Tambadou v. Gonzales

• Decision Date: 03 May 2006
• Docket Number: Docket No. 02-8424-AG.
• Parties: Cheikh TAMBADOU, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 298

446 F.3d 298

Cheikh TAMBADOU, Petitioner, v. Alberto GONZALES,^* Respondent.

Docket No. 02-8424-AG.

United States Court of Appeals, Second Circuit.

Argued: August 25, 2005.

Decided: May 3, 2006.

Brian D. Lerner, Long Beach, CA, for Petitioner.

Brent I. Anderson, Assistant United States Attorney, for Eric F. Melgren, United States Attorney for the District of Kansas, Witchita, Kansas, for Respondent.

Before: SACK, KATZMANN, and B.D. PARKER, Circuit Judges.

B.D. PARKER, Jr., Circuit Judge.

The petitioner, Cheikh Tambadou (A73-551-415), a thirty-one-year-old Muslim native of Mauritania, seeks review of an order of the Board of Immigration Appeals ("BIA") dismissing his appeal from the denial for his application for asylum. Tambadou also petitions this Court for review of Immigration Judge Helen Sichel's ("IJ") order denying his application for asylum, withholding of removal and voluntary departure. The IJ denied asylum and withholding of removal because she concluded that Petitioner found a safe haven in Senegal. The BIA also denied asylum, but on different grounds. First, the BIA incorrectly stated that the IJ had relied in part on an adverse credibility finding. And then the BIA concluded that the claim for asylum failed because Petitioner "no longer has an objectively reasonable fear of future persecution" in Mauritania due to a "fundamental change in circumstances" there.

Because we find that the BIA's conclusion regarding changed circumstances was not based on substantial evidence and because the BIA neither adopted nor rejected the IJ's basis for denial, we grant the petition, vacate the order, and remand for further proceedings.

BACKGROUND

Tambadou was born in the town of Jowel, Mauritania and raised in a family of farmers. His ethnic background is Soninke, a small minority group in Mauritania. The Maurs, the dominant ethnic group in Mauritania, controlled the government and, as Tambadou testified, "have a deep hatred for the Soninke because [of] the color of our skin and our ethnic background." Tambadou supported, but was not a member of, the Liberation Front of Africans in Mauritania ("FLAM"), an organization whose main objective is "equality among all the groups, white and black." According to the United Nations High Commissioner for Refugees ("UNHCR"), the Mauritanian government considers FLAM a threat to its control of the country.

Tambadou further testified that, at age 15, while preparing to work in the field with his brother and father, a military vehicle with six officers inside stopped at the field. When the officers got out of the truck, Petitioner saw that there were a number of people detained in the truck. The officers asked for their identification cards. When his father protested and inquired, the officers stated that they "heard [they] were not Mauritanians, [that they were] from Senegal." Tambadou and his brother were too young to have identification cards, but did have birth certificates. His father returned to the house, retrieved family identification papers, and presented them to the officers, who cursorily examined them, tore them up, and, again, accused them of not being native Mauritanians. Tambadou testified that when he protested, the officers grabbed and beat him, threw him into the truck, and took him to prison where he remained for two months. Tambadou testified that while in jail he received little food and frequent beatings and was housed in a crowded cell where the prisoners slept in shifts due to a lack of space. The guards repeatedly asked Tambadou and the other prisoners to confess that they were Sengalese and not Mauritanian. For over two months, Tambadou maintained that he was Mauritanian, but he and other prisoners eventually acquiesced and told their jailers that they were Senegalese.

At that point, in February 1990, the officers, at gunpoint, escorted him with fifteen other detainees by truck to a river bank where they were told to cross the river or be shot. Tambadou and the others entered the river by canoe while the officers fired at them. When one of the shots pierced the canoe, Tambadou hit his head on a metal object and the canoe overturned. He and the others were then picked up in a second canoe by the International Red Cross.

Red Cross representatives were present because, during the period 1989 to 1991, more than 70,000 Mauritanians were expelled or fled. Red Cross representatives took the group across the river to Senegal, and Tambadou was then taken, unconscious, to a hospital in Matam, Senegal where he remained for over two months. In May, 1990, the Red Cross representatives transferred him to a refugee camp where he was reunited with his family. At the hearing, Tambadou introduced into evidence his identification card from the camp.

Tambadou testified that he left the camp in November 1995 because the Red Cross was not providing adequate food and went to Dakar where he found work as a porter in a store. His family remained at the camp. In January 1996, Tambadou left Dakar and traveled to the United States by ship, arriving in Miami in February 1996 with the assistance of a French man to whom he had been introduced in Dakar. From there, he traveled to New York and lived in Brooklyn, where he had relatives.

In September 1997, Tambadou applied for political asylum, withholding of removal, and voluntary departure. The IJ denied the application. While the IJ questioned Tambadou's credibility, finding that his testimony "was rather flat" and "lacking in detail," she explicitly did "not base [her] decision on [a] credibility determination." Instead, she concluded that Tambadou "had found safe haven there both at the refugee camp and in the city of Dakar." The IJ's main basis for this conclusion was a letter from the Deputy Representative of the UNHCR which stated that Mauritanian refugees in Senegal had the right to work, own property, attend school, and travel. The IJ stated that "[t]here is absolutely nothing in the record that would suggest that the respondent had not received safe haven in Senegal." Tambadou appealed to the BIA.

The BIA denied Tambadou's appeal, but on different grounds, finding "a fundamental change in circumstances in Mauritania such that [Tambadou] no longer has an objectively reasonable fear of future persecution there." In reaching this conclusion, the BIA relied almost exclusively on a State Department Report published in 1997, which reported that the Mauritanian government was cooperating with humanitarian groups "to assist returnees from the refugee camps in Senegal" who were expelled between 1989 and 1991. The BIA found that, because Petitioner did not offer contradictory evidence, the State Department profile was entitled to deference. The BIA then concluded that Tambadou could not reasonably entertain a well-founded fear of persecution in Mauritania and dismissed his appeal. This appeal followed.

DISCUSSION

When "the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA." Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). Here, the BIA did not affirm or reject the IJ's basis for denying asylum, but rested its decision on a different ground — a finding of changed circumstances.

As previously noted, although the IJ questioned the Petitioner's credibility, this was not the basis for her decision. The IJ explicitly based her decision entirely on her conclusion that the Petitioner had found a safe haven in Senegal. Furthermore, the IJ did not explain her vague statements regarding Petitioner's demeanor, make particularized findings regarding his credibility, or, for that matter, list a single inconsistency in his testimony. The BIA incorrectly concluded that the IJ had relied on an adverse credibility finding, stating that the IJ "denied the respondent's claim in part because she found that his testimony was not credible." But it did not explain this conclusion or otherwise address the issue of the Petitioner's credibility. We are confounded by this approach. We have stated that because we "would sustain a petition for asylum or withholding of deportation based on credible testimony alone ... [t]he BIA's failure to make a credibility assessment may have denied [Petitioner] the potential benefit of this rule below and frustrates appellate review on this question." Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000).

Upon a finding that an alien could be removed to a safe third country, an IJ previously had discretion to deny asylum under the former 8 C.F.R. § 208.13(d).² However, the IJ did not analyze the safe haven issue in detail, but simply stated that there was nothing in the testimony which indicated persecution at the refugee camp or difficulties living and working in Dakar. (This conclusion inexplicably disregarded the Petitioner's testimony about conditions in the refugee camp). While finding that Tambadou had found a safe haven in Senegal, the IJ concluded that it was "questionable whether the respondent was firmly resettled in Senegal." See 8 U.S.C. § 1158(b)(2)(A)(vi) (asylum may not be granted to an alien who `was firmly resettled in another country prior to arriving in the United States'). The BIA did not mention the safe haven issue, let alone adopt the IJ's reasoning. Because the BIA based its decision on changed country conditions, it is not clear whether the BIA adopted the IJ's conclusion regarding Senegal as a safe haven. Significantly, reaching a safe haven in a new country, as opposed to firm resettlement, would not have been a bar to asylum. See 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.15. Therefore, even if the BIA agreed with the IJ's safe haven conclusion, it could still have found the petitioner eligible for asylum. Consequently, on this appeal, we need only address the BIA's ruling on changed circumstances. "[W]hen the situation presented is the BIA's application of legal principles to undisputed facts ... our review is de novo."...