Abdoulaye v. Holder

• Decision Date: 01 August 2013
• Docket Number: No. 12–3023.,12–3023.
• Parties: Souleye ABDOULAYE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

721 F.3d 485

Souleye ABDOULAYE, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–3023.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 15, 2013.

Decided Aug. 1, 2013.

Swaray E. Conteh, Indianapolis, IN, for Petitioner.

Lyle D. Jentzer, OIL, Department of Justice Washington, DC, for Respondent.

Before POSNER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge.

Souleye Abdoulaye petitions for review of a decision of the Board of Immigration Appeals (BIA) rejecting his petition for adjustment of status, asylum, and withholdingof removal under 8 U.S.C. § 1231 and the Convention Against Torture (CAT). The Board based its action on a finding that Abdoulaye's participation in a 2002 military mutiny in his home country of Niger amounted to “terrorist activity” within the meaning of the Immigration and Nationality Act (INA) and thus rendered him ineligible for any form of relief. The Board also denied Abdoulaye's request for deferral of removal under the CAT, because he failed to show that it was more likely than not he would be tortured if returned to Niger, and Abdoulaye challenges that conclusion. Because we conclude that the Board's decisions on both points were supported by substantial evidence, we deny the petition for review.

I

A

Abdoulaye is a native and citizen of Niger who entered the United States on a nonimmigrant visa on August 1, 2002. Several months after his arrival, Abdoulaye (with the assistance of counsel) filed an application for asylum, withholding of removal, and protection under the CAT. In a written statement accompanying that application, Abdoulaye stated that he fled Niger because he feared “being sentenced to death or killed due to [his] planning of a military mutiny” that was planned and executed in late July and early August of 2002. Abdoulaye explained that he was a corporal in the Nigerien military and a supporter of the Rassemblement Démocratique pour le Progrès (RDP), a left-wing political party loyal to former President Ibrahim Baré Maïnassara. Following Baré's death in a 1999 coup, Abdoulaye and other RDP supporters in the military were transferred to the remote town of Diffa, apparently as punishment for their loyalty to the ousted Baré.

In July 2002, RDP-affiliated soldiers in Diffa hatched a plot to mutiny in order to protest low wages and poor conditions and to demand reform. The plot included plans to seize the regional governor of Diffa and several other officials “to demand our rights for better living conditions.” At multiple points in his asylum application, Abdoulaye identified himself as an organizer of the mutiny, stating (among other things): “I was one of the organizers of this mutiny,” “I ordered others to carry out the actions of this mutiny,” and “I participated in the writing of a statement that was sent to the government with our demands which all the organizers signed.” Abdoulaye further noted that in the weeks leading up to the mutiny he obtained two visas—one for Belgium and the other for the United States—in anticipation of needing to flee Niger in its wake.

The mutiny began on July 31. Several hundred soldiers in Diffa rose up, seized the regional governor and six other officials, and took over the town, erecting barricades and imposing a curfew on residents. According to news reports, the mutineers demanded five months' back pay, the dismissal of the military's chief of staff, and a meeting with the prime minister. The mutiny was suppressed several days later when, following a brief skirmish in which two people were killed, government troops retook the town.

Abdoulaye was no longer in Niger when the mutiny took place. In his statement, he reported that he received word on July 25 that the government had plans to arrest the mutiny's organizers, and based on that warning, he and six other organizers fled to Nigeria. While several of his co-organizers chose to seek asylum in Belgium, Abdoulaye made his way to the United States, arriving in New York at the beginning of August. He fears that if he is returned to Niger he would be arrested and either held without trial, sentenced to death by a military tribunal, or perhaps simply killed.

B

Abdoulaye attended an asylum interview in December 2002; in May 2007, the asylum officer referred his case to an Immigration Judge (IJ). (The record does not reveal the reason for the five-year delay.) After several continuances, the hearing on the merits of Abdoulaye's application commenced on February 5, 2009, by which time Abdoulaye had added an application for adjustment of status based on his marriage to a U.S. citizen. The hearing quickly focused on Abdoulaye's role in the 2002 Diffa mutiny and specifically on whether his actions amounted to “terrorist activity” as that term is defined by 8 U.S.C. § 1182(a)(3)(B). When it became clear that Abdoulaye's counsel was not prepared to address this issue, the IJ continued the hearing until November 12.

At both the February and November hearings, Abdoulaye insisted that his role in the mutiny was very minor. He emphasized that he was merely a corporal and thus not in a position to lead or give orders. He claimed that he intended only to participate in the mutiny, just as hundreds of his fellow soldiers had done. He denied having any significant role in planning the mutiny and stated that he was following orders from his superiors. Abdoulaye further objected to the characterization of the mutiny as a violent uprising, arguing that it was more akin to a peaceful protest. He maintained that he and his fellow mutineers did not even have weapons. He also denied that the governor or others had been taken hostage; rather, as he understood it, the soldiers had done no more than to speak to the governor. When presented with news reports that gave a contrary account of the mutiny, Abdoulaye suggested the reports were inaccurate and pointed out that, in any event, he had fled Niger before the actual mutiny. Abdoulaye additionally disputed the accuracy of a Nigerien government document (even though he had submitted it) that listed him as one of six organizers of the mutiny. He suggested that the document listed him as an organizer only because the government did not know his whereabouts.

Abdoulaye explained the discrepancies between his testimony to the IJ and the statements made in his original asylum application as the product of mistakes made in translating his written statement from French into English. He asserted that he was only about 30% proficient in French, suggesting that this too could account for inaccuracies in his asylum application. He made the latter argument notwithstanding the fact that he had consistently listed French as his native language and relied on a French interpreter throughout his immigration proceedings up until his final appearance before the IJ in November 2009.

After considering the evidence, the IJ concluded that Abdoulaye's role in the mutiny fell within the statutory definition of “engag[ing] in a terrorist activity.” Section 1182(a)(3)(B)(iii)(II) defines terrorist activity to include the following:

seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

The IJ observed that the Diffa mutineers' seizure of the regional governor in order to demand changes in government policy fell squarely within this definition, and although Abdoulaye was not present when the seizure took place, the IJ found that he was involved in planning the mutiny. (The statute defines “engag[ing]” in terrorist activity to include preparing and planning a terrorist activity. § 1182(a)(3)(B)(iv)(II).) The IJ rejected Abdoulaye's characterization of the mutiny as a non-violent protest involving nothing more than a “conversation” with the governor; Abdoulaye's version was not supported by any evidence beyond his own testimony, and news reports of the mutiny from the BBC and the United Nations Office for the Coordination of Humanitarian Affairs directly contradicted Abdoulaye's depiction of events. The IJ also rejected Abdoulaye's disavowal of his role as a planner of the mutiny. The judge commented that even if he accepted that Abdoulaye's asylum application overstated his role, Abdoulaye's own testimony demonstrated that he had been involved with the mutiny at the planning stages. Other evidence—including Abdoulaye's flight from Niger on the eve of the mutiny and the government document identifying Abdoulaye as an organizer—corroborated the fact that his involvement was non-trivial. All of this added up, in the IJ's view, to the conclusion that Abdoulaye had provided material support for terrorism, as described in Section 1182(a)(3)(B)(iv)(VI). This served as an alternative basis for Abdoulaye's inadmissibility.

Although the terrorism finding rendered Abdoulaye ineligible for adjustment of status, asylum, and withholding of removal under both 8 U.S.C. § 1231 and the CAT, he remained eligible for deferral of removal under the CAT. The IJ granted this relief after concluding that Abdoulaye had established that he would “more likely than not” be subjected to torture if forced to return to Niger. The IJ based this conclusion on Abdoulaye's expressed fear of imprisonment and torture, as well as on U.S. State Department reports indicating that the Nigerien government had arrested and tried soldiers involved in the 2002 mutiny, sentencing several to prison terms of three to seven years.

C

Abdoulaye and the government cross-appealed to the BIA, which affirmed the IJ's determination that Abdoulaye engaged in terrorist activity. It declined to reach the additional question whether Abdoulaye provided material support for terrorism. The Board first observed that the mutineers' seizure of...