Cooke v. Mukasey

• Decision Date: 14 August 2008
• Docket Number: No. 07-2939.,07-2939.
• Citation: 538 F.3d 899
• Parties: Wilfred Abayomi COOKE; Alice M. Cooke, Petitioners, v. Michael MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

538 F.3d 899

Wilfred Abayomi COOKE; Alice M. Cooke, Petitioners, v. Michael MUKASEY, Attorney General, Respondent.

No. 07-2939.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2008.

Filed: August 14, 2008.

Elizabeth Holmes, argued, Bloomington, MN, for petitioner.

Edward Earl Wiggers, argued, Washington, DC, for respondent.

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

Wilfred and Alice Cooke petition for review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ) to deny their applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). The Cookes are natives and citizens of Liberia who allege that they fear persecution in Liberia based on Mr. Cooke's political beliefs. We conclude that Mr. Cooke suffered past persecution on account of his political beliefs but that the IJ did not abuse her discretion in determining that conditions in Liberia have changed such that the Cookes no longer have a well-founded fear of being persecuted if they were to return. We therefore deny the petition for review.

I.

The Cookes entered the United States as nonimmigrant visitors for pleasure and remained beyond the periods authorized by their visas. In June 2000, within a year of his entry, Mr. Cooke filed an affirmative application for asylum and withholding of removal that included Mrs. Cooke as a derivative beneficiary. The Immigration and Naturalization Service, now known as the Department of Homeland Security (DHS), began removal proceedings against the Cookes in July 2002. See Immigration and Naturalization Act (INA) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). At an initial administrative hearing on October 24, 2002, the Cookes conceded removability. In November 2003, the parties agreed to administratively close (suspend) the case because the United States had granted Liberians Temporary Protected Status (TPS).¹ DHS moved to recalendar the case in November 2004, despite the fact that TPS was still in place for Liberians. The IJ held an additional hearing on March 29, 2006.

Mr. Cooke seeks asylum based on his membership in the Unity Party of Liberia and his opposition to the party headed by Charles Taylor, the National Patriotic Front of Liberia. Documents in the record and Mr. Cooke's testimony show that Mr. Cooke joined the Unity Party in 1985 and was responsible for recruiting members to the party. Mr. Cooke's brother Peter Cooke was also active in the Unity Party and ran for political office as a member of that party.

In 1987, Mr. Cooke began working as an accountant for the Liberian Ministry of Finance (MOF). At that time, Samuel Doe was the president of Liberia. But in December 1989, Taylor launched an armed uprising to overthrow Doe's government. Civil war broke out. In May 1990, when Taylor's rebel troops approached the capital city of Monrovia, the Cookes left the city and moved with their children to another house that they owned in Cape Mount, Tallah.

Mr. Cooke testified that in June 1990, he was at his home in Cape Mount when he heard gunfire in his front yard. When he went outside, he saw about seven of Taylor's rebels with guns. The rebels asked him if he was the Wilfred Cooke who used to work for the MOF under the Doe government. When Mr. Cooke said yes, the rebels accused him of "helping the government squander the peoples [sic] money." Admin. R. at 931. They struck him on the head several times with the butts of their AK-47 rifles. Mr. Cooke fell unconscious. The rebels stripped him naked and tied him up. Then they carried Mr. Cooke to an abandoned schoolhouse and threatened to kill him. The townspeople began pleading for Mr. Cooke's release and gave the rebels a bribe of around $300-$400. At that point, the rebels released Mr. Cooke. He was taken to a clinic and his head wound was treated. The beating left a scar on Mr. Cooke's head and resulted in an enlarged blood vessel on his forehead. The IJ observed that Mr. Cooke has "an indent" going from side to side on the top of his head. Id. at 151. Medical reports indicate that Mr. Cooke has a "sunken ridge between the frontal and parietal regions" of his head. Id. at 482. Mr. Cooke testified that he has a "pulsing" in his head. Id. at 172. He was treated for this condition in Liberia from 1996 to 1999, and documents in the record show that he has continued treatment in the United States. He takes prescription medication for head pain. Mrs. Cooke testified that Mr. Cooke also suffers from memory problems since the beating.

Doe was killed by rebels in September 1990. In November 1990, the Cookes fled to Sierra Leone, where they were given refugee status by the United Nations (U.N.). They lived in a refugee camp erected in a sports stadium. Mr. Cooke was treated at a hospital in Sierra Leone for pain in his head. In 1992, an interim government was established in Liberia and the Cookes returned to Liberia. Mr. Cooke went back to work at the MOF under the interim government. Taylor, however, continued to cause trouble in Liberia.

The next alleged act of persecution by Taylor's troops was suffered by Mrs. Cooke in June 1997, when Mr. Cooke was in the United States visiting his mother. Mrs. Cooke testified that seven or eight of Taylor's rebels came to her house in the middle of the night and demanded information about Mr. Cooke. The rebels said that they had heard that Mr. Cooke had gone to the United States to raise funds for the Unity Party. They pushed Mrs. Cooke and struck her back with a belt. Her back was cut by the belt buckle and began to bleed. The rebels held her children at gunpoint, threatening to kill them if they cried. The rebels stole clothing and money and then left. Mrs. Cooke was treated at a clinic for the wound on her back. Upon being told the next day of the attack, Mr. Cooke returned to Liberia. Mrs. Cooke applied for a passport, which was issued on February 24, 1998. She then got a United States visa, which was issued on May 13, 1998. She entered the United States on June 19, 1998. Both Mr. Cooke and Mrs. Cooke testified that a scar from the beating remains on Mrs. Cooke's back.

An election was held in Liberia in July 1997. Mr. Cooke's brother Peter Cooke ran unsuccessfully as a Unity Party candidate for the legislature. Taylor defeated Unity Party candidate Ellen Johnson-Sirleaf to become President of Liberia. Mr. Cooke remained in his position at the MOF. He testified that sometime in early 1998, he leaked information to the press about government corruption by high-ranking officials in Taylor's party. Mr. Cooke exposed that the Deputy Minister of Revenue had embezzled government money.

Mr. Cooke testified that in August 1998, police from Taylor's government burst into his office at the MOF. The police declared that Mr. Cooke's brother had signed a document that would have allowed Johnson-Sirleaf to obtain money from the U.N. to overthrow Taylor's government and that Mr. Cooke "was part of it."² Admin. R. at 159. The police took Mr. Cooke to a police station. He was detained, stripped to his underwear, and put in a cell shared by seven other people and having no toilet facilities. He was later taken to an interrogation room filled with smoke. The police interrogated him about his and his brother's involvement with the Unity Party. They also accused Mr. Cooke of leaking information about government corruption to the press because he belonged to a party other than Taylor's party. After about twenty minutes of exposure to the smoke, Mr. Cooke fainted. After two or three days of questioning, the authorities released Mr. Cooke but told him to report to the station every few days.

Mr. Cooke testified that he came to the United States in October 1998. In March 1999, Mr. Cooke returned to Liberia. He testified that he felt compelled to return to help his three children, who were staying with Mrs. Cooke's sister. After changing the last names of his children and making arrangements for them, Mr. Cooke entered the United States a final time on August 9, 1999. Mr. Cooke placed in the administrative record a letter dated August 13, 1999, allegedly signed by a filing clerk at the MOF. The letter advised Mr. Cooke that the Auditor General of Liberia had ordered Mr. Cooke arrested because of the government corruption that he exposed in 1998.

On March 29, 2006, the IJ issued a decision finding the Cookes removable as charged and denying their applications for asylum, withholding of removal, and CAT relief. Although the IJ found the Cookes' evidence credible, she determined that the incidents described by the Cookes did not rise to the level of persecution. Alternatively, the IJ determined that country conditions in Liberia had changed such that the Cookes could not show a well-founded fear of future persecution if they were to return. The BIA affirmed the IJ's decision without issuing a separate opinion. The IJ's decision is therefore the final agency determination from which the Cookes appeal. See 8 C.F.R. § 1003.1(e)(4).

II.

The INA gives the Attorney General discretion to grant asylum to any individual who is a "refugee." 8 U.S.C. § 1158(b)(1). A refugee is defined by the INA as an alien who is unwilling or unable to return to his or her country of nationality "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." Id. § 1101(a)(42)(A). An alien petitioning for asylum bears the burden of proving persecution or a well-founded fear of persecution on account of one of the enumerated factors. 8 C.F.R. § 208.13(a). "Persecution is the infliction or threat of death, torture, or injury to one's person or freedom, on account of [a protected characteristic]." Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002). "Low-level intimidation and harassment alone do not rise...