Olakitan Eusebio v. John Ashcroft, Attorney General of the United States

361 F.3d 1088, 2004 U.S. App. LEXIS 5527, 2004 WL 583311
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 25, 2004
Docket02-4062
StatusPublished
Cited by78 cases

This text of 361 F.3d 1088 (Olakitan Eusebio v. John Ashcroft, Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olakitan Eusebio v. John Ashcroft, Attorney General of the United States, 361 F.3d 1088, 2004 U.S. App. LEXIS 5527, 2004 WL 583311 (8th Cir. 2004).

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Olakitan Eusebio petitions for review of an order of the Board of Immigration Appeals (BIA) upholding an immigration judge’s denial of Mr. Eusebio’s application for asylum. We affirm.

Mr. Eusebio is from Togo, where he worked as a high school science teacher. He was involved in various political activities critical of the regime of Gnassingbe Eyadema, who came to power in Togo after a military coup in 1967. Mr. Eusebio distributed leaflets and attended rallies. At two demonstrations, Mr. Eusebio was beaten by police when they dispersed the protesters. While breaking up another demonstration, the police chased Mr. Eusebio and some friends into a nearby house, where Mr. Eusebio and his friends locked themselves in a room while the police beat on the door for several minutes before leaving. Mr. Eusebio was returning from another anti-Eyadema political event held in the neighboring country of Benin, when he was detained by the military because he was wearing a T-shirt emblazoned with the face of Sylvanus Olympio, the leader whom Mr. Eyadema overthrew. Mr. Eusebio was released shortly thereafter when a family friend intervened on his behalf. In 1993, Mr. Eusebio and his family fled to Benin during the unrest that accompanied a failed coup by some military officers against Mr. Eyadema. When Mr. Eusebio returned, his home had been damaged and looted by the military. Some time later, after Mr. Eusebio gave a failing grade to Mr. Ey-adema’s son in one of his classes, the school principal changed Mr. Eusebio’s class schedule, and six weeks after the incident Mr. Eyadema’s son’s bodyguard threatened Mr. Eusebio that he “would regret” his decision to give the grade. Soon thereafter, the police arrested Mr. Eusebio and held him for forty-eight hours for anti-Eyadema statements in school. After being released, Mr. Eusebio received a subpoena to appear before a magistrate, whereupon he left Togo for the United States on a previously obtained student visa, entering our country in July, 1996. Mr. Eusebio’s visa has expired, and he concedes that he is deportable. In November of 1997, he filed an application for political asylum.

In order to prevail, political asylum seekers must show that they have a well-founded fear of future persecution on the basis of their political beliefs. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). If they can show that they suffered past political persecution, then a rebuttable presumption arises that they will suffer future persecution. See Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998). The Ninth Circuit has properly observed that “persecution is an extreme concept.” Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc). Low-level intimidation and harassment does not rise to the level of persecution. See Fisher v. INS, 291 F.3d 491, 497-98 (8th Cir.2002).

The IJ found that Mr. Eusebio did not have a well-founded fear of future political persecution. She first concluded that Mr. Eusebio had failed to show that he had been subject to past political persecution, because being chased or beaten by authorities while participating in rallies did not constitute persecution as a matter of law. Even Mr. Eusebio’s detention by the po[1091]*1091lice, the IJ held, was not prolonged or serious enough to “rise to the level of past persecution on account of [political beliefs].” As for his confrontation with the son of Mr. Eyadema and his body guard, the IJ found that the harassment was based on personal animosity rather than political beliefs.

The IJ pointed out that despite his longtime membership in the opposition party, Mr. Eusebio had no difficulty in obtaining a visa to leave the country. She also took note of a United States Department of State report indicating that during the previous year there had been no reported political disappearances in Togo; that the political party to which Mr. Eusebio belongs exists publieally in' Togo and garnered thirty percent of the vote in the last election; that additional opposition parties exist; and that while some leading activists have been jailed, many have not been, and opposition rallies are well attended and generally do not meet with official opposition from the government. The IJ concluded that, while political conditions in Togo may not be ideal, Mr. Eusebio, as a rank-and-file member of an opposition party, was not likely to suffer future political persecution. The BIA adopted the IJ’s opinion.

We review the BIA’s legal determinations de novo. Ikenokwalu-White v. INS, 316 F.3d 798, 804 (8th Cir.2003), giving due deference to the administrative agency’s interpretation of the statute, see United States v. Mead, 533 U.S. 218, 227, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). It is a well-established’ principle that minor beatings and brief detentions, even detentions lasting two or three days, do not amount to political persecution, even if government officials are motivated by political animus. See; e.g., Nelson v. INS, 232 F.3d 258, 264 (1st Cir.2000), Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995), Kapda v. INS, 944 F.2d 702, 704-05, 708 (10th Cir.1991). We cannot say that the abuse Mr. Eusebio suffered was more severe than that suffered by those whose claims the courts have routinely rejected. We thus affirm the BIA’s legal holding that the minor beatings and detentions to which Mr. Eusebio was subjected did not rise to the level of political persecution.

Mr. Eusebio’s claim that his house was destroyed in retaliation for his political beliefs is a good deal more serious. The IJ found, however, that the destruction of the house was incidental to general unrest accompanying a failed military conspiracy and not on account of Mr. Euse-bio’s political beliefs. After reviewing the record, we conclude that this factual determination survives review under the “substantial evidence” standard.

The substantial evidence standard that we employ when reviewing BIA factual -determinations is extremely deferential. See Menendez-Donis v. Ashcroft, 360 F.3d 915 (8th Cir.2004). As opposed to our review of judicial fact-finding, we are not at liberty to reverse even a decision that we find to be clearly erroneous. Id. at 918. Rather, we must affirm- the BIA’s factual decisions unless, after having reviewed the record as a whole, we determine that it would not be possible for a reasonable fact-finder to adopt the BIA’s position. Id. at 919. The requirement that we look at “the record as a whole” means that unlike what we do when we review jury verdicts, we may not simply disregard evidence contrary to the decision.

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Bluebook (online)
361 F.3d 1088, 2004 U.S. App. LEXIS 5527, 2004 WL 583311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olakitan-eusebio-v-john-ashcroft-attorney-general-of-the-united-states-ca8-2004.