Bah v. Garland

Opinion

22-6213 Bah v. Garland BIA Poczter, IJ A208 922 676

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of May, two thousand twenty- four.

PRESENT: REENA RAGGI, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________

THIERNO MADJOU BAH, Petitioner,

v. 22-6213 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Evan M. Goldberg, Law Office of Evan M. Goldberg, Washington, DC. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Erica B. Miles, Assistant Director; Rachel P. Berman-Vaporis, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Thierno Madjou Bah, a native and citizen of Guinea, seeks review

of a BIA decision affirming an Immigration Judge (“IJ”) decision denying his

application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Thierno Madjou Bah, No. A208 922 676 (B.I.A. Apr.

6, 2022), aff’g No. A208 922 676 (Immig. Ct. N.Y. City Apr. 22, 2019). We assume

the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as the final agency determination. See

Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We review the agency’s

factual findings for substantial evidence and questions of law and the application

of law to fact de novo. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

“[T]he administrative findings of fact are conclusive unless any reasonable

2 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

Bah had the burden to establish that he suffered past persecution, or that he

has a well-founded fear of future persecution and that “race, religion, nationality,

membership in a particular social group, or political opinion was or will be at least

one central reason” for that persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see 8 C.F.R.

§ 1208.13(a), (b). “In determining whether the applicant has met the applicant’s

burden, the trier of fact may weigh the credible testimony along with other

evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). As set forth below, the IJ

reasonably concluded that Bah did not meet his burden of proof given his failure

to allege sufficient facts.

I. Past Persecution

“[P]ersecution is an extreme concept that does not include every sort of

treatment our society regards as offensive.” Mei Fun Wong v. Holder, 633 F.3d 64,

72 (2d Cir. 2011) (quotation marks omitted). A valid claim of past persecution

may “encompass[] a variety of forms of adverse treatment, including non-life-

threatening violence and physical abuse,” but the harm must be sufficiently

severe, rising above “mere harassment.” Ivanishvili v. U.S. Dep’t of Just., 433 F.3d

3 332, 341 (2d Cir. 2006) (quotation marks and brackets omitted); see also Beskovic v.

Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (“[T]he difference between harassment

and persecution is necessarily one of degree,” which “must be assessed with

regard to the context in which the mistreatment occurs.” (quotation marks and

emphasis omitted)).

Bah alleged that while working as a police investigator in Guinea, he and

his co-investigator recommended that a defendant of Malinke ethnicity pay a debt

to a person of Fulani ethnicity. When Bah, also an ethnic Fulani, delivered the

report to the police director, an ethnic Malinke, the director became angry and

screamed at Bah and his co-investigator. On his way home, Bah received a call

that his co-investigator had been arrested. Bah fled to a friend’s house for safety,

where he hid for two months before receiving a visa to travel to Brazil. At some

point before leaving Guinea, Bah allegedly received a message from the police

director threatening to kill him. Bah presented a police summons directing him

to appear, which he construed as a summons for his arrest. Bah argues that the

threats he received, his co-investigator’s arrest, the summons, and historical

violence between the Malinke and Fulani ethnic groups established his claim of

past persecution.

4 We are satisfied that the IJ did not err in concluding that Bah failed to

establish past harm that rose to the level of persecution.

First, the record supports the IJ’s finding that the unfulfilled threats against

Bah did not rise to the level of persecution. CAR 60; see Huo Qiang Chen v. Holder,

773 F.3d 396, 406 (2d Cir. 2014) (holding that “threats of persecution, no matter

how credible, do not demonstrate past persecution”); Gui Ci Pan v. U.S. Att’y Gen.,

449 F.3d 408, 412 (2d Cir. 2006) (noting that courts have “rejected [persecution]

claims involving ‘unfulfilled’ threats”).

Second, the IJ correctly observed that an asylum applicant can establish past

persecution based on harm only to himself, so the arrest of Bah’s co-investigator

did not establish Bah’s own past persecution. CAR 60; see Shi Liang Lin v. U.S.

Dep’t of Just., 494 F.3d 296, 308 (2d Cir. 2007) (“[T]he statutory scheme

unambiguously dictates that applicants can become candidates for asylum relief

only based on persecution that they themselves have suffered or must suffer.”).

Third, the IJ reasonably concluded that Bah could not establish past

persecution based on his claim that he received a summons for his arrest because

of his conflict with the police director over his investigation of the Malinke debtor.

CAR 60. The summons—generically titled “summons for necessity judicial

5 denquest [sic]”—identified Bah as a “sociologist” and simply “[i]nvite[d]” him

“[t]o be presented on the 04/27/2015 at 10 am to the Central Direction of the

Judiciary Police” without further detail. CAR 156. It does not reference an arrest

or identify charges against Bah. Even if the summons was in fact a warrant for

Bah’s arrest, the mere threat of detention is not sufficient to establish past

persecution. See Guan Shan Liao v. U.S. Dep’t of Just., 293 F.3d 61, 70 (2d Cir. 2002)

(stating that a “threat of detention . . . itself . . . is not past persecution”).

Finally, the country conditions evidence reflecting violence between the

Fulani and Malinke ethnic groups did not prove that Bah himself suffered ethnic

violence; indeed, Bah did not allege that he was a victim of any such violence.

II. Future Persecution

Absent past persecution, Bah had the burden to demonstrate a well-founded

fear of future persecution, “which requires that the alien present credible

testimony that he subjectively fears persecution and establish that his fear is

objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

2004); see also 8 C.F.R. § 1208.13(b)(2). “Objective reasonableness entails a

showing that a reasonable person in the petitioner’s circumstances would fear

persecution if returned to his native country.” Jian Xing Huang v. U.S. INS, 421

6 F.3d 125, 128 (2d Cir. 2005). A “fear may be well-founded even if there is only a

slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284

(2d Cir. 2000). But a “speculative” fear that lacks “solid support in the record” is

not objectively reasonable. Jian Xing Huang, 421 F.3d at 129. Bah argues that he

demonstrated a well-founded fear of future persecution based on his credible

testimony, including about the summons he received, the persecution of his

similarly-situated co-investigator, and his Fulani ethnicity.

We conclude that the agency reasonably found that his claim of feared

future persecution was speculative. First, as already noted, the summons does

not reference an arrest or identify charges against Bah. Second, the co-

investigator’s letter is vague and does not confirm what led to his arrest. Third,

while the country conditions evidence and article that Bah submitted discuss

violence between Fulani and Malinke youth, they do not reflect a pattern or

practice of persecution of Fulani people. See 8 C.F.R. § 1208.13(b)(2)(iii) (a well-

founded fear of persecution requires either a reasonable possibility of being

singled out for persecution or a pattern or practice of persecution of similarly

situated individuals). Instead, the article states that 40% of the population is

Fulani and 30% is Malinke, Fulani people are perceived as “wealthier and more

7 prosperous” than other ethnic groups in Guinea, and there is mutual violence

between Malinke and Fulani youth. CAR 225–28. Finally, Bah failed to present

evidence that people looked for him after he left Guinea or would look for him if

he returned, given the passage of approximately nine years since the 2015 incident

with the police director. 1

In sum, the agency reasonably concluded that Bah did not establish that he

suffered past harm rising to the level of persecution, see Ivanishvili, 433 F.3d at 341,

or a well-founded fear of future persecution, see Jian Xing Huang, 421 F.3d at 129.

Bah’s failure to establish the well-founded fear required for asylum is also

dispositive of withholding of removal and CAT relief. See Lecaj v. Holder, 616 F.3d

111, 119–20 (2d Cir. 2010) (holding that when an applicant fails to “demonstrate

the slight, though discern[i]ble, chance of persecution required for the grant of

asylum, he necessarily fails to demonstrate the clear probability of future

persecution required for withholding of removal, and the more likely than not to

be tortured standard required for CAT relief” (quotation marks and citations

omitted)).

1 Bah claimed that his mother told him that “some people” had looked for him in 2017, but he did not specify who those people were and why they were looking for him. CAR 99–100. 8 For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court