v. Attorney General of the United States, 527 F.3d 330, 340 (3d Cir.2008) (citations omitted).

In conducting our review, we will treat Camara's testimony as credible. Under the Act, "if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal." 8 U.S.C. § 1158(b)(1)(B)(iii). Neither the IJ nor the BIA made a determination that Camara was not credible.

III. Analysis

The...