Bamory v. Ashcroft

65 F. App'x 768
CourtCourt of Appeals for the Third Circuit
DecidedApril 4, 2003
DocketNo. 02-2515
StatusPublished

This text of 65 F. App'x 768 (Bamory v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bamory v. Ashcroft, 65 F. App'x 768 (3d Cir. 2003).

Opinion

OPINION

SMITH, Circuit Judge.

I.

Bamory Bailo1 appeals from the May 17, 2002 order of the Board of Immigration Appeals (hereinafter “BIA”), affirming the immigration judge’s denial of his applications for asylum and withholding of removal. The BIA sustained Ballo’s appeal with respect to his request for voluntary departure, and Bailo does not seek review of that decision. The petition for review will be denied.

Bamory Bailo is a native and citizen of Ivory Coast. Bailo testified that he is Muslim and that his hometown of Anyama is predominantly Christian. Bailo, along with two other individuals, formed a religious group in Anyama called “Explosif,” which advocates changes in the interpretation of the Koran that are contrary to the traditional practice of the Muslim religion. Bailo testified that at an Explosif meeting in Anyama in June 1990, “the police came to look for and take the heads of the group Explosif,” and that he fled when the police arrived. After staying in a stranger’s home temporarily, Bailo returned to his own home and remained there for a few days, without incident. He then left Anyama to stay with his grandmother in Gagnoa, another town in Ivory Coast. Two weeks later Bailo received a letter from his father informing him that the two other original members of Explosif had been captured by police: one was dead and the other was imprisoned. Despite this news, Bailo remained in Gagnoa for approximately nine months, from June 1990 to February 1991. He then left Ivory Coast, but returned to Anyama in September 1992. After a fellow member of Explosif was arrested and he heard that the police were pursuing him as well, Bailo left Anyama. He then obtained a visa and traveled to the United States.

Bailo arrived in the United States on December 16, 1992 as a non-immigrant [770]*770visitor for pleasure with authorization to remain for a period not to exceed six months. Bailo stayed in the United States beyond June 16, 1993 without authorization from the INS. In fact, Bailo lived in the United States for four years and applied for asylum only upon arrest by the INS. On October 24, 1995, the INS issued an Order to Show Cause, charging Bailo with being deportable under the Immigration and Nationality Act (hereinafter “INA”) section 241(a)(1)(B), 8 U.S.C. § 1231(a)(1)(B).

At a June 6, 1996 hearing before an immigration judge, Bailo admitted the factual allegations against him and conceded his deportability. On December 19, 1996, Bailo testified at a hearing in support of his asylum application. The immigration judge found Bailo deportable and denied his applications for asylum, withholding of deportation, and voluntary departure. Bailo sought timely review by the BIA. The BIA conducted a de novo review of his claim and issued an order on May 17, 2002 dismissing the appeal in part and sustaining the appeal in part. The BIA affirmed the immigration judge’s denial of asylum and withholding of removal, but granted Bailo the privilege of voluntary departure. Whereas the immigration judge had based his decision on an adverse credibility finding, the BIA concluded that “even assuming the truth of his testimony, which is consistent with his statement attached to his written asylum application, we would agree with the Immigration Judge’s conclusion that the respondent has failed to establish eligibility for asylum or withholding of deportation.” A.R. 2-3. Bailo timely appealed the BIA’s decision.

II.

Because Bailo first applied for asylum prior to September 30, 1996, the immigration judge had subject matter jurisdiction under former sections 1158 and 1253(h) of Title 8 of the U.S.Code (1995). See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996) (hereinafter “IIRIRA”), Section 309(c)(1)(B) (in the case of “an alien who is in exclusion or deportation proceedings as of the effective date of the statute ... the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments”). The BIA had appellate jurisdiction pursuant to 8 C.F.R. § 3.1(b)(2) (1995). This Court has jurisdiction to review the BIA’s order pursuant to former section 106(a) of the INA, 8 U.S.C. § 1105a(a). See Chang v. INS, 119 F.3d 1055, 1059 (3d Cir.1997) (noting that cases where the initial deportation order was issued before September 30, 1996 are governed by former section 106(a) despite its repeal).

III.

On appeal, Bailo challenges the BIA’s determinations that he failed to demonstrate past persecution or a well-founded fear of future persecution, and that he did not meet the standard for withholding of removal. Because the BIA’s conclusions are supported by substantial evidence, we will affirm.

An alien is eligible for a discretionary grant of asylum only if he is unwilling to return to his country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(a). The burden to prove a well-founded fear of persecution lies with the applicant, who must demonstrate that he has a genuine fear of persecution, and that a reasonable person in the same circumstances would similarly fear persecution if returned to the native country in [771]*771question. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). An applicant who establishes past persecution, however, benefits from a presumption that he has a well-founded fear of future persecution. See, e.g., Obianuju Ezeagwuna v. Ashcroft, 301 F.3d 116, 126-27 (3d Cir.2002).

Withholding of removal is available under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3) (2000). This section provides that the Attorney General may “not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in such country on account of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Obianuju Ezeagumna, 301 F.3d at 127. The burden on the alien to prove eligibility for the non-discretionary withholding of removal is higher than the standard for a well-founded fear of persecution — there must be a “clear probability” that his or her “life or freedom would be threatened.” 8 U.S.C. § 1231(b)(3)(A); Chang v. INS,

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