Sowe v. Mukasey

• Decision Date: 19 August 2008
• Docket Number: No. 06-72938.,06-72938.
• Citation: 538 F.3d 1281
• Parties: Baba SOWE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

538 F.3d 1281

Baba SOWE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-72938.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2008.

Filed August 19, 2008.

Mark B. Nerheim, Bauman-Becia Law Group, Seattle, WA, for the petitioner.

Marion E. Guyton and William C. Erb, Jr., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-569-509.

Before: ALARCÓN, SUSAN P. GRABER, and JOHNNIE B. RAWLINSON, Circuit Judges.

ALARCÓN, Circuit Judge:

Baba Sowe, a native and citizen of Sierra Leone, appealed to the Board of Immigration Appeals ("BIA") from the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Sowe presented evidence before an immigration judge ("IJ") that he and his family were persecuted by members of the Revolutionary United Front ("RUF"). We have jurisdiction over his appeal pursuant to 8 U.S.C. § 1252. We deny Sowe's application for withholding of removal and for protection under CAT. We remand his application for asylum to the BIA for a hearing to determine his eligibility pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(A).

I

Sowe entered the United States on or about April 4, 2001. On June 2, 2001, Sowe executed an I-589 form seeking asylum and withholding of removal.¹ He also applied for protection under CAT. On October 15, 2004, the INS served Sowe with a notice to appear, and charged him with removability because he did not possess or present a valid entry document when he was admitted to the United States.

At his removal hearing, Sowe conceded removability. Sowe testified that he was persecuted by the RUF because he is a Muslim Maraka and because of his parents' political affiliations with the United National People's Party, a group aligned with the Sierra Leone government.

Sowe testified that sometime around August 11, 1997, RUF members came to his family's home and asked for his father and brother. AR 58. Sowe testified that the RUF was interested in his family because they were Muslim Marakas who supported the government. Id. The RUF members took Sowe to an RUF camp. There he was beaten and forced to do "hard work in the prison there." Id. at 60. He testified that he was beaten because he "didn't want to tell them where[his] parents were and since they [knew] that [he was] a Muslim Maraka." Id. at 60. Sowe testified that he escaped the camp after three weeks. Id. at 61.

Sowe testified that members of the RUF returned to his family's home on January 10, 1998. AR 62. They forcibly took him to their camp. There he was forced to do laundry, clean, and perform hard labor. Id. at 65. He testified that he was beaten because he is a Muslim Maraka and because he refused to disclose his father's location. Id. at 66-67. After ten days at the camp, Sowe escaped. Id. at 67.

Sowe further testified that on March 4, 1999, members of the RUF returned to his home. Sowe stated that the rebels "just start[ed] beating me and they took me away again." Id. at 68. He testified that the rebels came to his home because his father was a Muslim Maraka and the imam of a mosque, and because his family did not support the RUF. Id. On this date, he was taken by force to an RUF camp because he refused to tell the RUF where his father was. Id. At the camp, he was forced to do odd jobs. Id. He escaped after five days. Id. at 69.

Sowe testified that members of the RUF returned to his family's home on February 10, 2001, and killed his parents. Id. at 69. On the same date, an RUF rebel "took a machete out of [his] pocket and .... chop[ped Sowe's brother's] hand off." Id. at 70-71. The rebels seized Sowe's sister and removed her from her home. AR 71.² Sowe escaped and fled to Freetown. Id. at 72. He later entered the United States on or about April 4, 2001. Id.

The IJ concluded that Sowe was not a credible witness. The IJ stated: "I do not find the respondent to be a credible witness in that, as noted, the Form I-589 is of an extremely skeletal nature and notwithstanding the passage of so many years, has not been supplemented by any kind of a statement." AR 40. Alternatively, the IJ stated:

even if we were to accept the respondent's testimony as true, I would find that there have been dramatic changes in Sierra Leone, as noted above, in terms of the United Nations involvement, the multiple rounds of elections, the progress that has been made so that the international presence is being withdrawn and so forth, so that under such case law as Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir.2003), the objective component of the claim can no longer be established.

AR 42. The IJ's findings regarding the changes in Sierra Leone were based on a 2005 U.S. Department of State Country Report.³ The IJ denied Sowe's application for asylum, withholding of removal, and protection under CAT. The IJ also noted that Sowe was ineligible for voluntary departure. Sowe filed a timely appeal with the BIA challenging the IJ's decision.

II

The BIA dismissed the appeal based on the IJ's alternative holding that, even if Sowe's testimony were deemed credible and demonstrated past persecution, the presumption of future persecution was rebutted by the evidence in the record reflecting a change in country conditions. It stated:

We do not find the harm that the respondent claims to have suffered, that of being detained and beaten by the RUF, to be sufficiently compelling to support a grant of asylum in the absence of a well-founded fear of future persecution (see Matter of Chen, 20 I & N Dec. 16 (BIA 1989)); nor do we find there to be a reasonable possibility that the respondent may suffer other serious harm upon removal to Sierra Leone. See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B).

AR 3. The BIA did not review the IJ's adverse credibility findings. It stated: "We need not reach the issue whether the adverse credibility determination was correct."⁴ Id. The BIA concluded that Sowe had failed to establish his eligibility for asylum and withholding of removal. It also determined that Sowe had failed to demonstrate that if removed to Sierra Leone, he would more likely than not be tortured, as required for relief under CAT.

Sowe's timely petition for review was filed on June 7, 2006.

III

"The BIA's decision that an alien has not established eligibility for asylum is reviewed for substantial evidence." Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). "We review the IJ's factual findings regarding changed country conditions for substantial evidence." Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th Cir. 2005). We also review for substantial evidence the BIA's determination that a petitioner has not qualified for withholding of removal, and that a petitioner is ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653, 657 (9th Cir.2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003). Sowe's petition for review challenges the decisions of the IJ and the BIA on several grounds.

A

Sowe contends that both the IJ and the BIA erred in denying his asylum claim on the ground that changed country conditions made it safe for him to return to Sierra Leone. Unless there is reason to grant discretionary relief pursuant to 8 C.F.R. § 1208.13(b)(1)(iii), an asylum application will be denied if "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 C.F.R. § 1208.13(b)(1)(i)(A).

Sowe's contention that the BIA erred in concluding that the presumption of future persecution had been rebutted by the evidence of changed conditions in Sierra Leone raises a preliminary question as to whether we review the IJ's resolution of this issue or the BIA's conclusion. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995) ("Where the Board ... conduct[s] a de novo review of the record, our review is limited to the decision of the Board except to the extent that the IJ's opinion is expressly adopted by the Board."). Here, the BIA did not state whether it was conducting a de novo review of the IJ's findings regarding country conditions in Sierra Leone. However, its holding regarding country conditions is nearly identical to the IJ's. "To the extent that the BIA incorporates the IJ's decision as its own, we treat the IJ's statement of reasons as the BIA's and review the IJ's decision." Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996).

Sowe first asserts that the IJ and the BIA erred in relying "primarily on the Department of State's country report for 2004 (released February 28, 2005)" to rebut Sowe's future persecution claim on the ground that country conditions had changed. Pet'r Br. at 24. Sowe argues that "[these] generalized materials are insufficient to rebut Mr. Sowe's presumed well-founded fear of future persecution." Id. at 24. Reliance on the 2004 country report was not erroneous. U.S. Department of State country reports are "the most appropriate and perhaps the best resource for information on political situations in foreign nations." Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir.1995) (internal quotations marks omitted).

Next, Sowe contends that

contrary to the BIA's (and the IJ's) assertions,[the 2004 country report indicates that] the "disarmament" has not been completed, the Sierra Leone Police are undisciplined and incompetent, the government of Sierra Leone has not devoted sufficient resources to develop a competent police force, and ... the government of Sierra Leone remains unwilling or unable to control RUF or former RUF rebels.

Pet'r Br. at 26. In support of this statement, Sowe has quoted from selected portions of the 2004 country report. In a...