Jabateh v. Lynch

Decision Date05 January 2017
Docket NumberNo. 16-1112,16-1112
Citation845 F.3d 332
Parties Nassuma Fomba JABATEH, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Steven Kenneth Wichmer, Timothy E. Wichmer, Attorneys, Wichmer & Groneck, St. Louis, MO, for Petitioner.

OIL, Daniel I. Smulow, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Bauer, Kanne, and Hamilton, Circuit Judges.

Bauer, Circuit Judge.

Petitioner Nassuma Fomba Jabateh, a native and citizen of Liberia, filed a petition with this Court seeking to vacate an order from the Board of Immigration Appeals that denied his applications for asylum and withholding of removal under 8 U.S.C. § 1231(b)(3) and the Convention Against Torture, 8 C.F.R. § 1208.16(c). Petitioner's applications were denied on the basis that he had provided material support to the Tier III terrorist organization Liberians United for Reconciliation and Democracy, and thus was rendered ineligible for any form of relief. Alternatively, the BIA also denied his applications on the merits. Further, the BIA denied Petitioner's request for deferral of removal under CAT, because he failed to show that it was more likely than not he would be tortured if returned to Liberia, and Petitioner challenges that conclusion. Last, Petitioner seeks review of the BIA's conclusion that it was jurisdictionally barred from reviewing his application for an adjustment of status. For the reasons that follow, we affirm the BIA's decision.

I. BACKGROUND
A. Factual Background

A civil war engulfed Liberia from 1989 to 1997, claiming the lives of 200,000 people and displacing a million others into refugee camps in neighboring countries. A government official named Charles Taylor led a band of rebels known as the National Patriotic Front in invading Liberia from the Ivory Coast at the outset of the war. On July 14, 1989, Taylor's rebels attacked Petitioner's hometown of Barkedu and massacred fifty-eight Mandingo Muslims, including Petitioner's brother, Abu Jabateh. On this same date, Petitioner was exiled to Guinea, where he stayed until 2003. The war ended in 1997 with a peace agreement and the election of Taylor to the presidency.

In July 1999, Liberian exiles formed the military and political organization Liberians United for Reconciliation and Democracy in response to dissatisfaction with the implementation of the 1997 peace agreement. LURD consisted mostly of Mandingos and Krahns, ethnic groups from northern Liberia that fought Taylor during the civil war. The group's primary objective was to remove Taylor from office. LURD's leader was Sekou Conneh, a former Guinean tax collector with close connections to the group's financial backers and the president of Guinea.

In mid-2000, a civil war once again erupted in Liberia. LURD launched military operations from across the border in Guinea in order to unseat Taylor. The war had a religious undertone in that LURD forces were largely Mandingo Muslims, while government troops were mostly animists and Christians. LURD forces failed to stop criminal behavior by insurgents, such as raping and looting. The forces raped a young woman in front of her husband and children after she was accused of supporting the government. They also reportedly abducted Liberian refugees in Sierra Leone and forced them to haul weapons and goods under threat of injury or death. Those who complained of exhaustion, thirst, or hunger were shot and left to bleed to death.

While Petitioner lived in Guinea, he became close with Conneh, the head of LURD. Conneh asked Petitioner to interpret for him at doctor appointments and social activities because Petitioner spoke French. Petitioner would sometimes receive monetary compensation for his services, which he provided to Conneh. He acknowledges that he was aware of LURD's status as an armed insurgent group, and that the group was connected in some way to the Guinean government. After returning to Liberia in 2003, Petitioner had no further contact with Conneh. That same year, representatives from Taylor's government, LURD, and a second insurgent group negotiated a peace treaty, which became effective on August 18, 2003. This treaty gave LURD control over several governmental departments; Taylor resigned his post as president and was exiled in Nigeria.

In September 2003, Petitioner was appointed to serve as Liberia's Director of the Bureau of National Procurement; several subordinate employees resigned because they did not wish to work for a Mandingo Muslim. In addition, he received anonymous phone calls in which the callers threatened to do everything possible to remove him from his position.

Most alarmingly, Petitioner's home was burned down by a large mob as part of a tribal and religious land dispute in October 2004. The mob was largely comprised of members of Taylor's dissolved National Patriotic Front. Petitioner claims that the homes of several other Mandingo Muslim government officials also were burned down on the same day, and Petitioner believed that they were targeted because of their status as Mandingo Muslims. Sometime later, Petitioner's office was raided and computers were stolen.

Petitioner entered the United States on May 7, 2005, on an A-2 visa, a nonimmigrant visa that allows foreign officials to enter the country to engage in official duties or activities on behalf of their national government. Petitioner continued to serve as director of National Procurement. The purpose of his visit was to arrange for the purchase of stationery, office furniture, and equipment.

B. Procedural Background

A month after his arrival, Petitioner filed an affirmative application for asylum. Petitioner contended that he was eligible for asylum and withholding of removal because he suffered past persecution and fears future persecution on account of his status as a Mandingo Muslim, as well as his political opinion and membership in a particular social group—"Mandingo Muslims who are governmental officials." He also contended that he was eligible for CAT protection because it was more likely than not that he would be subjected to torture with the consent or acquiescence of the Liberian government.

On May 23, 2008, an asylum officer found no basis to grant Petitioner's application, and referred his case to Immigration Court. DHS issued a Notice to Appear to Petitioner, charging him with removability under 8 U.S.C. § 1227(a)(1)(C)(i), as an alien who failed to maintain nonimmigrant status. Petitioner conceded his removability.

On July 16, 2009, Petitioner applied for an adjustment of his immigration status, pursuant to § 13 of the Act of September 11, 1957, now codified at 8 U.S.C. § 1255b. An adjustment under § 13 is available to an alien who, having been admitted under §§ 101(a)(15)(A)(i) or (ii) or 101(a)(15)(G)(i) or (ii) of the INA, has performed diplomatic or semi-diplomatic duties, can establish compelling reasons why he or she is unable to return to the country that accredited them as a diplomat, and whose adjustment of status is in the national interest. See 8 C.F.R. § 245.3. Petitioner's counsel requested that the Immigration Judge either terminate the proceedings to allow the adjudication of the petition before the U.S. Citizenship and Immigration Services, or set a hearing date at which point the IJ could consider the adjustment application on the merits prior to his other applications for relief. The government opposed termination, so the IJ scheduled a hearing.

The IJ conducted the hearing on May 6, 2011, during which Petitioner testified in support of his applications for relief. At the close of Petitioner's testimony, the IJ asked the government if it would be willing to terminate the case without prejudice to permit the USCIS to adjudicate Petitioner's application for adjustment of status. The government contended that Petitioner was ineligible for such an adjustment because he provided material support to LURD. The IJ continued the case and ordered briefing from both parties on the issue, and offered Petitioner's counsel an opportunity to file the adjustment application with USCIS.

At the next hearing on April 6, 2012, Petitioner's counsel informed the IJ that Petitioner had not yet received a final decision on his adjustment application. The government anticipated that USCIS would recommend a denial, which it did on April 17, 2012, finding that the record was insufficient to conclude that Petitioner performed diplomatic or semi-diplomatic duties as required by law. Petitioner's counsel agreed not to renew the adjustment application before the IJ, and instead, to defer an appeal of the decision to the BIA, rather than appeal to the USCIS Administrative Appeals Office.

The IJ found that Petitioner's "sporadic, typically unpaid" interpretation services for Conneh did not constitute material support; nonetheless, the IJ denied Petitioner's applications for asylum and withholding of removal, finding that Petitioner failed to prove past persecution or a well-founded fear of future persecution on a protected ground if he returned to Liberia.

Regarding Petitioner's application for withholding of removal under CAT, the IJ found that Petitioner had not demonstrated that it was "more likely than not" that he would be tortured. Thus, the IJ denied all of Petitioner's applications for relief and ordered him removed. Finally, the IJ found that Petitioner met the statutory requirements for second stage voluntary departure under § 240B of the INA, and granted him 60 days to depart the United States, subject to certain conditions.

Both the government and Petitioner appealed the IJ's decision to the BIA. The government challenged the IJ's grant of voluntary departure, as well as the determination that Petitioner had not provided material support to a terrorist organization. Petitioner challenged the...

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