Samassa v. Holder

442 F. App'x 228
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 18, 2011
DocketNo. 09-4148
StatusPublished

This text of 442 F. App'x 228 (Samassa v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samassa v. Holder, 442 F. App'x 228 (7th Cir. 2011).

Opinion

ORDER

Mohamed Samassa, a national of Mauritania, petitions for review of an order upholding the denial of his application for asylum and related relief. We deny the petition.

Samassa entered the United States illegally in 2000 and applied for asylum, withholding of removal, and protection under the Convention Against Torture. As relevant here, he claimed that the Mauritanian government of President Maaouya Ould Sid’Ahmed Taya had persecuted him on the basis of his race or nationality. At a hearing before an Immigration Judge in March 2008, Samassa testified that he fell victim to the campaign of mass detention, forced labor, and expulsion that the Taya regime waged against tens of thousands of [229]*229ethnic Afro-Mauritanians in the late 1980s and early 1990s. Historically, ethnic White Moors have controlled the Mauritanian government and economy, often to the detriment of Afro-Mauritanian groups like the Soninke tribe to which Samassa belongs (and to the disadvantage of another group called “Black Moors” or “Hara-tines”).

In 1992, Samassa testified, soldiers entered his home, ripped up his family’s identification documents, and accused the family of being noncitizens. They beat Samassa and his family, then trucked them to a prison with hot, crowded, and windowless cells that doubled as toilet areas. For two weeks, Samassa continued, he ate meager rations and was forced to make bricks in eleven-hour shifts. During this detention, soldiers beat him and other prisoners repeatedly, and he heard rumors that some prisoners died in detention. Eventually the soldiers expelled Samassa and his family across a river into neighboring Senegal, where his father died three months later from high blood pressure and injuries that Samassa attributed to the soldiers’ actions. Senegal’s government did not offer Samassa’s family legal status.

The IJ supplemented the record with country reports more recent than those included with Samassa’s application, and the Department of Homeland Security submitted further U.S. government reports without objection from Samassa’s counsel. The new evidence suggested that much had changed in Mauritania. In 2005 President Taya was overthrown in a bloodless coup, and the State Department Report notes that in 2007 Sidi Mohamed Ould Cheikh Abdallahi was elected president in a relatively free and fair race. The new government, although apparently still dominated by Moors, had improved its relations with Afro-Mauritanians and repatriated thousands of expelled citizens.

Still, the picture painted by the reports was far from rosy. Economic, social, and political discrimination against Afro-Mauritanians persisted; Afro-Mauritanians remained under-represented in government; and those who had been repatriated had trouble getting new jobs or recovering the property they left behind. Returnees also reported that they did not receive identity documents and thus could not vote or safely travel.

At his hearing before the IJ, Samassa also presented letters from family members recounting stories of discrimination and gesturing toward other, vaguer fears. His mother and sister, who were apparently back in Mauritania, wrote that “the country does not change,” and that his family dreaded famine and was unable to reacquire property confiscated in the 1990s; further, many returnees were “disappointed.” His sister also cautioned him against returning because “they -will hurt you.” Samassa testified without elaboration that his mother told him returnees had been “punished.” When asked on cross examination whether he knew what was happening in Mauritania today, he responded, “I don’t know nothing other than what my mom write [sic] in the letter.”

The IJ denied all forms of relief except voluntary departure. As relevant here, the IJ concluded that Samassa suffered past persecution on account of his race or nationality, but that the DHS had nevertheless rebutted the presumption of future persecution by demonstrating substantial changes in country conditions that negated the basis for his fear. Samassa appealed the IJ’s decision to the Board of Immigration Appeals, which upheld the IJ’s decision in a November 2009 order for substantially similar reasons. This petition for judicial review followed.

[230]*230We pause here to acknowledge — as the parties’ briefs do not — that by the time the Board issued its decision in November 2009, the elected government discussed in that decision had already been ousted in another coup in August 2008. See U.S. Dep’t of State, Bureau of Democracy, Human Rights, and Labor, “2009 Human Rights Report: Mauritania” (Mar. 11, 2010), http://www.state.gOv/g/drl/rls/hrrpt/ 2009/af/135965.htm. Then, in July 2009, still more than three months before the Board decided this case, the new junta held another election that was largely seen as free and fair. Id.; but see Freedom House, “Freedom in the World 2010— Mauritania” (2010), http://www. freedomhouse.org/template.efm?page= 22&year=2010&country=7874 (questioning credibility of election observers).

Despite this political turmoil, recent reports show that Afro-Mauritanians still face circumstances similar to those reflected in the administrative record. Indeed, the 2009 State Department report characterizes the repatriation program as successful, recognizes that the new Mauritanian government has publicly acknowledged the Taya regime’s role in persecution, and notes that the new government has begun compensating some victims. U.S. Dep’t of State, “2009 Human Rights Report: Mauritania”; see also Freedom House, “Freedom in the World 2010— Mauritania” (“The Aziz government continued Abdellahi’s initiative to facilitate the return of some 30,000 black Mauritanians who had been expelled to Senegal and Mali following communal violence in 1989. They have received housing assistance, but many faced difficulty recovering confiscated land.”) The 2010 report contains similar findings. With these developments in mind, we proceed to the merits.

Because the Board concluded that Sa-massa suffered race- or nationality-based persecution in the 1990s, the decisive issue is whether the DHS rebutted the presumption of future persecution that attaches when applicants demonstrate past persecution. See 8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1), 1208.16(b)(1); Pathmakanthan v. Holder, 612 F.3d 618, 624 (7th Cir.2010); Ingmantoro v. Mukasey, 550 F.3d 646, 649 (7th Cir.2008). In making its rebuttal, the DHS had the burden to prove by a preponderance of the evidence that fundamental changes in Mauritania negated the basis for Samassa’s fear. See 8 C.F.R. § 208.13(b)(l)(i)(A), (b)(l)(ii); Xiao v. Mukasey, 547 F.3d 712, 716 (7th Cir.2008). The Board concluded that the DHS carried its burden; Samassa challenges that conclusion in his petition. To prevail in this court, Samassa would need to demonstrate that the record compels a conclusion contrary to the Board’s. See 8 U.S.C. § 1252(b)(4); INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Alternatively, he could obtain a remand for further proceedings if the Board overlooked “key aspects” of the claim he presented. Kone v. Holder,

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442 F. App'x 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samassa-v-holder-ca7-2011.