Moussa Mballo v. Eric H. Holder, Jr. , 340 F. App'x 317 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0562n.06
FILED
No. 08-3970 Aug 12, 2009
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MOUSSA MBALLO, )
)
Petitioner, )
)
v. ) PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General of the )
United States, )
)
Respondent. )
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
PER CURIAM. Moussa Mballo petitions for review of the order of the Board of
Immigration Appeals (“BIA”) upholding the decision of the Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Because there is no evidence that compels a reversal of the BIA’s decision, we DENY the
petition for review.
Background
Mballo is a native and citizen of Guinea who entered the United States without valid
documentation. After a 1998 incident between his family and several soldiers that forms the basis
for his application, he fled Guinea and spent two years working on a farm in Senegal. Using a fake
passport, he allegedly came to the United States in 2000.
No. 08-3970
Mballo v. Holder
Mballo applied for relief in 2002 before being placed in removal proceedings, and again after
removal proceedings were initiated in 2003. In both applications, he claimed persecution on account
of political opinion because of an incident that occurred after an election in Guinea in 1998. Soldiers
attacked his father and uncle in their home because of their involvement with the democratic party
of Alpha Condé. Mballo came to their defense and was attacked by the soldiers. He was taken to
the hospital with his father, who died of his injuries. Because he feared retaliation from the soldiers,
Mballo escaped from the hospital to Senegal.
At the hearing, Mballo was the sole testifying witness, and he did not submit any
documentary evidence supporting his account of the 1998 incident. The IJ denied the requested
relief, finding that Mballo was not credible, his application for asylum was untimely, and that he
failed to meet his burden of proof for the asylum and withholding claims. It also denied asylum as
a matter of discretion. The BIA affirmed the denials of the asylum and INA withholding claims,
finding that even if Mballo were credible and had filed a timely asylum application, there was no
evidence he was persecuted on account of his own or an imputed political opinion. It affirmed the
denial of the CAT claim because Mballo failed to show that, almost a decade after the 1998 incident,
officials in Guinea would more likely than not torture him if he returned.
On appeal, Mballo argues that the credibility and corroboration findings of the IJ should be
reversed and that his untimely application should be excused. As the BIA did, we assume adequate
credibility and corroboration, and a timely asylum application. Therefore, we consider only the
argument that he established persecution on account of political opinion.
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No. 08-3970
Mballo v. Holder
Analysis
We review the BIA’s decision where, as here, it does not summarily adopt the IJ’s
reasoning. See Fang Huang v. Mukasey, 523 F.3d 640, 651 (6th Cir. 2008). Factual
determinations, including that an applicant qualifies as a “refugee,” are reviewed under the
substantial evidence test, “meaning that findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Patel v. Gonzales, 470 F.3d 216,
219 (6th Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotations omitted).
An applicant for asylum must establish that he qualifies as a “refugee” because of
persecution on account of a protected ground, 8 C.F.R. § 1208.13(b)(1)-(2), and here Mballo
offered political opinion as that ground. In order to meet this burden, the applicant must show he
“was persecuted on account of or because of the political opinion.” Marku v. Ashcroft, 380 F.3d
982, 986 (6th Cir. 2004) (emphasis in original). Mballo’s claim for past persecution was based
on the 1998 incident when the soldiers attacked his father and uncle. Even crediting his account
of that night, there is no evidence that he was attacked by the soldiers because of his political
opinion. He has repeatedly asserted he has no political opinions or affiliations.
He also claims that his father and uncle’s political opinions were imputed to him. The
Supreme Court has not decided whether an imputed political opinion may be the basis for an
asylum claim. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482 (1992); Pascual v. Mukasey, 514
F.3d 483, 486 (6th Cir. 2007). Consistent with several other circuits, we have recognized in
unpublished decisions that an imputed political opinion may suffice. See Abdulnoor v. Ashcroft,
107 Fed. App’x 594, 595 (6th Cir. 2004); Ba v. I.N.S., 102 Fed. App’x 464, 465 (6th Cir. 2004).
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No. 08-3970
Mballo v. Holder
If so, the applicant must show persecutors “actually imputed a political opinion to him and
persecuted him on account of that opinion.” See Ba, 102 Fed. App’x at 465 (citing Ciorba v.
Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)).
Assuming that an imputed political opinion would suffice, Mballo’s claim fails because
he consistently stated that the soldiers attacked him because he went to his father’s defense and
struck one of them, not because the soldiers imputed an opinion to him. For the same reasons,
Mballo failed to establish a well-founded fear of future persecution on account of an actual or
imputed political opinion. As we noted in Pascual, if we were to recognize imputed political
opinion as a basis for asylum claims, it would be difficult to show a well-founded fear of future
persecution on that ground because that would “require an inquiry into whether the prospective
persecutor would make the same mistake again if the alien returned.” 514 F.3d at 488.
Finding Mballo has not met the lower asylum burden of proof for persecution, we affirm
the BIA’s dismissal of the claim for withholding of removal under the INA. See I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987) (discussing the different burdens of proof). On
appeal, Mballo does not challenge the denial of relief under the CAT. Therefore, we decline to
consider it. See United States v. Moore, 376 F.3d 570, 576 (6th Cir. 2004).
The petition for review is DENIED.
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