Paul v. Ashcroft , 109 F. App'x 695 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-60813
Summary Calendar
PAPA PAUL,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 78 125 381
--------------------
Before EMILIO M. GARZA, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Papa Paul, a 14 year old Liberian citizen, petitions this
court for review of the Board of Immigration Appeals’ (BIA)
decision affirming the Immigration Judge’s (IJ) order denying his
application for asylum and withholding of removal and protection
under the Convention Against Torture (CAT).
When considering a petition for review, this court has the
authority to review only the BIA’s decision, not the IJ’s
decision, unless the IJ’s decision has some impact on the BIA’s
decision. Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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This court may review the IJ’s findings and conclusions if the
BIA adopts them. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir.
2002). The BIA stated that it agreed with the IJ’s decision that
Paul had not met his burden of proof. We conclude that the BIA
adopted the IJ’s decision, allowing this court to review the IJ’s
decision.
Paul argues that the IJ violated his rights to due process
by not permitting the use of a Liberian interpreter. Because
Paul failed to exhaust his remedies before the BIA, this court
lacks jurisdiction to consider this issue. Wang v. Ashcroft, 260
F.3d 448, 452-53 (5th Cir. 2001).
Paul argues that the IJ utilized an improper burden of
proof. A fair reading of the IJ’s decision shows that he applied
the correct burden of proof. The IJ cited the correct precedent,
Matter of Mogharrabi, 19 I. & N. Dec. 439, 441-45 (BIA 1987)
(applying this court’s “reasonable person” standard in I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).
He also argues that the BIA’s reliance on apparent changed
country conditions in Liberia violated its own rules, resulting
in a denial of due process. Paul was not deprived of due process
by the BIA’s action in noticing the changed country conditions in
Liberia because he can challenge it by motion to reopen.
Rivera-Cruz v. INS, 948 F.2d 962, 966-67 (5th Cir. 1991).
Paul argues that the IJ erred in ruling that he had failed
to establish that he was subjected to persecution on account of
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one of the five protected grounds, particularly either political
opinion or membership in a particular social group. He contends
that his actions in fleeing conscription by Charles Taylor's
governmental forces was “an expression of neutrality, which
constitutes an expression of political opinion." Paul further
argues that he affirmatively expressed his neutrality in an
environment fraught with hazards from the Liberian government or
from uncontrolled anti-government forces. As such, he states he
demonstrated "hazardous neutrality" as political opinion. He
states that he "affirmatively expressed his neutrality when he
spoke with the Liberian Embassy and informed them that he had
fled the country because he did not wish to fight in the war."
Paul cites no instances in which this court has adopted the
doctrine of hazardous neutrality. See Matter of Maldonado-Cruz,
19 I. & N. Dec. 509, 516 (BIA 1988) (“We know of no Fifth Circuit
case which agrees with the rationale of Bolanos-Hernandez.”).**
There is no reason to adopt it in this case because it is not
supported by the facts. The IJ correctly concluded that Paul had
not been targeted for recruitment on account of political opinion
or membership in a social group. Absent evidence that the ATU's
conscription effort was motivated by Paul’s political opinion,
actual or imputed, rather than a need for members, the ATU
military organization's attempt to force Paul to join them is
**
Bolanos-Hernandez is the case in which the Ninth Circuit
first adopted the doctrine of political neutrality as political
opinion. 767 F.2d 1277, 1286-88 (9th Cir. 1985).
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insufficient to compel a finding of persecution on account of
political belief. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482-84
(1992).
Paul argues that he affirmatively expressed his neutrality
to the government of Liberia when he spoke with the Liberian
Embassy and informed it that "he had fled the country because he
did not wish to fight in the war." There is no factual
foundation for his argument that he affirmatively expressed
either a political opinion or hazardous neutrality. The evidence
relied upon by Paul is insufficient to compel reversal of the
IJ’s conclusion that he failed to establish a well-founded fear
of persecution on account of an expression of his political
opinion.
Paul next argues that the IJ erred in failing to consider
whether he would face disproportionate punishment if he were
forced to return to Liberia. He contends that he will be
disproportionately punished if forced to return to Liberia
because of his membership in the social group consisting of those
persons who escaped Liberia and have been reported to the
Liberian government as denouncing it. Again, the record does not
show that Paul expressed any denunciation of the Liberian
government.
Paul argues that "disproportionate punishment results" when
a person will be forced to participate in a conflict that has
been internationally condemned. The reports and documents cited
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by Paul describe general violence and conditions of unrest due to
the long civil war, which do not provide grounds for asylum. See
Campos-Guardado v. INS, 809 F.2d 285, 290 (5th Cir. 1987)
(“Congress did not intend to confer eligibility for asylum on all
persons who suffer harm from civil disturbances . . . .”).
Paul argues that he would be forced to commit atrocities if
he were sent back to Liberia, his participation in the conflict
would be inhumane, and forcing him to participate would become
persecution. “[W]hen an alien does not wish to be associated
with a military that engages in universally condemned acts of
violence, ‘the only relevant factor is the likelihood that the
alien will be punished.’” Mojsilovic v. INS, 156 F.3d 743, 747
(7th Cir. 1998). The IJ found that the evidence did not support
the theory that the government of Liberia would punish or harm
Paul as a refugee who fled to avoid military conscription. Paul
does not point to any evidence in the record bearing on the
likelihood that he would be punished which would compel a
different conclusion from that reached by the IJ. The evidence
does not compel a reasonable fact-finder to conclude that Paul
has a well-founded fear of future persecution because of a
protected ground. Elias-Zacarias, 502 U.S. at 482-84.
Paul argues that if this Court does not conclude that he
established his entitlement to asylum, then he has proved
entitlement to withholding of removal under the Torture
Convention. He contends that if he was returned to Liberia, he
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would be picked up by the Government, imprisoned, and likely
killed. Paul does not point to any evidence in the record that
would compel the conclusion that it is more likely than not that
he would be tortured by the current government of Liberia. For
the same reasons discussed above in connection with his claim for
asylum, that Paul does not point to any evidence in the record
bearing on the likelihood that he would be punished at all,
substantial evidence also supports the IJ’s rejection of Paul’s
application for CAT relief. Efe v. Ashcroft, 293 F.3d 899, 907
(5th Cir. 2002).
Because Paul has not briefed a claim for withholding of
removal, such claim is deemed abandoned. Calderon-Ontiveros v.
INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
The petition for review is DENIED.