Mohammed Dukureh v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10239
Non-Argument Calendar
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Agency No. A201-343-777
MOHAMMED DUKUREH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(April 23, 2021)
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Mohammed Dukureh, a native and citizen of the Gambia, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) affirming an
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Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). In
particular, he argues that he “was never given an interpreter at the border or during
[his] master hearing and . . . never understood what credible fear [was] and was not
able to properly defend [him]self in subsequent hearings.” As a result, he claims,
he was not “able to explain the persecution [he] suffered because [he] was not a
practicing Muslim.” The government, in turn, moves for summary denial of the
petition.
Summary denial is appropriate where the government’s position “is clearly
right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where . . . the [petition] is frivolous.” Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). In general, we review “the
decision of the BIA, except to the extent that it adopts the IJ’s decision or
expressly agrees with the IJ’s reasoning.” Garcia-Simisterra v. U.S. Att’y Gen.,
984 F.3d 977, 980 (11th Cir. 2020). Where the BIA adopts the IJ’s reasoning, we
will also review the IJ’s decision to that extent. See id. Here, the BIA expressly
adopted the IJ’s decision. Thus, we will review both decisions. See Garcia-
Simisterra, 984 F.3d at 980.
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On appeal from the BIA, we review legal questions de novo. Zhou Hua Zhu
v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013). We review factual
determinations under the substantial evidence test, which requires us to “view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). “We must affirm the BIA’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (quotation omitted). To reverse factual findings, we
must find that the record not only supports a different conclusion but also compels
it. Id. The BIA is not required to “address specifically each claim the petitioner
made or each piece of evidence the petitioner presented.” Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010) (quotation omitted). Further, the BIA is not
required to make findings on issues unnecessary to the decision it reaches. INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).
An applicant for asylum must meet the Immigration and Nationality Act’s
definition of a refugee. 8 U.S.C. § 1158(b)(1). That definition includes:
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country 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.
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8 U.S.C. § 1101(a)(42)(A). “To establish asylum eligibility, the petitioner must,
with specific and credible evidence, demonstrate (1) past persecution on account of
a statutorily listed factor, or (2) a ‘well-founded fear’ that the statutorily listed
factor will cause future persecution.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006).
“[P]ersecution is an extreme concept, requiring more than a few isolated
incidents of verbal harassment or intimidation, and . . . mere harassment does not
amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
Cir. 2005) (alteration adopted; quotation omitted) (concluding that evidence of the
bombing of the petitioner’s workplace, menacing telephone calls, and threats made
to the petitioner did not compel a finding of past persecution). In determining
whether a petitioner has suffered past persecution, the factfinder “must consider
the cumulative effects of the incidents.” Delgado v. U.S. Att’y Gen., 487 F.3d 855,
861 (11th Cir. 2007).
A well-founded fear of persecution may be established by showing (1) past
persecution, which creates a presumption of a “well-founded fear” of future
persecution; (2) a reasonable possibility of being singled out for persecution that
cannot be avoided by relocating within the subject country, if such relocation
would be reasonable; or (3) a pattern or practice in the subject country of
persecuting members of a group of which the petitioner is a part such that his fear
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of persecution is reasonable. 8 C.F.R § 1208.13(b)(1), (2), (3)(i). To establish
eligibility for asylum based on a well-founded fear of future persecution, the
petitioner must prove that he has a “subjectively genuine and objectively
reasonable” fear of persecution because of a protected ground. Silva v. U.S. Att’y
Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (quotation omitted). A petitioner’s
credible testimony generally establishes that his fear is “subjectively genuine.” De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008).
To establish eligibility for asylum, an applicant must show that he is unable
to avail himself of the protection of his home country. Lopez v. U.S. Att’y Gen.,
504 F.3d 1341, 1345 (11th Cir. 2007). If the asylum applicant alleges persecution
by a private actor, rather than by the government, failure to seek protection from
his home country is generally fatal to his claim. Id.; see Ayala, 605 F.3d at 950.
The failure to seek protection in the home country is excused, though, if the
applicant “convincingly demonstrates that [home-country] authorities would have
been unable or unwilling to protect” him, such that he could not rely on them.
Ayala, 605 F.3d at 950.
Here, substantial evidence supports the IJ’s finding that Dukureh failed to
establish his eligibility for asylum because he failed to allege discrimination based
on a protected ground, as his claim was based on individual disputes with private
actors, and because he failed to demonstrate that the government would be
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unwilling or unable to protect him from harm, as he failed to report any incident to
the police. See Silva, 448 F.3d at 1236.
The BIA also properly rejected Dukureh’s attempt on appeal to assert a new
ground for asylum, specifically his religion. Dukureh had the opportunity to
present this protected ground during his initial merits hearing and he did not. This
failure was not the fault of the IJ as the IJ properly advised Dukureh of his right to
apply for asylum or withholding, provided Dukureh with an asylum application,
and asked Dukureh open-ended questions during the merits hearing, giving
Dukureh the opportunity to assert religion as a ground for asylum. Moreover, even
if Dukureh had asserted this protected ground, he still failed to show that he
reported any incident to the police and, thus, could not show the police would be
unwilling or unable to protect him. See Lopez, 504 F.3d at 1345 (reasoning that a
failure to report harm by a private actor to police is “generally . . . fatal” to an
asylum claim); Ayala, 605 F.3d at 950. Lastly, the record shows that Dukureh was
provided an interpreter at six of his master calendar hearings and at his individual
calendar hearing. Thus, there is no substantial question as to the outcome of the
case, and the government’s position is clearly right as a matter of law. See
Groendyke, 406 F.2d at 1162.
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Accordingly, the government’s motion for summary denial is GRANTED
and the government’s motion to stay the briefing schedule is DENIED as moot.
All other pending motions are DENIED as moot.
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