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: SACK, SOTOMAYOR, and HALL Circuit Judges.

14 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 THEODORE VIALET, Esq., New York, NY, for 20 Petitioner.

21 THOMAS DUPREE, JR., Office of 22 Immigration Litigation, Department of 23 Justice (Matthew H. Mead, United States 24 Attorney, Steven K. Sharpe, Assistant 25 United States Attorney, District of 26 Wyoming, Cheyenne, WY, of counsel), 27 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). Jalloh argues principally that

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. In light of the fact that Jalloh

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 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. Jalloh testified before the IJ that, in

7 1994, he joined a trader's union supporting democracy in Sierra

8 Leone. Jalloh also supported the Sierra Leone People's Party

9 ("SLPP"), whose leader was Tejan Kabbah. 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. He pleaded for his life and was spared. The rebels

17 took his valuables, claiming that they were the fruits of

18 Jalloh's support of the opposition.

19 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. They proceeded to beat

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. There, the RUF beat their prisoners,

3 1 including Jalloh, keeping them bound and threatening them with

2 death and amputation. Jalloh survived, however, and was rescued

3 by ECOMOG1 and government forces.

4 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. There, he stayed with some

7 business associates for about two years. He then came to the

8 United States on July 14, 2001, entering with a friend's passport

9 and leaving his family in Guinea, where apparently they still

10 reside. When asked whether he could return to his home country,

11 Jalloh stated that in Sierra Leone, his "life is not guaranteed,

12 it is not secure. The older town, they are still there, the

13 rebels, they are still there. . . . It may be true but it can

14 happen anytime and you have people, you have the rebels in the

15 country, they can go there any day." Hr'g Tr. dated Apr. 26,

16 2004, at 36.

17 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. The RUF was disarmed and demobilized, although some

21 former RUF members continue to be trouble-makers. Indictments

22 have been returned by The Special Court of Sierra Leone, a United

23 Nations-Sierra Leone war crimes tribunal, against RUF leaders,

1 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. It then reasoned that "the

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." In re Omaro Jalloh, No. A95 467

11 498 (B.I.A. June 13, 2006).

12 Jalloh petitions this court for review.

13 DISCUSSION

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." Islam v.

18 Gonzales,

(2d Cir. 2006). We review factual

19 findings under the substantial evidence standard, which requires

20 that findings "be supported by reasonable, substantial[,] and

21 probative evidence in the record." Lin Zhong v. U.S. Dep't of

22 Justice,

(2d Cir. 2007) (quotation marks

23 omitted). Questions of law are reviewed de novo, as are mixed

24 questions of law and fact, including the "proper application of

25 legal principles to the facts and circumstances of the individual

5 1 case at hand." Secaida-Rosales v. INS,

(2d

2 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."

(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. See 8 C.F.R.

14 § 1208.13(b)(1)(i). Nevertheless, if the alien "has demonstrated

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. 8 C.F.R.

19 § 1208.13(b)(1)(iii)(A); see also Matter of Chen,

16 (B.I.A. 1989). Asylum granted pursuant to section

21 1208.13(b)(1)(iii) is known as "humanitarian asylum." See Ben

22 Hamida v. Gonzales,

(6th Cir. 2007).

6 1 Jalloh argues2 in support of his petition primarily

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 The agency has required that in

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." In re N-M-A-,

(B.I.A.

8 1998).

9 In Matter of Chen,

, 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."

. Conversely, the BIA

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-,

.

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,

(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

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. He

6 therefore cannot complain that the BIA improperly failed to

7 consider such evidence.

8 CONCLUSION

9 For the foregoing reasons, the petition for review is

10 denied.

8