Ebrahima Kabba v. Eric Holder, Jr. , 607 F. App'x 637 ( 2015 )

FILED
NOT FOR PUBLICATION APR 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EBRAHIMA KABBA, No. 12-72416
Petitioner, Agency No. A079-267-249
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 9, 2015**
Seattle, Washington
Before: FERNANDEZ, RAWLINSON, and CALLAHAN, Circuit Judges.
Ebrahima Kabba, a native of Sierra Leone, petitions for review of a decision
of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ)
denial of his application for asylum, withholding of removal, and protection under
the Convention Against Torture. Kabba claims that he suffered past persecution
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
because of his refusal to join the Revolutionary United Front (RUF). The IJ denied
relief because Kabba failed to establish past persecution based on a protected
ground or a well-founded fear of persecution if returned to Sierra Leone.1 The BIA
agreed and denied all relief. We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition for review in part and dismiss it in part.
This court reviews questions of law de novo. Annachamy v. Holder, 733
F.3d 254, 258 (9th Cir. 2012), overruled on other grounds by Abdisalan v. Holder,
774 F.3d 517, 526 (9th Cir. 2014). The BIA’s findings of fact are reviewed for
substantial evidence and “are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Jie
Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013). An applicant may be granted
asylum if he has suffered past persecution or has a well-founded fear of future
persecution on account of a protected ground: race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A); 8 C.F.R. § 1208.13(b).
1. To establish eligibility for asylum based on past persecution in a pre-
REAL ID case, an applicant must show that his persecutors “were motivated, at
1
The IJ also made an adverse credibility determination, however, as the
BIA did not rely upon that determination, we do not review it. See Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010).
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least in part, by a protected ground.” Sinha v. Holder, 564 F.3d 1015, 1021 (9th
Cir. 2009) (alterations omitted). Where an applicant is resisting recruitment by a
paramilitary organization, he must establish that he has been targeted for
persecution because of a protected ground, rather than his refusal to fight for the
organization. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992); see also Pedro-
Mateo v. I.N.S., 224 F.3d 1147, 1151 (9th Cir. 2000) (“When great numbers of
civilians in disputed areas are forcibly conscripted by both sides in a guerilla
war . . . . [t]o qualify for asylum . . . an alien’s predicament must be ‘appreciably
different from the dangers faced by the alien’s fellow citizens.’”) (quoting Vides-
Vides v. I.N.S., 783 F.2d 1463, 1469 (9th Cir. 1986)).
The BIA’s decision that Kabba failed to establish past persecution on
account of a protected ground is supported by substantial evidence. Kabba alleges
that the RUF wanted him to join its ranks, but did not allege that he was persecuted
on the basis of race, nationality, or social group. He admits that neither he nor his
family were ever involved in any political advocacy or organization. Kabba claims
he resisted the RUF because of his religious beliefs, but does not argue that the
RUF targeted him on the basis of his religion. Because Kabba failed to establish
that he was targeted by the RUF on account of his religious or political beliefs, the
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BIA did not err by concluding that he failed to establish past persecution on a
protected ground.
2. The BIA also concluded that Kabba had no well-founded fear of
persecution if returned to Sierra Leone. Kabba has not clearly challenged this
determination and thus appears to have waived this argument. See Armentero v.
I.N.S., 412 F.3d 1088, 1095 (9th Cir. 2005) (“Failure to raise an argument in an
opening brief constitutes waiver . . . .”). Even if not waived, Kabba has not offered
any evidence that would compel this court to reach a different conclusion. See 8
U.S.C. § 1252(b)(4)(B); Jie Cui, 712 F.3d at 1336. Because Kabba failed to
establish either past persecution or a well-founded fear of persecution if returned to
Sierra Leone, the BIA correctly determined that Kabba is ineligible for asylum.
3. The BIA also did not err by denying Kabba’s claim for humanitarian
relief. An applicant who has experienced past persecution, but has no present well-
founded fear of persecution, may obtain asylum if he demonstrates compelling
reasons for being unwilling or unable to return to his country arising out of the
severity of the past persecution. 8 C.F.R. § 1208.13(b)(1)(iii)(A); see also Sowe v.
Mukasey, 538 F.3d 1281, 1287 (2008). Because Kabba failed to demonstrate past
persecution, his claim for humanitarian relief also fails.
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4. It is unclear whether Kabba seeks review of the BIA’s denial of
withholding of removal. However, even if he has not waived this claim, see
Armentero, 412 F.3d at 1095, the BIA did not err. Where the claim for
withholding of removal is based on the same facts as the claim for asylum, failure
to establish eligibility for asylum results in failure to demonstrate eligibility for
withholding of removal, Jie Cui, 712 F.3d at 1338 n.3 (citing Halaim v. I.N.S., 358
F.3d 1128, 1132 (9th Cir. 2004)). Kabba offers no additional bases to support his
claim for withholding of removal, therefore it necessarily fails.
5. Kabba did not address the BIA’s denial of his claim for protection
under the Convention Against Torture, thus the claim is waived. Id. (holding
claims for relief under the Convention Against Torture that were not addressed in
the petitioner’s opening brief were waived); Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically and
distinctly argued and raised in a party’s opening brief are waived.”).
6. Finally, this court lacks jurisdiction to review the discretionary denial
of Kabba’s request for voluntary departure. 8 U.S.C. § 1229c(f); Esquivel-Garcia
v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).
The petition for review is DISMISSED in part and DENIED in part.
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