Youssouf Sam v. Eric H. Holder, Jr. , 339 F. App'x 527 ( 2009 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 09a0512n.06
No. 08-4588 FILED
Jul 24, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
SILEYE YOUSSOUF SAM ,
Petitioner
On Appeal from the Board of
Immigration Appeals
v.
ERIC H. HOLDER, United States Attorney General
Respondent
______________________________/
BEFORE: KENNEDY, BATCHELDER, and McKEAGUE, Circuit Judges.
KENNEDY, Circuit Judge. Petitioner Sileye Youssof Sam, a native and citizen of the
Republic of Congo, appeals a final removal order issued by the Board of Immigration Appeals (BIA).
The BIA’s order was issued on October 30, 2008 and affirmed the decision of the Immigration Judge
(IJ) denying Sam’s applications for asylum, withholding of removal, and protection under the
Convention Against Torture. JA 105-06. The IJ had denied Sam’s claims on March 12, 2007,
holding that, although Sam was credible, his failure to provide adequate corroboration for his claims
prevented him from meeting his burden of proving past persecution or a well-founded fear of future
persecution. In the alternative, the IJ held that based on the totality of the circumstances, Sam had
firmly resettled in Senegal following his departure from Congo. We need not reach the issue of firm
resettlement, however, because the record supports the IJ’s finding that Sam failed to prove both past
persecution or a well-founded fear of future persecution. Sam not only failed to provide reasonably
available evidence to corroborate his own account of his past persecution but also failed to provide
record evidence in support of his claim that his fear of future persecution was well-founded.
Accordingly, we find that the IJ’s denial of Sam’s asylum claim was supported by substantial
evidence and DENY the petition for review.
BACKGROUND
Sam’s claims for asylum, withholding of removal, and CAT protection focus on his fear of
being persecuted on account of his political opinion if forced to return to his home country, the
Republic of Congo. Sam testified to the facts relevant to this asylum claim during his hearing before
the IJ. Sam testified that, prior to his departure, he had worked as a high school teacher in
Brazzaville, Congo, from 1994-96.
Sam’s testimony described the political situation in Congo during that time. Congo’s 1992
presidential election was won by Pascal Lissouba, who represented “a political party made up from
mostly minority ethnic groups.” JA 30. With that victory, Lissouba defeated the incumbent Denis
Sassou Nguesso, the candidate of the Congolese Worker’s Party. In 1993, Lissouba’s party also
won control of Parliament. Following these elections, the Congolese Worker’s Party refused to
allow Lissouba’s party to take office and resorted to violence. (“[A]fter the elections they took up
arms.”). While Sam was not an official member of any political party and did not explicitly support
Lissouba, in his private beliefs he was a “sympathizer for Lissouba.” Although the director at his
school directed the teachers not to “speak to...the students about the country situation,” Sam testified
that “when the students came to class, they would ask you about their, about problems and you
cannot not answer their questions.”
In the fall of 1996, the headmaster of the school at which he taught “denounced” him and
other teachers for their support of prime minister Bernard Kolelas, who was also a member of the
minority party. On October 26, 1996, several soldiers arrested Sam and his brother at their home
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and brought them to a school where they were detained along with about thirty others. The soldiers
told him, “you are under arrest because you are a supporter of the prime minister.” During the nine
days they were detained there, Sam and his brother were beaten with belts and batons daily,
“sometimes several times a day.” Sam suffered a permanent scar on his arm from where a soldier
burned him intentionally with a cigarette. When he asked why he was detained, the soldiers stated
that “the teachers were giving (sic) some subversive ideas and giving them to schools.”
After nine days, when the soldiers guarding the school were forced to leave to address the
increasing fighting occurring in the area, Sam and the other detainees fled to Congo’s border with
Gabon. At the border, a truck provided several of the detainees a ride to a refugee camp in Kikoni,
Gabon. Sam and his brother remained there for three to four weeks. After that time, Sam and his
brother traveled to Senegal to seek medical treatment for his brother, who had been traumatized by
his time in the refugee camp. Sam’s brother received treatment for “shock trauma,” and they
remained in Senegal for almost seven years. Although they obtained lodging and employment in
Senegal through Abraham Lee, a “good friend,” they never applied for a refugee card nor did they
obtain authorization to work legally in Senegal. Abraham Lee helped Sam obtain a false Senegalese
passport and United States visa for $4,000, and Sam traveled to the United States on November
2003.
Sam filed an affirmative application for asylum on July 21, 2004. He was issued a Notice
to Appear on that same day, charging him with removability under section 237(a)(1)(A) of the
Immigration and Nationality Act (INA). For reasons explained herein, the IJ denied Sam’s
application on March 12, 2007. In a per curiam opinion, the BIA summarily affirmed the decision
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of the IJ. The BIA noted that, because Sam had failed to meet his burden of proof, it was not
necessary to reach the issue of firm resettlement. Sam timely appealed to our court.
ANALYSIS
I. Standard of Review and Applicable Law
When the BIA summarily affirms of the decision of an immigration judge, “we review the
[immigration judge] decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th
Cir. 2003). In determining whether an applicant has failed to establish eligibility for asylum, we
assess whether the administrative determination below is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Klawitter v, INS, 970 F.2d 149, 151-2 (6th
Cir. 1992). The Court will reverse only if the applicant can prove that the evidence compels a
contrary conclusion. Almuhtaseb v. Gonzales, 453. F.3d 743, 749 (6th Cir. 2006); INA §
242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B).
In order to be granted asylum, an applicant must prove that he is a “refugee.” See 8 C.F.R.
1208.13(a). The INA defines a “refugee” as a person unable to return to his or her 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.” 8 U.S.C. § 1101(a)(42)(A). The
determination of whether an individual is eligible for asylum involves two steps. First, the applicant
must prove she is statutorily eligible by establishing a “well-founded fear of persecution.” An
applicant can demonstrate a well-founded fear of persecution by both subjective and objective
evidence. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). If the applicant establishes that
he suffered past persecution in his home country, he is presumed to have a well-founded fear of
persecution. 8 C.F.R. § 1208.13(b)(1). Second, the applicant must show that the IJ should exercise
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his discretion to grant asylum. See Klawitter v. INS, 970 F.2d 149, 151 (6th Cir. 1992)(quoting
Rodriquez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir.1988)).
II. Asylum Claim
Corroborating evidence is not necessarily required to establish an applicant’s eligibility for
asylum. In determining whether an asylum applicant has met his or her burden to prove a well-
founded fear of persecution,
“[t]he testimony of the applicant may be sufficient to sustain the applicant's burden
without corroboration, but only if the applicant satisfies the trier of fact that the
applicant's testimony is credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the applicant is a refugee.... Where the trier of fact determines
that the applicant should provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.”
Lin v. Holder, 2009 WL 1323443 at *6 (6th Cir. May 14, 2009)(quoting 8 U.S.C. 1158(b)(1)(B)(ii));
Perkovic v. I.N.S., 33 F.3d 615, 621 (6th Cir. 1994)( holding that an applicant’s own testimony may
be sufficient in itself to establish asylum eligibility if it is “believable, consistent, and sufficiently
detailed to provide a plausible and coherent account of the basis for his fear.”). Even in cases where,
as here, the IJ finds the applicant to be credible,“where it is reasonable to expect corroborating
evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence
should be provided.... The absence of such corroborating evidence can lead to a finding that an
applicant has failed to meet [his or] her burden of proof.” Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir.2004)(citation omitted).
While an applicant’s own testimony, in some cases, may be sufficient to sustain his or her
burden of proof, we agree with the IJ’s determination that, in this case, corroborating evidence was
reasonably available to Sam. The IJ pointed to several individuals from whom it would be
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reasonable to expect corroboration. The IJ found relevant that Sam provided no affidavit or letter
from his brother, who Sam testified was living in Paris, France at the time of the hearing. This was
especially relevant in light of the fact that Sam’s brother had experienced first-hand the persecutory
incident alleged by Sam and had fled the country with Sam. In addition, the IJ pointed to the lack
of an affidavit or letter from Abraham Lee, Sam’s “good friend” who had provided him assistance
in traveling to Senegal and in obtaining a fraudulent Senegalese passport. Finally, the IJ noted that
Sam should have attempted to obtain a letter or affidavit from his former roommate, a Senegalese
friend living in Cleveland, to whom Sam may have spoken about his experiences in Congo.
In light of his testimony and the documentary evidence available in the record, the IJ’s
determination that Sam did not meet his burden to provide “reasonably available” corroboration was
supported by substantial evidence. Based on existing precedent in our Circuit, we are not compelled
to conclude otherwise. In Dorosh, the asylum applicant explained her failure to obtain a letter from
her mother in Ukraine by testifying that “her letters did not reach her mother, her mother had no
telephone and had to go to the post office to call her, and any attempts to talk about petitioner’s
asylum case or obtain affidavits from others would have jeopardized her mother’s safety.” 398 F.3d
at 383. Our court found this explanation inadequate, stating that “[w]hile contact may not have been
convenient, regular, or private, it was sufficient to have allowed Petitioner to obtain a previous letter
from her mother in which her mother documented her own mistreatment. Petitioner could have
requested a letter in a manner that minimized any risk of sensitive statements being overheard.” Id.
Though cases of this type are certainly fact-sensitive, it appears that the explanation presented by
petitioner in the present case clearly falls short in light of the explanations for lack of corroboration
which were found inadequate in Dorosh. See id.
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Furthermore, the IJ properly found that Sam failed to provide a reasonable explanation for
the absence of this corroboration. Sam’s explanation for the absence of corroborating evidence from
his brother was that, because his brother lacked any “identification papers,” Sam could not prove that
the two were in fact related. When asked why he failed to obtain an affidavit from Abraham Lee,
he stated that he did not ask Lee for a letter because he “didn’t think that it would have weight.”
Similarly, when questioned as to why he did not ask his former roommate to testify on his behalf,
he stated “I didn’t believe that that was going to have any heavy weight on the case.” As the
government’s brief points out, Sam’s assertion that he did not realize the importance of obtaining
corroborating evidence from Lee or his roommate does not carry much weight in light of the fact
that Sam is represented by an attorney.
In the absence of sufficient evidence to establish past persecution, Sam provides inadequate
evidence that his fear of future persecution is well-founded. The IJ found that “I do not believe that
the record evidence, including the current country condition evidence as established by the State
Department report, reveals any reasonable chance of persecution of a person in respondent’s shoes.”
While he noted that “there are some significant and continuing human rights problems in the
Republic of Congo,” he nonetheless concluded that “there is nothing in the State Department Report
or other record evidence to show that a person of Lary ethnicity who supported a former prime
minister of the country over a decade ago and who has been out of Republic of Congo for over a
decade would face any reasonable chance of persecution should he return to that country today.”
After a review of the record evidence, we find that substantial evidence supported this conclusion.
While the 2006 State Department Report does reveal that former president Nguesso, who was the
source of Sam’s alleged persecution, still holds the office of president in Congo, there is no evidence
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in that Report to suggest that someone in Sam’s position would face a reasonable chance of
persecution upon his return to Congo. The Report provides no evidence that the current Congolese
government is targeting people of Lary ethnicity or would target a teacher who supported the
opposition nearly eleven years ago and has not since been involved in subversive activities. The
question before us is whether the record “compels” the conclusion that the IJ erred in finding that
Sam did not have a well-founded fear of future persecution. See Hammer v. INS, 195 F.3d 836, 840
(6th Cir. 1999). We conclude that it does not.
Accordingly, we agree with the IJ that corroborative evidence of Sam's past persecution and
his fear of future persecution could be “reasonably expected” and that Petitioner's explanation for
its absence was inadequate. Accordingly, we find that he failed to sustain his burden of proof and
affirm the decision of the IJ and BIA as to his asylum claim.
III. Withholding of Removal and CAT Claims
Sam failed to raise his claims for withholding of removal and CAT protection before the BIA,
and the BIA made no mention of these alternative avenues for relief. Under 8 U.S.C. § 1252(d)(1),
we may exercise jurisdiction in immigration appeals only after the applicant has exhausted all of his
administrative remedies. In Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2005), we held that we
can only review claims that have been presented to the BIA and considered on their merits. In
Ramani, we noted the reasons for this exhaustion requirement, stating that if these issues had been
presented below, they could have “been properly dealt with by immigration judges whose experience
in these matters is useful” and “the record on these issues could have been more fully developed.”
Id. at 559. Finally, citing Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994), we recognized that if
an applicant presents both exhausted and unexhausted claims on appeal, “only those claims that are
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properly exhausted may be considered.” Ramani, 378 F.3d at 560. Because Sam failed to exhaust
his administrative remedies as to these claims, we have no jurisdiction to address them. See 8 U.S.C.
1252(d)(1).
CONCLUSION
For the foregoing reasons, we AFFIRM the ruling of the Board of Immigration Appeals and
DENY the petition for review.
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