Kaba v. Mukasey ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0399p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
LANCINE KABA,
-
-
-
No. 07-3862
v.
,
>
MICHAEL MUKASEY, Attorney General, -
Respondent. -
N
On Petition for Review from the
Board of Immigration Appeals.
No. A97 105 318.
Submitted: July 31, 2008
Decided and Filed: November 13, 2008
Before: DAUGHTREY and McKEAGUE, Circuit Judges; VAN TATENHOVE, District Judge.*
_________________
COUNSEL
ON BRIEF: David C. Koelsch, UNIVERSITY OF DETROIT MERCY, Detroit, Michigan, for
Petitioner. Patrick James Glen, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Lancine Kaba, seeks
review of the denial by an immigration judge and by the Board of Immigration Appeals (BIA) of
his requests for asylum, withholding of removal, and relief pursuant to the United Nations
Convention Against Torture, 1465 U.N.T.S. 85, 23 I.L.M. 1027, art. 3. Before this court, Kaba
contends that the immigration judge erred in finding him not credible, in concluding that he had not
suffered past persecution in his native Cote d’Ivoire (formerly known as the Ivory Coast), and in
refusing to recognize his well-founded fear of future persecution there. Because we conclude that
the evidence in the administrative record does not compel a conclusion contrary to that reached by
the immigration judge, we hold that the petitioner has failed to establish his eligibility for the relief
he seeks. We therefore affirm the administrative decision and deny the petition for review in this
matter.
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
1
No. 07-3862 Kaba v. Mukasey Page 2
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Kaba, a native and citizen of Cote d’Ivoire, entered the United States on July 7,
2000, on a valid F-1 student visa with the intent to pursue studies at Michigan Technological
University. When Kaba ceased attending college in December 2002, however, the Immigration and
Naturalization Service, now the Department of Homeland Security, determined that the petitioner
was subject to removal and ordered him to appear before an immigration judge to show cause why
he should not be removed from the United States. At that proceeding, Kaba conceded removability
but indicated his desire to apply for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture.
However, Kaba’s first application, filed with the administrative agency in 2003, did not list
any specific instances of past persecution or torture. Instead, he claimed merely that “[m]y family
is from the north of Ivory Coast and is Muslim and belongs to the Dioula ethnic group. As a result,
my family has been threatened by the government and forces loyal to the government.” The record
shows, however, that despite the fact that his ethnicity could be traced to northern Cote d’Ivoire,
Kaba and his family were actually residents of the country’s largest city, Abidjan, located on the
southern coast. It was there that Kaba was born, reared, and attended school from 1987-1999.
Kaba filed an amended application in 2004, in which he claimed without explanation that
he would be tortured should he return to Cote d’Ivoire and also asserted:
My family has been completely uprooted by the political, ethnic and religious
violence in Ivory Coast. My family was forced to flee their home in Abidjan and I
have not heard from them for many months. I believe that they are in a rebel-
controlled area of the country but I do not know where or in what conditions they are
living.
This contention appears to have been based on the failed coup in Cote d’Ivoire in September 2002
that effectively split the country in two, with pro-government forces holding the southern half of the
country – where Kaba’s family lived – and rebel forces holding the northern section. According to
the State Department 2005 country report, which was introduced into the administrative record, a
period of political instability took root as a result of turmoil caused by the uprising, which led to
various kinds of human rights abuses in both parts of the country, including (but not limited to)
“arbitrary and unlawful killings by security forces, progoverment militias, and student groups”;
torture and inhumane punishment by those same groups; illegal arrests and lack of public trial;
“deplorable prison and detention center conditions”; police harassment of non-citizen Africans;
restrictions on speech and assembly; trafficking and forced labor; and violence against women.
Conditions in the north were reported to be worse than those in the south.
But nowhere in the long list of human rights abuses is there any indication that
discrimination on the basis of religion was widespread. The 2005 country report suggests that
immediately after the 2002 rebellion, the government “targeted persons perceived to be perpetrators
or supporters of the rebellion, who often were Muslim” but notes that “[s]trong efforts by religious
and civil society groups have helped prevent the crisis from becoming a religious conflict” and that
the “targeting of Muslims suspected of rebel ties diminished somewhat during [2002].” The only
form of outright discrimination reflected in the report concerned “northern Muslims” who “shared
names, style of dress, and customs with several of [Cote d’Ivoire’s] predominantly Muslim
neighboring countries” and who were sometimes “accused wrongly of attempting to obtain
nationality cards to vote or otherwise take advantage of citizenship,” thereby “creat[ing] a hardship
for a disproportionate number of Muslim citizens.” Again, there is no indication that Ivorian
Muslims were persecuted because of their religion rather than because of political activity, or that
they suffered religious persecution rather than “hardship” of the kind described in the country report.
No. 07-3862 Kaba v. Mukasey Page 3
Eventually, a hearing was held before an immigration judge, at which both the petitioner and
his brother, Ousseinou Kaba, testified. Petitioner Lancine Kaba testified that he was then 25 years
of age and was one of six children born to an Ivorian mother and to a father who was himself born
in neighboring Guinea. He further explained that his family was Muslim and from the Dioula ethnic
group, thus purportedly inviting derision and harassment from what he described as the
overwhelmingly Christian and anti-Muslim population in the southern part of the country where the
Kabas resided.
The petitioner further testified that his father held a computer engineering consulting position
with the African Development Bank in the capital city of Abidjan. Still, according to Kaba, his
family was subjected to numerous indignities because they were Muslim, Dioula, and descended
from a non-Ivorian father. For example, the petitioner claimed that his oldest sister was routinely
ridiculed by others for wearing a head-scarf indicative of her adherence to Islam. He explained that
he himself had his government identification card confiscated in 1999 because of his Muslim-
sounding name, although he was later issued a new, permanent identification document. Likewise,
the petitioner said, he was initially thwarted in his attempts to obtain a passport because his father
was not a native Ivorian. Eventually, however, that document too was issued to the petitioner.
Finally, Kaba recounted difficulties he experienced in attempting to retrieve from the Abidjan post
office certain documents sent to him in connection with his application to Michigan Tech.
According to the petitioner’s testimony, such difficulties arose simply because of the postal clerk’s
recognition of the Muslim origin of his name and her resulting demand that he produce national
identification that he did not possess. That matter was resolved only after Kaba’s father agreed to
pay the clerk to release the petitioner’s mail.
Significantly, the petitioner referred to this collection of problems as “harassments.” In his
own words, he admitted:
But it wasn’t to a point where it was persecution yet. It was something I could deal
with, you know, I was leaving the country for school, so it wasn’t for, to me
something really big. Plus, it wasn’t every, everywhere, so I didn’t, didn’t feel the
need to. Plus I was coming to school here.
Kaba also testified about a 1999 confiscation by the police of his father’s automobile,
allegedly because his father was not a native Ivorian. Again, however, no lasting harm resulted from
that interaction with government representatives given the fact that the vehicle was returned to its
owner less than one week later in exactly the same condition in which it had been when taken.
Finally, the petitioner recounted what he had learned about an incident that occurred on July
22, 2005, in Abidjan in which his brother Ousseinou was purportedly detained by government police
simply because his identification card revealed his Muslim name. According to consistent testimony
offered by both the petitioner and his brother, the police jailed Ousseinou overnight, placed him in
a cell with other young Muslim men, and beat and kicked him. Ousseinou also claimed that the
beating resulted in him suffering two cracked teeth and sustaining a wound over his eye. Moreover,
Ousseinou testified that when he was released from custody the following morning, he saw his father
at the police station and noticed that the father had also been incarcerated and beaten by the police
after arriving at the police station to free his son. Ousseinou Kaba also mentioned in his testimony
that he had been detained by police on two occasions prior to the July 22, 2005, incident. In both
of the prior “arrests,” however, the authorities merely checked Ousseinou’s identification documents
and then released him unharmed after approximately 30 minutes.
After the petitioner rested his case before the immigration judge, the government recalled
the petitioner to the stand. During the questioning that followed, the attorney highlighted
Ousseinou’s testimony that the petitioner had maintained consistent e-mail contact with his family
No. 07-3862 Kaba v. Mukasey Page 4
and that the family had remained in Abidjan despite some harassment by non-Muslims. In light of
that testimony, the petitioner was asked to explain his assertion in the amended asylum application
that his “family was forced to flee their home in Abidjan” and that he had “not heard from them for
many months.” In attempting to do so, the petitioner engaged in the following exchange with the
government lawyer:
A. Well, what happened is that when the situation went back in there, I stopped
having contact from my dad. There was a time when there was a hurricane,
somewhere in Miami or whatever, in Florida, and at the African Development Bank,
all the (indiscernible) system and everything is outside of the country. It’s
(indiscernible). So, I wasn’t in touch with my dad or anybody for awhile, for at least
a month or two months. It was around that period.
Q [from the immigration judge]. For how many months?
A. A month or two. So, at that time, I didn’t have any contact with anybody, the
phone lines were down because they are always down once there is a rebel attack or
anything. So, I wasn’t in touch with them for awhile, and I honestly thought that
they left the country or they run [sic] away.
Q [from the government lawyer]. And what time was this? What time period?
What month?
A. Well, I really don’t remember. I really don’t remember.
Q. You stated that you believed that they were living in a rebel-controlled area of
the country. Why would you have that belief, sir?
A. Because, initially, I would have thought that would be the first place they will
head if they had to leave Abidjan. There is no other way to go. If we are pushed by
Christian [sic], we will have to go to the rebel north.
Q. Okay, so you have no information –
A. I had no information. I assumed they were on their way.
Q. -- that they had actually fled –
A. Yeah.
Q. -- Abidjan?
A. I didn’t have any, I just couldn’t get in touch with them.
At the conclusion of the petitioner’s testimony and the closing arguments of counsel, the
immigration judge delivered her oral decision in the matter. That decision summarized the
testimony and documentary evidence introduced before the court, discussed the relevant case law,
statutes, and regulations, and ultimately concluded that Kaba was not entitled to the relief he sought.
Specifically, the immigration judge noted her “concerns regarding [Kaba’s] credibility, particularly
as it relates to omissions in his written application when compared to his and his brother’s
testimony.” She then highlighted the general and vague nature of the petitioner’s complaints and
the failure of the applications to make reference to “any specific incidents of mistreatment or
harassment that he or his family incurred.” The immigration judge next pointed to the fact that
Ousseinou Kaba had testified that he had been arrested three times by the police even though
No. 07-3862 Kaba v. Mukasey Page 5
Lancine Kaba mentioned only one such arrest in his own testimony and used that fact, as well as
the fact that Ousseinou did not mention an injury to the bridge of his nose when describing the
beating he received in jail, to find the brother’s testimony incredible. Discussing the petitioner’s
mistaken assumption that his family had fled their Abidjan home, the immigration judge also found
Lancine Kaba not credible and unable to “sustain his burdens of proof and persuasion necessary to
establish eligibility for asylum, withholding of removal under the Act, or withholding under the
Torture Convention.”
Alternatively, the immigration judge determined that, even if the petitioner were found to
be credible, no relief was justified because Lancine Kaba suffered only “a few isolated incidents of
harassment” and not past persecution in Cote d’Ivoire. Furthermore, the court found that the
administrative record did “not clearly establish a nexus on which this Court could find that any of
the harm that [Kaba] underwent, or his family underwent, was due to a protected ground.” Finally,
because the immigration judge considered the petitioner’s family to be part of what the country
report described as Cote d’Ivoire’s “Islamic urban elite,” because the report also indicated increased
interfaith understanding in the country, and because any potential harm to the petitioner could be
attributed to general violence in the country rather than to specific government oppression, she ruled
that the petitioner could not establish a well-founded fear of future persecution or torture should he
be removed to his native land.
The BIA summarily dismissed Kaba’s appeal, agreeing with the immigration judge that the
petitioner failed to establish through credible testimony that he had suffered past persecution in his
homeland. Alternatively, the BIA noted that, “even if [Kaba’s] testimony were to be found generally
credible, he did not establish eligibility for relief.”
DISCUSSION
Standard of Review
When, as in this case, the BIA summarily affirms a portion of the decision of an immigration
judge without an in-depth discussion of the relevant issues, “we review the [immigration judge’s]
decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003). That
administrative ruling must be sustained if the determination is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). “Under this deferential standard, we may not reverse the Board’s or the immigration
judge’s determination simply because we would have decided the matter differently.” Koliada v.
INS, 259 F.3d 482, 486 (6th Cir. 2001) (citing Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.
1998)). Rather, to overturn such a factual determination, “we must find that the evidence not only
supports [a contrary] conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n.1.
Request for Asylum
Before the immigration judge and the BIA, Kaba requested that he be granted asylum in the
United States. As we have explained, “[R]esolution of any request for asylum involves ‘a two-step
inquiry: first, whether the petitioner is a “refugee” within the meaning of the [Immigration and
Nationality Act], and second, whether the petitioner merits a favorable exercise of discretion by the
Attorney General.’” Chen v. Gonzales, 447 F.3d 468, 472 (6th Cir. 2006) (quoting Perkovic v. INS,
33 F.3d 615, 620 (6th Cir. 1994)). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987);
8 U.S.C. § 1158(b)(1).
Section 1101(a)(42)(A) of title 8 of the United States Code defines the term “refugee” to
mean:
No. 07-3862 Kaba v. Mukasey Page 6
[A]ny person who is outside any country of such person’s nationality or, in the case
of a person having no 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 particular social group, or political opinion.
“An applicant who has been found to have established . . . past persecution shall also be presumed
to have a well-founded fear of persecution on the basis of the original claim,” 8 C.F.R.
§ 208.13(b)(1), unless the immigration judge finds, by a preponderance of the evidence, either that:
(A) There 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; or
(B) The applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality . . . and under all the circumstances, it would be
reasonable to expect the applicant to do so.
8 C.F.R. § 208.13(b)(1)(i).
Kaba is unable in this case to invoke the presumption of a well-founded fear of future
persecution that arises, pursuant to 8 C.F.R. § 208.13(b)(1), from the establishment of past
persecution. Even though applicable statutes do not define the term “persecution,” we have
determined that “‘persecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more than
a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch, 146 F.3d at
390. Here, Kaba conceded in his own testimony before the immigration judge that he did not
personally suffer any “persecution” during his time in Cote d’Ivoire. He was not arrested, beaten,
or otherwise physically mistreated prior to coming to the United States in 2000. Rather, any
inconveniences he was made to suffer, allegedly as a result of his Muslim name or his father’s
foreign heritage, were termed mere “harassments,” not acts of persecution. Consequently, in order
to establish his refugee status for purposes of obtaining a discretionary grant of asylum, Kaba must
show that he now possesses a well-founded fear of future persecution should he return to the country
of his birth.
In analyzing whether Kaba possessed a well-founded fear of future persecution in Cote
d’Ivoire, the immigration judge first discounted such an apprehension based upon her conclusion
that the petitioner’s testimony and other testimony offered on his behalf was not credible. In part,
those credibility determinations were premised upon the facts that: (a) Kaba did not list specific
instances of alleged persecution in his asylum application and amended asylum application; (b) the
petitioner’s brother testified that he (Ousseinou) had been detained by Ivorian police three times,
yet mentioned to Lancine only the one July 2005 arrest during which Ousseinou was kicked and
beaten; (c) Ousseinou testified about an injury to the bridge of his nose suffered during that beating
only upon direct questioning from the immigration judge; and (d) the petitioner’s application falsely
stated that his family had been uprooted by anti-Muslim militia and forced into hiding in the
anarchic northern portions of the country.
An immigration judge’s credibility determination is considered a finding of fact and is thus
reviewed under the deferential substantial-evidence standard. See Sylla v. INS, 388 F.3d 924, 925
(6th Cir. 2004). Even so, the immigration judge’s conclusion must be supported by specific reasons
and must be based upon issues “that go to the heart of the applicant’s claim.” Id. at 926. In other
No. 07-3862 Kaba v. Mukasey Page 7
words, “[i]f discrepancies cannot be viewed as attempts by the applicant to enhance his claims of
persecution, they have no bearing on credibility.” Id. (citations and internal quotation marks
omitted).1
In this matter, the immigration judge’s reliance upon perceived defects in Ousseinou Kaba’s
testimony to conclude that Lancine Kaba was not a credible witness is unpersuasive. Ousseinou’s
failure to inform his brother that he had twice been detained for 30 minutes or less while authorities
examined his identification documents, and Ousseinou’s failure to list a cut to his nose that resulted
from a beating that also produced two cracked teeth and a gash above his eye only arguably suggests
an “attempt[ ] by the applicant to enhance his claims of persecution.” In our opinion, the
immigration judge attached undue significance to those two “discrepancies” in her credibility
determination.
In arriving at her decision concerning the petitioner’s credibility, the immigration judge also
focused upon the vague allegations of persecution in Kaba’s applications and upon his bold
assertions about supposed conditions in Cote d’Ivoire. In a split decision in Liti v. Gonzales, 411
F.3d 631, 638 (6th Cir. 2005), we concurred in the Second Circuit’s recognition in Secaida-Rosales
v. INS, 331 F.3d 297, 308 (2d Cir. 2003), abrogated, in part, by statute as recognized in Lin v
Mukasey, 534 F.3d 162, 164-64 (2d Cir. 2008), that “the circumstances surrounding the application
process do not often lend themselves to a perfectly complete and comprehensive recitation of an
applicant’s claim to asylum or withholding, and . . . holding applicants to such a standard is not only
unrealistic but also unfair.” The Liti majority then explained:
The purpose of holding a removal hearing is not simply to reiterate the statements
made in the asylum application, but rather to allow an alien “to present evidence on
the alien’s own behalf” including to elaborate on the generalized claims made in the
application itself. 8 U.S.C. § 1229a(b)(4)(B). Therefore, because the statements in
the application were not inconsistent with the [petitioner’s] subsequent testimony of
the specific events at [his] removal hearing, we conclude the BIA’s adverse
credibility finding is unsupported by the evidence, and therefore we are compelled
to conclude to the contrary.
Liti, 411 F.3d at 639 (emphasis added).
Thus, the mere failure of a petitioner to include every detail of an asylum claim in the
application itself should not be considered fatal to a petitioner’s request for relief.2 On the other
hand, an application should contain at least some indication of the type of assertions that will be
made in support of a claim. Kaba’s complete lack of specificity in both his original and amended
applications justifies the immigration judge’s skepticism about the validity of those claims in this
matter.
1
The REAL ID Act, Pub. L. No. 109-13, 119 Stat. 302 (2005), now permits an immigration judge to base an
adverse credibility finding on inconsistencies, inaccuracies, or falsehoods “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). That provision,
however, applies only to applications for asylum, withholding, or other relief made on or after May 11, 2005, the
effective date of the enactment. Although the handwritten date on Kaba’s initial asylum application is illegible, that
document bears two different date stamps from 2003, well before the effective date of the REAL ID Act.
2
In considering applications filed after May 11, 2005, “a trier of fact may base a credibility determination on
the . . . consistency between the applicant’s . . . written and oral statements.” 8 U.S.C. §1158(b)(1)(B)(iii). Even so,
such a determination must take into account “the circumstances under which the statements were made.” Id. Thus, as
long as statements in an application are not inconsistent with oral testimony, mere lack of specificity in an application,
compared with more detailed testimony at an evidentiary hearing, will not provide support for a finding that a petitioner
is not credible.
No. 07-3862 Kaba v. Mukasey Page 8
Moreover, one bold, otherwise unqualified statement of the petitioner in his amended
application inevitably calls Kaba’s credibility into question. This overstatement concerns the
petitioner’s baseless assertion that the Kaba family had been “completely uprooted by the political,
ethnic and religious violence in Ivory Coast” and “forced to flee their home in Abidjan,” from which
he purportedly concluded that “they are in a rebel-controlled area of the country” and that their exact
whereabouts and living conditions were completely unknown to him. Given his later testimony at
the hearing that this allegation was based on nothing more than a temporary interruption in his e-
mail contact with his family, the exact timing of which he was unsure, the immigration judge could
reasonably assume that the statement was reckless, if not a deliberate falsehood. Testimony from
Kaba’s brother indeed indicated that the family was never driven from their home and that the
petitioner’s relatives remained in Abidjan throughout the duration of their son’s sojourn in the
United States. Because the treatment of the family was, moreover, a critical component of Kaba’s
claim of persecution, the blatant overstatement of the dangers faced by his relatives could be
considered indicative of the petitioner’s untruthfulness regarding additional matters of import during
the hearing.
Even if the immigration judge had found Kaba to be a credible witness, however, the
evidence in the record does not compel a conclusion that the petitioner did indeed possess a well-
found fear of future persecution in Cote d’Ivoire. According to the record, Kaba does not consider
himself to have been persecuted during his time in his native land. Although he did experience
problems that he presumed would not have occurred had he not been Muslim, the petitioner candidly
referred to such encounters as instances of harassment, not persecution. It follows that the
immigration judge was not incorrect in concluding that Kaba had not demonstrated that he was
likely to face persecution upon return to Cote d’Ivoire. Consequently, the evidence does not compel
the opposite result, as required for this court to reverse the administrative decision on Kaba’s
petition for asylum.
Kaba also petitioned this court for review of the administrative denial of his request for
withholding of removal. Before this court, however, the government, citing our prior decision in
Gilaj v. Gonzalez, 408 F.3d 275, 289 (6th Cir. 2005), argues that we have no jurisdiction over this
claim because the petitioner “presented no argument before the Board with respect to” this issue and
thus failed to exhaust his administrative remedies. Despite seeking to rely upon the legal principles
espoused in Gilaj, the Attorney General has nevertheless failed to read that case carefully. In Gilaj,
we stated:
Petitioners argued before the BIA that the [immigration judge] had erred in finding
that the incidents described by the petitioners did not constitute persecution. Their
argument is pertinent to both the claim for asylum and the claim for withholding of
removal. Accordingly, we find that petitioners properly presented the issue of
withholding of removal to the BIA for its determination. In addition, petitioners
presented the issue to this court by arguing in their appellate brief that the
[immigration judge] and the BIA had abused their discretion by denying both the
claim for asylum and the claim for withholding of removal. Accordingly, petitioners
have not waived their claim for withholding of removal, and we have jurisdiction to
hear the claim.
Id.Similarly, in this matter, Kaba argued – somewhat inartfully – before the BIA that he had
been subjected to past persecution in Cote d’Ivoire and, consequently, was entitled to both asylum
and withholding of removal. Indeed, the petitioner specifically claimed:
No. 07-3862 Kaba v. Mukasey Page 9
Mr. Kaba has thus shown that he will, more likely than not, be persecuted if returned
to the Ivory Coast and is therefore entitled to withholding of removal. He has also
shown that he will more likely that [sic] not, be tortured if returned to the Ivory
Coast and is therefore entitled to CAT relief. Mr. Kaba also would not be able to
reasonably relocate to another part of the country to avoid persecution. A fortiori,
he has met the lower standard of asylum by showing that his fear of persecution is
reasonable.
The claim for withholding of removal was thus properly exhausted and this court has jurisdiction
over this allegation of error.
In order to qualify for withholding of removal, the petitioner “must establish that there is a
clear probability that he will be subject to persecution if forced to return to the country of removal.”
Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). To make such a showing, a petitioner “must
demonstrate that ‘it is more likely than not’ that he or she will be persecuted upon return.” Liti, 411
F.3d at 641 (quoting 8 C.F.R. § 1208.16(b)(2)). Because this burden is “a more stringent burden
than what is required on a claim for asylum,” id. at 640 (quoting Pilica, 388 F.3d at 951), it follows
from Kaba’s failure to establish eligibility for asylum that he also cannot satisfy the more onerous
burden for withholding of removal. See, e.g., Koliada, 259 F.3d at 489.
The petitioner additionally requested relief under the provisions of the United Nations
Convention Against Torture. To obtain withholding of removal under that convention, “[t]he burden
of proof is on the applicant . . . to establish that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). This burden is
also significantly greater than the burden required to demonstrate eligibility for asylum. Whereas
asylum may be granted by the attorney general upon a showing of a “well-founded fear of
persecution,” withholding of removal under the Convention Against Torture requires a showing that
it is more likely than not that Kaba would not only be persecuted upon his return to Cote d’Ivoire,
but that he would be tortured. Because the petitioner cannot demonstrate entitlement to a grant of
asylum, he also cannot meet the more stringent requirements of the Convention Against Torture.
See, e.g., Liti, 411 F.3d at 641. Substantial evidence thus supports the immigration judge’s denial
of this extraordinary relief.
CONCLUSION
For the reasons set out above, we DENY the petition for review.