Jalloh v. Gonzales, No. 06-3235 (2d Cir. 2007)
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06-3235-ag Jalloh v. Gonzales 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 (Argued: May 1, 2007 Decided: August 17, 2007) 5 Docket No. 06-3235-ag 6 ------------------------------------- 7 OMARO JALLOH, 8 Petitioner, 9 - v - 10 ALBERTO GONZALES, 11 Respondent. 12 ------------------------------------- 13 Before: 14 SACK, SOTOMAYOR, and HALL Circuit Judges. Petition for review of an order of the Board of 15 Immigration Appeals affirming the denial by an Immigration Judge 16 of the petitioner's application for asylum, withholding of 17 removal, and relief pursuant to the Convention Against Torture. 18 Petition denied. 19 20 THEODORE VIALET, Esq., New York, NY, for Petitioner. 21 22 23 24 25 26 27 THOMAS DUPREE, JR., Office of Immigration Litigation, Department of Justice (Matthew H. Mead, United States Attorney, Steven K. Sharpe, Assistant United States Attorney, District of Wyoming, Cheyenne, WY, of counsel), Washington, D.C., for Respondent. 28 PER CURIAM : 1 Petitioner Omaro Jalloh, a citizen of Sierra Leone, 2 petitions for review of a June 13, 2006 decision of the Board of 3 Immigration Appeals ("BIA") adopting and affirming Immigration 4 Judge ("IJ") Sarah M. Burr's decision dated April 26, 2004, 5 denying Jalloh's applications for asylum, withholding of removal, 6 and relief pursuant to the United Nations Convention Against 7 Torture and Other Cruel, Inhuman or Degrading Treatment or 8 Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 9 (1988), 1465 U.N.T.S. 85 ("CAT"). In re Omaro Jalloh, No. A95 10 467 498 (B.I.A. June 13, 2006), aff'g No. A95 467 498 (Immg. Ct. 11 N.Y. City Apr. 26, 2004). 12 substantial evidence does not support the BIA's finding that his 13 past persecution was not so severe as to warrant a grant of 14 asylum notwithstanding the fact that Jalloh has no well-founded 15 fear of future persecution. 16 provided no evidence of long-lasting physical or psychological 17 effects of the persecution he experienced, the BIA's decision to 18 deny "humanitarian asylum" was supported by substantial evidence. 19 BACKGROUND 20 Jalloh argues principally that In light of the fact that Jalloh Omaro Jalloh is a citizen of Sierra Leone. He is a 21 member of the Fula tribe. He arrived in the United States on 22 July 14, 2001, and was served with a Notice to Appear on July 1, 23 2002, charging him with removability on the grounds that he 24 lacked a valid entry document. Jalloh conceded removability and 2 1 applied for asylum, withholding, and CAT relief. The facts below 2 are taken from his testimony before the IJ, as well as affidavits 3 submitted with his applications for relief. 4 In 1991 civil war broke out in Sierra Leone between the 5 Revolutionary United Front ("RUF") and the Civil Defense Force, a 6 government militia. 7 1994, he joined a trader's union supporting democracy in Sierra 8 Leone. 9 ("SLPP"), whose leader was Tejan Kabbah. Jalloh testified before the IJ that, in Jalloh also supported the Sierra Leone People's Party Kabbah was elected 10 president in 1996, but a military coup led by the RUF and the 11 Armed Forces Revolutionary Council ("AFRC") overthrew his SLPP 12 government the next year. 13 Members of the RUF physically attacked Jalloh on at 14 least two occasions, once also attacking members of his family. 15 In February or March 1997, RUF and AFRC rebels looted his house 16 in Freetown. 17 took his valuables, claiming that they were the fruits of 18 Jalloh's support of the opposition. 19 He pleaded for his life and was spared. The rebels On January 6, 1999, the RUF attacked Freetown, its 20 soldiers reaching Jalloh's house four days later. The soldiers 21 brought Jalloh and his family out of the house and tied Jalloh's 22 and his wife's hands behind their backs. 23 Jalloh and rape his wife, and to burn his house to the ground. 24 They then took him to a mountainous area, where he was held 25 captive for two weeks. They proceeded to beat There, the RUF beat their prisoners, 3 1 including Jalloh, keeping them bound and threatening them with 2 death and amputation. 3 by ECOMOG1 and government forces. 4 Jalloh survived, however, and was rescued After spending some time in refugee camps, Jalloh 5 reunited with his family. Jalloh and his family ultimately 6 crossed over the border into Guinea. 7 business associates for about two years. 8 United States on July 14, 2001, entering with a friend's passport 9 and leaving his family in Guinea, where apparently they still There, he stayed with some He then came to the 10 reside. 11 Jalloh stated that in Sierra Leone, his "life is not guaranteed, 12 it is not secure. 13 rebels, they are still there. . . . 14 happen anytime and you have people, you have the rebels in the 15 country, they can go there any day." 16 2004, at 36. 17 When asked whether he could return to his home country, The older town, they are still there, the It may be true but it can Hr'g Tr. dated Apr. 26, The situation in Sierra Leone has improved dramatically 18 since Jalloh fled. In 2002, the civil war ended, Kabbah was 19 elected to the presidency, and the SLPP won a large majority in 20 Parliament. 21 former RUF members continue to be trouble-makers. 22 have been returned by The Special Court of Sierra Leone, a United 23 Nations-Sierra Leone war crimes tribunal, against RUF leaders, The RUF was disarmed and demobilized, although some 1 Indictments The ECOMOG, i.e., the Economic Community of West African States Monitoring Group, is a West African regional peacekeeping force. 4 1 including those responsible for the RUF's January 1999 attack on 2 Freetown. 3 The IJ denied the application and ordered Jalloh 4 removed. The BIA, assuming that Jalloh had established past 5 persecution, concluded that the government's evidence of changed 6 country conditions rebutted the resulting presumption of a well- 7 founded fear of future persecution. 8 severity of any persecution which the respondent may have endured 9 does not rise to a level warranting a grant of asylum based on 10 such past persecution alone." 11 It then reasoned that "the 498 (B.I.A. June 13, 2006). 12 In re Omaro Jalloh, No. A95 467 Jalloh petitions this court for review. DISCUSSION 13 14 I. Standard of Review 15 "Where, as here, the BIA adopts and affirms the 16 decision of the IJ, and supplements the IJ's decision, we review 17 the decision of the IJ as supplemented by the BIA." 18 Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). 19 findings under the substantial evidence standard, which requires 20 that findings "be supported by reasonable, substantial[,] and 21 probative evidence in the record." 22 Justice, 480 F.3d 104, 116 (2d Cir. 2007) (quotation marks 23 omitted). 24 questions of law and fact, including the "proper application of 25 legal principles to the facts and circumstances of the individual Islam v. We review factual Lin Zhong v. U.S. Dep't of Questions of law are reviewed de novo, as are mixed 5 1 case at hand." 2 Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003). 3 II. Asylum Based on Past Persecution 4 An alien is presumed to have a well-founded fear of 5 future persecution -- and is thereby eligible for asylum -- if he 6 can show that he "has suffered persecution in the past . . . on 7 account of . . . membership in a particular social group, or 8 political opinion, and is unable or unwilling to return to, or 9 avail himself . . . of the protection of, that country owing to 10 such persecution." 8 C.F.R. § 1208.13(b)(1). The government may 11 rebut that presumption, however, if it can demonstrate that 12 conditions in the country have changed such that the alien no 13 longer has a well-founded fear of persecution. 14 § 1208.13(b)(1)(i). 15 compelling reasons for being unwilling or unable to return to the 16 country arising out of the severity of the past persecution," he 17 is still eligible for asylum even though he does not have a 18 well-founded fear of future persecution. 19 § 1208.13(b)(1)(iii)(A); see also Matter of Chen, 20 I. & N. Dec. 20 16 (B.I.A. 1989). 21 1208.13(b)(1)(iii) is known as "humanitarian asylum." 22 Hamida v. Gonzales, 478 F.3d 734, 740 (6th Cir. 2007). See 8 C.F.R. Nevertheless, if the alien "has demonstrated 8 C.F.R. Asylum granted pursuant to section 6 See Ben Jalloh argues2 in support of his petition primarily 1 2 that substantial evidence does not support the BIA's conclusion 3 that the severity of his past persecution was insufficient for a 4 grant of humanitarian asylum.3 5 order for an alien to obtain humanitarian asylum, he or she must 6 establish both "the severe harm and the long-lasting effects of 7 that harm." 8 1998). 9 The agency has required that in In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A. In Matter of Chen, 20 I. & N. Dec. 16, for example, the 10 BIA granted asylum to an alien who testified that because of the 11 persecution he suffered, "he is physically debilitated, must wear 12 a hearing aid due to his head injury, is always anxious and 13 fearful, and is often suicidal." 14 denied humanitarian asylum to another alien because of, inter 15 alia, "the lack of evidence of severe psychological trauma 16 stemming from the harm" he suffered in his native Afghanistan. 17 In re N-M-A-, 22 I. & N. Dec. at 326. Id. at 20. Conversely, the BIA 2 Jalloh also contends that substantial evidence does not support the BIA's finding that country conditions had changed. We disagree. Substantial evidence supports the BIA's findings that 1) the civil war in Sierra Leone ended, 2) Jalloh's party, the SLPP, has gained control, and 3) Tejan Kabbah, Jalloh's preferred candidate, has been re-elected president of Sierra Leone. 3 The government contends that this argument was waived by Jalloh's failure to raise it before the IJ. The argument was, however, raised before and addressed by the BIA. It is unclear whether this is sufficient to meet the exhaustion requirement. Cf. Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004). Because we need not resolve this question in order to decide this petition, we assume that the exhaustion requirements have been met and address Jalloh's argument on the merits. See id. 7 1 Although we have no reason to doubt the gravity of the 2 dreadful mistreatment that Jalloh suffered at the hands of his 3 RUF persecutors, Jalloh provided no evidence of long-lasting 4 physical or mental effects of his persecution that would support 5 his insistence that he not be returned to Sierra Leone. 6 therefore cannot complain that the BIA improperly failed to 7 consider such evidence. CONCLUSION 8 9 10 He For the foregoing reasons, the petition for review is denied. 8
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