Barrie v. Atty Gen USA , 169 F. App'x 706 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-7-2006
Barrie v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1486
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-1486
____________
ALPHA BARRIE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A77-550-703)
Immigration Judge Miriam K. Mills
____________
Submitted Under Third Circuit LAR 34.1(a)
February 13, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.
(Filed: March 7, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Alpha Barrie, a native and citizen of Sierra Leone, petitions this Court for review
of an order of the Board of Immigration Appeals (“BIA”) denying his application for
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture (“CAT”).1 Barrie asserts that he presented sufficient evidence that he
was subject to persecution in Sierra Leone on account of his political beliefs and that he
will be tortured if forced to return. After reviewing the submissions of the parties and the
administrative record, we conclude that the BIA’s factual findings were supported by
substantial evidence and will accordingly deny the petition for review.
I.
As we write solely for the parties, and the facts are known to them, we will discuss
only those facts pertinent to our conclusion. Barrie is a farmer who lived with his family
in a village in Sierra Leone, a country that experienced civil war and political unrest for
an eleven-year period between 1991 and January 2002. On June 23, 1997, Revolutionary
United Front (“RUF”) rebel insurgents2 entered Barrie’s village wielding weapons. Over
the course of two days, villagers were beaten, denied food, forced to sit outside and stare
1
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”), art. 3, opened for signature Dec. 10, 1984, S. TREATY DOC. NO.
100-20, 1465 U.N.T.S. 85 (entered into force June 26, 1987).
2
Although in his Application for Asylum and Withholding of Removal Barrie
stated that his village was attacked by “the rebels,” Barrie testified at his hearing that he
was unsure of the affiliation of the insurgents who had entered his village and that he did
not know whom they were fighting against.
2
at the sun during the day, and tied up in a locked room at night. Barrie saw the rebels kill
some villagers and cut off the ears of others. Barrie’s wife informed him that the rebels
were “raping women,” and she later told Barrie that she had been raped, as well.3 In
addition, Barrie asserted that two of his cousins had been killed by the rebels, although he
acknowledged that he had no personal knowledge of what happened to his cousins and
that he had not even seen his own family since February 1999.4 At the end of the ordeal,
the rebels warned the villagers to leave the village because the villagers were “not on
their side,” and they informed the villagers that they were going to burn the village to the
ground.
Barrie asserts that he was at one time a member of the Sierra Leone People’s Party
(“SLPP”), and that he was targeted by the rebels in June 1997 because he supported the
elected government. Although Barrie testified that he would be killed by the rebels if he
was forced to return to Sierra Leone, Barrie conceded that he based his opinion on the
atrocities committed by the rebels back in June 1997. He further told the court that he
had heard through news accounts and from other residents of Sierra Leone that “[t]he
rebels are killing people, the people of the country.”
Barrie and the other villagers fled to a refugee camp in Guinea. After remaining in
the camp for a year and a half, Barrie left the camp for Guinea’s capital city, Conakry.
3
Barrie stated in his application that “[m]y wife told me that they were raping the
women.” At his hearing, however, he testified that “my wife told me that she was raped.”
4
Barrie last inquired of his family’s whereabouts sometime in the year 2000.
3
From there, Barrie stowed away on a ship bound for the United States, and he arrived in
Baltimore, Maryland, on May 20, 1999.
Barrie filed an initial application for asylum and withholding of removal on July 2,
1999, and a second application on April 4, 2000. The Immigration Judge (“IJ”) held a
hearing on September 30, 2003, and rendered an oral decision that same day denying
Barrie’s application. Although the IJ determined that Barrie was credible, she concluded
that Barrie’s sole confrontation with RUF rebels, in June 1997, arose out of general civil
strife rather than persecution. According to the IJ, Barrie “was a member of the civilian
population targeted by rebel forces who had been trying to topple the legitimate
government for a long period of time.” In addition, even assuming that Barrie suffered
past persecution, the IJ concluded that Barrie would not be entitled to asylum or
withholding of removal because of improved country conditions in Sierra Leone which
resulted in a cease fire that has been in effect since January 2002. A State Department
Country Report on Sierra Leone, dated March 31, 2003, which was introduced at the
hearing and relied upon by the IJ, explained that the country recently enjoyed peaceful
parliamentary elections, in which the SLPP won a large majority of seats in the
parliament. The Country Report further stated that the RUF “completed disarmament and
demobilization,” and that the “Government has since asserted control over the whole
country, backed by a large peacekeeping force.”
On January 18, 2005, the BIA affirmed without opinion the IJ’s decision. Barrie
filed a timely petition for review with this Court on February 15, 2005.
4
II.
We have jurisdiction over a final order of the BIA pursuant to 8 U.S.C.
§ 1252(a)(1), (b)(2). Because the BIA affirmed and adopted the decision of the IJ, we
must necessarily review the decision of the IJ. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2
(3d Cir. 2001) (“When the BIA defers to an IJ, a reviewing court must, as a matter of
logic, review the IJ’s decision to assess whether the BIA's decision to defer was
appropriate.”).
We review the IJ’s findings that Barrie was not subject to persecution or torture
upon removal under the deferential substantial evidence standard. Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001). Our task under this standard is to treat the IJ’s
factual findings as “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). A finding is supported by
substantial evidence “if a reasonable fact finder could make a particular finding on the
administrative record.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). In
other words, the IJ’s factual findings must be upheld “unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille, 242 F.3d at 483.
5
III.
Barrie must demonstrate either that he was persecuted or that he has a well-
founded fear of future persecution to support his asylum and withholding of removal
6
claims. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1).5 The Attorney General has discretion to
grant asylum to an alien determined to be a “refugee” under the Immigration and
Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1). The term “refugee” is a statutory term
of art, defined in part under the INA as:
[A]ny person who is outside any country of such person’s nationality . . ., is
outside any country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, that country because of persecution or a well-
founded fear of persecution on account of race, religion, nationality,
membership in a protected social group, or political opinion[.]
Id. § 1101(42)(A) (emphasis added). In order to establish past or future persecution,6 the
applicant must “show past or potential harm rising to the level of persecution on account
of a statutorily enumerated ground that is committed by the government or by forces the
5
In contrast to asylum, which permits an otherwise deportable alien to remain in
the United States, a withholding of removal grants the alien the right not to be deported to
a particular country. Abdulai, 239 F.3d at 545. The Attorney General is required to
withhold removal to a particular country if there is a determination “that the alien’s life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3). We have noted that the “eligibility threshold for withholding of removal is
even higher” than for an asylum claim because the applicant must demonstrate a “clear
probability of persecution.” Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (quoting
Senathirajah v. I.N.S., 157 F.3d 210, 215 (3d Cir. 1998)). Because of this higher
standard, if an alien cannot meet the burden as to the asylum claim, the withholding of
removal claim necessarily fails as well. He Chun Chen v. Ashcroft, 376 F.3d 215, 223
(3d Cir. 2004).
6
We have accepted the BIA’s definition of the term “persecution” to include
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).
7
government is unable or unwilling to control.” Fiadjoe v. Attorney General, 411 F.3d
135, 160 (3d Cir. 2005). A finding of past persecution gives rise to a rebuttable
presumption of future persecution. 8 C.F.R. § 1208.13(b)(1).
Here, Barrie asserts that he was persecuted by RUF forces in June 1997 based
upon his support for the SLPP. Although the IJ found Barrie credible, she concluded that
he failed to submit sufficient evidence that he was persecuted on account of his political
opinions. We agree with the IJ’s conclusion. In order to establish an asylum claim on the
basis of political persecution, the applicant must demonstrate a causal link between his
political opinions and the harm he suffered. I.N.S. v. Elias-Zacarias, 502 U.S. 478
(1992). In other words, Barrie must show that he was targeted because of his political
beliefs. Id. at 481 n.1, 483. This burden requires Barrie to point to some evidence, direct
or circumstantial, that Barrie’s political beliefs motivated the RUF to carry out the attack
on the village. Id. at 483. At this stage of the proceedings, that evidence must compel us
to conclude that no reasonable factfinder could fail to find that Barrie was targeted
because of his political beliefs. Id. at 483-84.
In this case, the evidence presented at the hearing supports the IJ’s conclusion that
the rebels indiscriminately targeted the entire village. Barrie testified that the rebels came
to the village and held him captive along with other villagers for two days and one night.
The rebels threatened to burn down the entire village, and, according to Barrie, “[t]hey
sort of kicked us out of the city.” The rebels committed atrocities, but there is no
evidence compelling us to conclude that such atrocities were committed because Barrie –
8
or the village as a whole – supported the SLPP. Barrie testified that he did not hold any
leadership position in the organization, and the record does not compel us to conclude,
based upon the harm that befell the entire village, that Barrie himself was targeted for
persecution.
Our recent decision in Al-Fara v. Gonzales, 404 F.3d 733 (3d Cir. 2005), sheds
some light on our rationale. In Al-Fara, Israeli forces occupying the Gaza Strip forcibly
entered Al-Fara’s house during the midst of the 1967 war. Al-Fara was forced to flee
after he was shot at by Israeli soldiers for attacking one of the soldiers with a stick. He
fled initially to Jordan, then to various European and Middle Eastern nations, until he
finally arrived in the United States. From 1967 to 1976, Israeli soldiers occasionally
approached Al-Fara’s family members to inquire of his whereabouts, and Israeli forces
demolished his family’s home in 1976. Id. at 736. Although the IJ found Al Fara’s story
to be credible, he denied Al-Fara’s application for asylum because he concluded that Al-
Fara’s flight was prompted by general conditions of unrest during the 1967 war rather
than individualized persecution. We concluded that substantial evidence supported the
IJ’s conclusion that Al-Fara was not individually targeted for persecution. We explained
that it was important to consider that Al-Fara’s encounter occurred during a war in which
the entire population of the region was threatened with harm. Id. at 739. In addition, we
noted that “‘generally harsh conditions shared by many other persons[] do not amount to
persecution.’” Id. at 740 (quoting Fatin, 12 F.3d at 1240). Thus, we concluded that Al-
9
Fara “furnished no evidence, short of speculation, that these past incidents were
perpetrated on account of anything other than ongoing civil controversy.” Id.
Similarly, Barrie has not pointed to any evidence in this case, short of his own
speculation, that his village was targeted based on its political beliefs, or that he himself
was targeted based on his political beliefs. The record reveals that the entire village was
targeted by the rebels, and there is no evidence in the record regarding the political beliefs
held by the other villagers who were targeted.
Sierra Leone was a horrific place to live in June 1997 due to the burgeoning civil
war, and the record documents the numerous atrocities that occurred across the entire
nation throughout the conflict. The evidence in the record does not compel us to
conclude, however, that Barrie was targeted for individual persecution in the midst of the
indiscriminate bloodshed.
We also conclude that there is substantial evidence to uphold the IJ’s decision that
Barrie did not establish a well-founded fear of future persecution. Barrie’s stated fear of
future persecution is based solely on his belief that he will be killed by the rebels on
account of his political opinion if he returns to his village. That fear, however, is
objectively unreasonable for two reasons. First, we have concluded that there is
insufficient evidence that the original encounter occurred “on account of” his political
opinion. Second, conditions have improved in Sierra Leone in the intervening time
period since the civil war has ended, and there is no indication from the record that RUF
rebels have the present intent to harm Barrie upon his return. See Al-Fara, 404 F.3d at
10
741. As a result, we conclude that the IJ’s determination that Barrie was not persecuted
or subject to future persecution is supported by substantial evidence, and we will deny
Barrie’s petition for review on his asylum and withholding of removal claims.7
Finally, we also agree with the IJ that Barrie did not demonstrate that he would be
subject to torture if removed to Sierra Leone, as is necessary to support his claim under
the CAT. 8 C.F.R. §§ 208.16(c)(2), 208.18(a). In Tarrawally v. Ashcroft, 338 F.3d 180,
188 (3d Cir. 2005), a decision involving an immigrant from Sierra Leone asserting that he
would be tortured by the RUF if forced to return to his country, we explained that current
country conditions may be dispositive in determining relief under the CAT. We
concluded in that decision that Tarrawally’s CAT claim failed because the RUF was not
in power, and that he could not establish that any torture at the hands of the RUF would
be employed with the acquiescence of the current government. Id.
In this case, the State Department Country Report introduced at Barrie’s hearing
stated that the RUF has disarmed and demobilized, that the SLPP-led government has
asserted control over the entire country with the backing of an international peacekeeping
force, and that peaceful parliamentary elections have taken place. Based upon this
evidence in the record, we are not compelled to conclude that Barrie will be tortured upon
7
Our finding that Barrie was not subject to past persecution extinguishes his claim
that the IJ erred in failing to grant him a discretionary grant of asylum for humanitarian
reasons. See Al-Fara, 404 F.3d at 740.
11
his return to Sierra Leone, and we will deny Barrie’s petition for review on his CAT
claim.
IV.
For the reasons set forth above, Barrie’s application for asylum, withholding of
removal, and protection under the CAT was properly denied based upon his failure to
establish a reasonable threat of persecution or torture. Accordingly, we will deny his
petition for review.
12