Konan v. Attorney General of U.S., 04-3467.

• Decision Date: 30 December 2005
• Docket Number: No. 04-3467.,04-3467.
• Citation: 432 F.3d 497
• Parties: Kouame Adonics KONAN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

432 F.3d 497

Kouame Adonics KONAN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 04-3467.

United States Court of Appeals, Third Circuit.

Argued October 20, 2005.

December 30, 2005.

Nathaniel A. Vitan (Argued), Amanda P. Biles, Latham & Watkins LLP, Washington, D.C., for Petitioner.

Peter D. Keisler, Assistant Attorney General, Christopher C. Fuller, Senior Litigation Counsel, Office of Immigration Litigation, Paula K. Speck, Gretchen M. Wolfinger (Argued), Department of Justice, Washington, D.C., for Respondent.

Before SMITH, BECKER, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Kouame Adonics Konan petitions for review of a decision by the Board of Immigration Appeals ("BIA"), denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Because we conclude that the BIA did not explain its rationale for denying Konan's claim that he was persecuted due to membership in a particular social group (his status as the son of a military police officer), there is, as of yet, nothing for us to review. Basic principles of administrative law thus require that we remand the case for the BIA to consider this claim in the first instance. We also find that substantial evidence does not support the BIA's conclusion that Konan did not suffer past persecution on account of imputed political opinion. We will grant the petition for review.

I. Facts

Konan was born in Bouake, Côte d'Ivoire, in 1980. He is a Catholic, a member of the Baoule tribe, and a supporter of President Laurent Gbagbo's government. His father was an officer in the Gendarmerie, the Ivorian military police force. Konan lived with his father and his brother in the Gendarmerie camp of N'Gattakro in Bouake ("the Gendarmerie camp" or "the camp") along with approximately 100 other gendarmes and their families. On September 19, 2002, rebel forces attacked the Gendarmerie camp, killing Konan's father and brother.

To put this attack in context, we provide a short summary of the recent history that gave rise to it, all of which is documented in the record. In December 1999, a group of "army mutineers" loyal to General Robert Guéi led a coup that overthrew President Konan Bédié. In a presidential election held the following year, the Ivorian Supreme Court disqualified all of the leading candidates except for Guéi and Gbagbo. Although Gbagbo won 51.9 percent of the vote, compared to Guéi's 28.7 percent, Guéi claimed victory. Guéi's attempted power grab triggered a popular uprising. Gbagbo was then declared the winner of the election, but that result was contested by followers of Alassane Dramane Ouattara, a former prime minister. Armed clashes began in which the government army and supporters of Gbagbo's party, the Front Populaire Ivoirien, were allied against Ouattara supporters. In 2001 and 2002, the various factions appeared to make progress toward reconciliation. Local elections were held without incident, and Bédié, Ouattara, and Guéi took part in a forum of national reconciliation. The economy seemed to be recovering, and a government of national unity was formed.

The situation changed suddenly on September 19, 2002, when junior officers who had once been affiliated with Guéi mutinied in three Ivorian cities: Abidjan, Korhogo, and Bouake. Bouake is the location of the N'Gattakro Gendarmerie camp where Konan lived. The rebels, comprised largely of Muslims, referred to themselves as the Mouvement Patriotique de la Côte d' Ivoire ("MPCI").¹ During the violence in Abidjan, Guéi was killed, allegedly by government assassins. There were also killings or attempted killings of other political leaders. The government suppressed the mutiny in Abidjan, but the rebels soon seized the northern half of the country. According to the State Department's 2003 Country Report on Côte d'Ivoire, "[t]he failed coup attempt and ongoing rebellion quickly escalated into the country's worst crisis since independence in 1960." Both the rebels and the government, including the gendarmes, committed rampant human rights abuses.

On the morning of September 19, Konan was engaged in his usual work: selling religious statues and cutting people's hair in the street. In the early afternoon, he heard gunfire coming from the camp, and ran toward it. Standing at the front entrance of the camp, Konan saw rebels attacking the camp with large guns and missile launchers. The gendarmes in the camp had only small pistols. Konan watched as the rebels shot through the hollow cement walls of his house, igniting the wooden furniture and propane tanks inside. Konan's father and brother were burned alive. Konan stated in his affidavit, "I could hear my father and brother screaming and there was nothing I could do. The rebels executed my father and my brother and destroyed my home."

In October of 2002, government forces briefly recaptured Bouake. Believing, incorrectly, that the government had secured the city, a crowd came out to celebrate, but the rebels fired into the crowd and reportedly executed 100 gendarmes who had been captured in the initial rebel attack.

By this time, however, Konan was far from Bouake. After the attack on the Gendarmerie camp, Konan fled with hundreds of others, eventually encountering French troops who provided some protection. Konan reached Yamoussoukro, Côte d'Ivoire, where he spent eleven months in a refugee camp. French troops and Red Cross workers provided some assistance to the refugees. Konan moved to another camp, this time in San Pedro (also in Côte d'Ivoire) when he heard rumors that rebels planned to attack Yamoussoukro. He went to San Pedro's port, Zone Portuaire, because it was well-guarded by government forces. Even at the port, however, he would wake up "[e]very morning... to find more dead bodies on the street," and he feared a rebel attack on San Pedro.

Konan learned of a cargo ship leaving Zone Portuaire, and he boarded the ship as a stowaway. Five days later, he emerged from hiding due to a severe toothache and was spotted by the crew. The ship arrived in Philadelphia, and Konan was taken into custody.

On February 8, 2004, Konan filed an application for asylum, and his case was assigned to an Immigration Judge (IJ). In the Immigration Court, Konan argued that he was entitled to asylum because he faced past persecution and had a well-founded fear of future persecution for reasons enumerated in 8 U.S.C. § 1101(a)(42)(A). First, Konan argued that he faced persecution on account of his "membership in a particular social group," specifically, his status as the son of a gendarme. See 8 U.S.C. § 1101(a)(42)(A). Second, Konan contended that he faced persecution due to imputed "political opinion" in that he supports the Ivorian government. See Id. Konan also requested asylum on other bases, in addition to withholding of removal and relief under the Convention Against Torture, but he does not press these claims on appeal.²

On April 12, 2004, the IJ issued an oral decision. The IJ accepted Konan's account of the attack on the Gendarmerie camp, but denied all of Konan's claims. As addressed more fully below, the IJ did not discuss Konan's membership in a particular social group claim. He apparently rejected Konan's imputed political opinion claim on the ground that the attack on the Gendarmerie camp was a strike against the government itself, not an attempt to kill government supporters, relying on Matter of Fuentes, 19 I. & N. Dec. 658, 661-62 (BIA 1988) (holding that attacks on police officers viewed as extensions of the state do not constitute persecution). The BIA affirmed the IJ's decision without opinion.

II. Jurisdiction and Standard of Review

We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252. When the BIA affirms an IJ's decision without opinion, we review the IJ's decision as the final agency determination. Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004). We consider whether findings of fact (including whether Konan has demonstrated past persecution or a well-founded fear of future persecution) are supported by substantial evidence. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001). This standard requires great deference to the decisions of the BIA: "If a reasonable fact finder could make a particular finding on the administrative record, then the finding is supported by substantial evidence." Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003); see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

III. Analysis

A. Membership in a Particular Social Group

As this Court has explained, "[a] grant of asylum under § 1158(b)(1) of the Immigration and Nationality Act (INA) allows an otherwise removable alien to stay in the United States." Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). The Attorney General may grant asylum to a "refugee," 8 U.S.C. § 1158(b)(1), which is defined as "a person unable or unwilling to return to the country of that person's nationality or habitual residence because of past persecution or because of a well-founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion. Gao, 299 F.3d at 271-72; 8 U.S.C. § 1101(a)(42)(A). To show past persecution, an applicant must demonstrate "`(1) an incident, or incidents, that rise to the level of persecution; (2) that is `on account of' one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either `unable or unwilling' to control.'" Id. (quoting Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000)).

An applicant who demonstrates past persecution is entitled to a presumption that he will suffer future persecution. 8 C.F.R. § 208.13(a)(1); Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). "That presumption can be rebutted if the INS establishes by a preponderance of the evidence that...