Mohammed Dolley v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: July 28, 2011
• Docket: 10-1804
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 10-1804 _____________

MOHAMMED ABDOULAYEE DOLLEY, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent _____________

Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA No.A089-190-416) Immigration Judge: Honorable Dorothy Harbeck _____________

Argued July 12, 2011

Before: RENDELL, SMITH and FISHER, Circuit Judges.

(Opinion Filed: July 28, 2011) _____________

Sarah L. Cave. Esq. Michael Tiger, Esq. [ARGUED] Hughes, Hubbard & Reed One Battery Park Plaza New York, NY 10004 Counsel for Petitioner

Jacob A. Bashyrov, Esq. Eric H. Holder, Jr., Esq. Thomas W. Hussey, Esq. John J. W. Inkeles, Esq. [ARGUED] United States Department of Justice Office of Immigration Litigation, Civil Division P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent

_____________

OPINION OF THE COURT _____________

RENDELL, Circuit Judge.

Petitioner Mohammed Abdoulayee Dolley seeks review of a final order of

removal by the Board of Immigration Appeals (“BIA”) pursuant to 8 U.S.C. § 1252(b).

He contends that the Immigration Judge (“IJ”), whose decision the BIA affirmed without

opinion, erred in denying his application for asylum under 8 U.S.C. § 1158, withholding

of removal pursuant to 8 U.S.C. § 241(b)(3), and for relief under the Convention Against

Torture, 8 C.F.R. § 1208.16(c). We will deny his Petition.

I.

We write solely for the benefit of the parties and presume their familiarity with the

factual context and procedural history of this case. Dolley, a Liberian national, returned

to his hometown of Ganta City in September 2006, having previously fled to neighboring

Guinea in 2003 to escape a decades-long civil war that was motivated in part by

animosity between the Mandingo and Mano ethnic groups. Upon his return, Dolley, a

Mandingo, discovered that his family‟s land had been occupied by several Mano, and his

family‟s home had been destroyed and replaced with temporary settlements. Dolley

testified that unspecified Manos on the street and Mano squatters on his land threatened

and taunted him and other Mandingos.

2 At the same time, the Liberian government established a Land Reform

Commission to address the frequent land disputes between Mandingos and Manos. This

Commission visited Ganta City in late 2007, and Dolley sought to reclaim his land and

presented the Commission with a copy of the deed to his land, which he had obtained

from his mother in Guinea. The Commission ordered that no construction should occur

on the disputed land while it resolved the claim. In spite of the order, a Mano named

William Jalla began constructing a permanent structure on Dolley‟s land in March 2008,

and refused to halt construction after Dolley confronted his contractor with the

Commission‟s order. Dolley and several Mandingos then destroyed the structure. Jalla

pressed charges against Dolley for the destruction, but a magistrate judge released Dolley

on bond. A week later, several Mano approached Dolley‟s girlfriend and told her they

were going to kill him, and five men came to Dolley‟s temporary home the same night,

called him a criminal, and chased him when he attempted to escape.

Dolley fled to his cousin‟s house in Monrovia, the national capital, and resided

there from March to September 2008. During that time, Dolley visited a Monrovia

market frequented by travelers from Ganta, where he encountered Jalla. Jalla assaulted

Dolley and threatened to kill him, and Dolley fled to a police station. As a result of this

incident, Dolley‟s cousin procured a United States lawful permanent resident card and

Liberian passport for Dolley in the name of another individual, and Dolley flew to New

York, where he was detained.

At his hearing, Dolley presented his birth certificate, which his cousin had

procured for him while Dolley was in detention, to corroborate his identity, but offered

3 no other corroboration for his testimony. After a two-day merits hearing, the IJ found

Dolley credible, but denied his claims for relief on grounds that he had failed to

corroborate his claims and did not provide an explanation for his failure to do so. The IJ

next observed that Dolley had failed to demonstrate past persecution based on the two

incidents in which Dolley was directly threatened, holding that Dolley‟s fear of harm was

grounded in a personal dispute related to property rights. The IJ found the remainder of

Dolley‟s claims of persecution insufficiently substantial or imminent to constitute past

persecution or to serve as a basis for a finding of a well-founded fear of future

persecution. The IJ also determined that Dolley‟s fear of persecution was not country-

wide as he had not established that the Liberian government was unable or unwilling to

protect him or an inability to reasonably relocate to another part of Liberia.

The IJ likewise denied Dolley‟s request for relief under the more stringent

requirements for withholding of removal and the Convention Against Torture in light of

his inability to prove that he is more likely than not to be subject to persecution or torture

if removed to Liberia. The BIA affirmed without opinion pursuant to 8 C.F.R.

§ 1003.1(e)(4).

II.

Because the Board summarily affirmed and adopted the IJ‟s decision, we review

the latter decision. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). The IJ‟s

credibility determinations and findings of fact are evaluated under the substantial

evidence standard, and we “will not disturb the IJ‟s [findings] if they are supported by

reasonable, substantial and probative evidence on the record considered as a whole.” Id.

4 (citation & quotations omitted). “Under this deferential standard, the IJ‟s finding must be

upheld unless the evidence not only supports a contrary conclusion, but compels it.”

Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007) (citation & quotations omitted).

As a general principle, an asylum applicant possesses the burden of demonstrating

his entitlement to relief as a “refugee” by establishing that he is “„unable or unwilling to

return to, and is unable or unwilling to avail himself or herself of the protection of, [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.‟” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir. 2007) (quoting

8 U.S.C. § 1101(a)(42)). To establish past or future persecution, “an applicant must

„show past or potential harm rising to the level of persecution on account of a statutorily

enumerated ground that is committed by the government or by forces the government is

unable or unwilling to control.‟” Kibinda, 477 F.3d at 119 (citation omitted).

Dolley avers that his testimony of physical mistreatment and economic deprivation

satisfied this threshold for a finding of past persecution, and contends that the IJ

improperly required corroboration of relevant facts despite finding Dolley credible. We

disagree. Under the governing statute, “[w]here the trier of fact determines that the

applicant should provide evidence that corroborates otherwise credible testimony, such

evidence must be provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Corroboration may

reasonably be expected where “the facts are central to the applicant‟s claim and easily

subject to verification,” and we defer to the trier of fact‟s “conclusive” findings on

5 availability of corroborating evidence unless we find “that a reasonable trier of fact is

compelled to conclude that such corroborating evidence is unavailable.” Id.

§§ 1252(b)(4)(B), (D)). We have consistently held that “failure to produce corroborating

evidence may undermine an applicant‟s case where (1) the IJ identifies facts for which it

is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to

corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v.

Att’y Gen., 484 F.3d 185, 191 (3d Cir. 2007) (citing Abdulai v. Ashcroft, 239 F.3d 542,

554 (3d Cir. 2001)).

Here, the IJ engaged in the Abdulai inquiry, identifying the facts for which the

expectation of corroboration was reasonable – evidence pertaining to the land ownership

dispute – and discussed Dolley‟s failure to corroborate said facts. Furthermore, under

Abdulai‟s third prong, the IJ provided Dolley ample opportunity at the hearing to explain

his failure to obtain the corroborating evidence, expressly inquiring why Dolley had not

attempted to acquire corroboration of his deed and noting that the lack of corroboration –

or sufficient explanation as to its absence – undermined Dolley‟s request for asylum.

This factual finding is supported by substantial evidence as “[t]here is nothing in the

record to suggest that a „reasonable trier of fact‟ would be „compelled to conclude that

corroborating evidence is unavailable.” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.

2005) (quoting 8 U.S.C. § 1252(b)(4)) (emphasis added). Accordingly, we find no error

in the IJ‟s ruling in this regard.1

1 Because the IJ properly performed Abdulai‟s three-step inquiry, she was not required to provide notice of the corroboration she expected or to continue the hearing so that Dolley could obtain such evidence. Dolley conceded the centrality of the land deed to his 6 As mentioned, threats rising to the level of persecution “must be on account of a

statutorily protected ground,” and “we have refused to extend asylum protection for

threats that, while sinister and credible in nature, were not highly imminent or concrete or

failed to result in any physical violence or harm to the alien.” Chavarria v. Gonzales,

446 F.3d 508, 518 (3d Cir. 2006) (citation omitted). Here, the several threats by various

Mano towards Dolley upon his return to Ganta City were “sinister and credible,” and may

have been based on Dolley‟s Mandingo status. These general threats, however, were

directed at all returning Mandingos, were “not highly imminent or concrete,” and

notably, did not result in any physical violence or harm until Dolley proactively

destroyed Jalla‟s construction. See id. As such, we find no error in the IJ‟s rejection of

Dolley‟s claim that these threats rose to the level of persecution.

At the same time, Dolley testified to two incidents in which, he urges, he was

directly in danger: (1) when he was threatened and chased by Jalla and other Mano at his

home, and (2) when he unexpectedly met and was assaulted by Jalla in a Monrovia

market. The IJ concluded that this asserted mistreatment related to a personal dispute

and, therefore, did not constitute persecution on account of a protected ground.

“[A]sylum may not be granted if a protected ground is only an „incidental, tangential, or

superficial‟ reason for persecution of an asylum applicant,” and “factually intertwined

claim and appreciated the need for corroboration, but, when asked by the IJ, he failed to sufficiently explain his failure to produce the deed despite his cousin‟s residence in the same city as the government registry office where the deed was lodged. Under these circumstances, notice would have been pointless. At the same time, a continuance was unwarranted since the IJ afforded Dolley an opportunity during the hearing to explain why he was unable to produce the corroborative evidence. At that point, the IJ could properly weigh, in lieu of the absent corroborative evidence, Dolley‟s explanation in deciding whether he had satisfied his burden of proof. 7 explanations for persecution are irrelevant where the proximate motivation for

mistreatment of an applicant is not a protected ground.” Ndayshimiye v. Att’y Gen., 557

F.3d 124, 130, 132 (3d Cir. 2009) (citation omitted). In turn, we have opined that

“retaliation in response to a personal dispute” does not present a sufficient nexus between

persecution and one of the protected grounds. Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d

Cir. 2003).

Here, the apparent “proximate motivation” for Dolley‟s mistreatment was his

destruction of Jalla‟s construction on the disputed land. The record provides that while

Jalla had never threatened Dolley in the five months prior to Dolley‟s destruction of

Jalla‟s structure, only after the destruction did Jalla and a group of Manos call Dolley a

“criminal,” and chase and assault him. This retaliation supports the IJ‟s reasoning that

the asserted mistreatment was “fundamentally a personal dispute,” and Dolley‟s

Mandingo status was merely “an incidental factor in [his] persecution.” Ndayshimiye,

557 F.3d at 130, 132. Accordingly, substantial evidence does not “compel” a contrary

conclusion to the one reached by the IJ. See Kibinda, 477 F.3d at 119.2

Moreover, for mistreatment perpetrated by private actors to rise to the level of

persecution, “the petitioner has the burden to prove that it was conducted by forces the

2 Dolley‟s secondary argument that his loss of income from the disputed land constituted economic persecution likewise fails. We have previously held that “the deliberate imposition of severe economic disadvantage which threatens a petitioner‟s life or freedom” may be sufficient to constitute persecution. Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005). Yet Dolley‟s tenuous – and potentially temporary – loss of income from the land has not deprived him of “liberty, food, housing, employment, and other essentials of life.” Id. Additionally, the Liberian government is attempting to address his loss through a legal process by way of the Land Commission. As such, Dolley‟s situation does not reflect the “severe economic disadvantage” necessary for a finding of economic persecution. 8 government is unable or unwilling to control.” Valdiviezo-Galdamez, 502 F.3d at 288

(citation & quotations omitted). Because Dolley does not allege that the Liberian

government is persecuting him, he had to demonstrate that the government was unable or

unwilling to protect or assist him in recovering the disputed property from a small group

of Mano. As the IJ determined, Dolley failed to make such a showing in light of the

efforts undertaken by the Liberian government to remedy the ethnic disputes between the

various groups, and the specific involvement of the Land Commission and the local

Mano magistrate in adjudicating Dolley‟s claim. (App‟x 16, 472-73, 479); see also

Khilan v. Holder, 557 F.3d 583, 586 (8th Cir. 2009) (“[E]vidence of general problems of

ineffectiveness and corruption do not alone require a finding that the government is

„unable or unwilling‟ where the evidence specific to the petitioner indicates the contrary

to be true.”). Moreover, Dolley does not indicate that he actually reported any imminent

threats or violence to the police, making it difficult for him to contend that the

government was unable or unwilling to prevent persecution. See, e.g., Aliyev v. Mukasey,

549 F.3d 111, 119 (2d Cir. 2008). As a result, we discern no error in the IJ‟s conclusion

on this issue.

Finally, Dolley‟s claim of a well-founded fear of future persecution is significantly

undermined by the fact that an applicant‟s fear of persecution must be country-wide, and,

as the IJ found, Dolley failed to establish that he could not reasonably relocate to another

part of Liberia unmolested. The governing regulation provides that “[a]n applicant does

not have a well-founded fear of persecution if the applicant could avoid persecution by

relocating to another part of the applicant's country of nationality . . . if under all the

9 circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. §

208.13(b)(2)(ii). The record supports the IJ‟s finding that Dolley encountered no threats

and was entirely unharmed in the Liberian capital city of Monrovia until he came across

Jalla at a market in reference to the particular land dispute. Dolley failed to press this

issue in his briefing before us, merely arguing that the government bore the burden since

he had established past persecution. Because the IJ reasonably concluded that Dolley‟s

experience did not constitute past persecution, he retained the burden of demonstrating a

well-founded fear of persecution throughout Liberia, which he failed to satisfy.

Accordingly, Dolley‟s asylum claims cannot succeed.

We will also affirm the IJ‟s denial of withholding of removal and CAT protection,

but on procedural, rather than substantive, grounds. Section 242(a)(1) of the Immigration

and Nationality Act provides us with jurisdiction to review final orders of removal, but

“limits our jurisdiction to cases where a petitioner „has exhausted all administrative

remedies available as of right . . . .‟” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008)

(quoting 8 U.S.C. § 1252(a)(1), (d)(1)). “This statutory requirement [is] intended to

ensure that the BIA has had a full opportunity to consider a claim before it is submitted to

a federal court, [and] requires that a petitioner „raise and exhaust his . . . remedies as to

each claim or ground for relief if he . . . is to preserve the right of judicial review of that

claim.‟” Kibinda, 477 F.3d 113, 120 n.8 (quoting Abdulrahman v. Ashcroft, 330 F.3d

587, 594-95 (3d Cir. 2003)).

Here, the record confirms that Dolley did not contest the IJ‟s denial of his petition

for withholding of removal and for CAT protection in his appeal to the BIA, thereby

10 failing to raise “each claim or ground for relief” for which he presently seeks our review.

Id.; (see also App‟x 51-80.) This “failure to present an issue to the BIA constituted a

failure to exhaust, thus depriving us of jurisdiction to consider it.” Lin, 543 F.3d at 126.

Curiously, both parties contend that the BIA‟s affirmance of the IJ‟s decision

without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4), satisfied the exhaustion requirement

of § 242(d)(1) because, as we noted in Lin, “[w]here the BIA has issued a decision

considering the merits of an issue, even sua sponte, [exhaustion requirements] have been

fulfilled.”3 543 F.3d at 125. Our holding in Lin, however, is entirely distinguishable

from the instant procedural posture. There, we were persuaded by the Tenth Circuit‟s

reasoning that exhaustion may be satisfied despite a petitioner‟s failure to raise an issue

before the BIA where the Board “„issues a full explanatory opinion or a discernible

substantive discussion on the merits over matters not presented by the alien,‟” and

conducts “an independent review of the record and [ ] exercise[s] its own discretion in

determining its agreement with the reasoning and result of the IJ.” Id. at 125-26 (quoting

Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)). However, we explicitly

differentiated cases in which “„the BIA summarily affirms the IJ decision in toto without

3 8 C.F.R. § 1003.1(e)(4)(i) provides: The Board member to whom a case is assigned shall affirm the decision of the Service or the immigration judge, without opinion, if the Board member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that (A) The issues on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of precedent to a novel factual situation; or (B) The factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case. 11 further analysis of the issue,‟” or “issue[s] a one-member streamlined opinion under 8

C.F.R. § 1003.1(e)(4).” Id. (quoting Sidabutar, 503 F.3d at 1122 (agreeing to jurisdiction

because the “BIA sufficiently considered the applicant‟s two unraised claims in its final

order” after a thorough explanatory opinion, but emphasizing that this exhaustion

principle should be “construed narrowly” and would not apply to a simple affirmance

without opinion under 8 C.F.R. § 1003.1(e)(4))). As such, although we did not specify

“the precise limitations” of this exhaustion principle, our holding in Lin is a limited one.

Here, unlike Lin, the BIA affirmed without opinion under 8 C.F.R. § 1003.1,

offering no analysis on the merits, and did not address “the issue[s] independently from

the IJ [to] ensure [ ] that the record is adequate for our review.” 543 F.3d at 125 (citing

Weinberger v. Salfi., 422 U.S. 749, 765 (1975)). Accordingly, we lack jurisdiction to

consider Dolley‟s unexhausted withholding of removal and CAT claims.

III.

For the foregoing reasons, we will deny Dolley‟s Petition for Review.