Mor Sene v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3278
__________________
MOR SENE, Petitioner
v.
JOHN ASHCROFT, Attorney General of
the United States, Respondent
_______________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(INS No. A78-416-310)
_________________________________________
Argued: October 16, 2002
Before: BECKER, Chief Judge, ROTH and ROSENN
Circuit Judges.
(Filed )
CATHOLIC LEGAL IMMIGRATION
NETWORK, INC.
RAN Z. SCHIJANOVICH (ARGUED)
976 Broad Street
Newark, NJ 07102
Counsel for Petitioner
ROBERT D. McCALLUM, JR.
Assistant Attorney General
ALLEN W. HAUSMAN
Senior Litigation Counsel

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Office of Immigration Litigation
MICHELE Y. F. SARKO
JULIA K. DOIG (ARGUED)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Stn.
Washington, D.C. 20044
Counsel for Respondent
__________________________
OPINION OF THE COURT
___________________________
BECKER, Chief Judge.
Mor Sene (“Sene”), a Senegalese asylum-seeker, has petitioned for review of a
decision of the Board of Immigration Appeals (“BIA”), denying his application for asylum,
withholding of removal, and for relief under the Convention Against Torture (“CAT”). The
source of Sene’s asylum claim lies in an ongoing conflict in the southern region of Senegal
known as the Casamance, from which Sene hails. The Senegalese government is engaged
there in sporadic armed conflict with the Movement of Democratic Forces in the
Casamance (“MFDC”), a rebel group seeking the independence of the Casamance.
Sene’s challenge essentially is based on the notion that he has been caught in the
middle of the conflict between the MFDC and the government. On the one hand, he
contends that if returned to Senegal he will face persecution by the MFDC, which he claims
tortured him in the past for refusing to join their ranks. On the other hand, he maintains that

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the Senegalese government believes that he has aided the MFDC and that the government
will persecute him if he is returned to Senegal.
We conclude that Sene fails on the first claim -- persecution by the MFDC --
because he cannot show that the MFDC tortured him “on account of” his “political
opinion.” See 8 U.S.C. § 1158(a) (giving the Attorney General the discretion to grant
asylum to “refugees,” which are defined by 8 U.S.C. § 1101(a)(42)(A) as those persons
who are unwilling or unable to return to their country of origin “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”). Even if Sene could demonstrate that he was
persecuted by the MFDC on account of his political opinion, he fails on this claim because
he could relocate to other regions of Senegal where the MFDC holds no sway. See 8
C.F.R. § 208.13(b)(1)(i)(B) (denying asylum when relocation is reasonable). With
respect to the second claim -- persecution by the Senegalese government -- Sene’s
credibility was called into question by the BIA because his testimony conflicted with
certain information contained in his passport and national identity card. Sene submits that
the BIA did not consider his explanations for the discrepancies when he was denied relief.
Although we decline to grant relief to Sene outright both on the merits and in light of the
Supreme Court’s recent decision in INS v. Ventura, 123 S. Ct. 353 (2002), we will grant
the motion brought by the INS requesting that we vacate the decision of the BIA with
respect to Sene’s claim of persecution by the government and remand so that the credibility
issues can be reached in further proceedings.

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I.
Sene is a citizen of Senegal and a member of its Wolof ethnic majority. Although
born in the capital city of Dakar, Sene moved to the Casamance as a boy, where he worked
with his family as a farmer. As noted above, the Casamance region is home to the MFDC,
an armed opposition group which demands the independence of Casamance from the rest of
the country. The Senegalese military has been embroiled in a conflict with the MFDC,
which occasionally erupts in violence, for more than 20 years. According to Sene, the
following events transpired commencing in October of 1997.
At that time, Sene learned that the MFDC was about to attack his village, Bignona,
and he fled to the nearby forest where he hid to avoid being captured by the rebels.
Although Sene was able to avoid being captured this time, he returned home to find that the
MFDC had killed his younger brother during the attack. Sene was not so lucky when the
MFDC again attacked Bignona in November of 1999. He claims that the MFDC kidnaped
him and dragged him to the forest where they tied him to a tree, beat him violently, and
questioned him about the Senegalese military. The rebels wanted Sene to join them, and
upon his refusal, they tortured him. Sene claims that they beat him, cut his leg with a razor,
removed two of his toe nails and stabbed him in the chest and leg. The MFDC kept Sene
hostage in the forest for two days without food or clean water. When they were done, the
rebels left him there, believing that he was close to death. A local farmer happened upon
Sene in the forest and brought him back to Bignona where he lay in bed for a month
recovering from his injuries.

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In March 2000, the MFDC returned to Bignona a third time, but Sene was able to
flee to a soccer stadium controlled by the military of the Senegalese government where
many residents of Casamance took refuge. Sene remained in the stadium for four months,
under the watchful eye of the military. Although forbidden to do so by the military, Sene
left the stadium to locate his mother and sister. Returning to Bignona, he found that the
MFDC had burned down most of the homes in the village, but he could not locate his
mother or sister. On his way back to the stadium, Sene encountered a friend who told him
that the military knew that he had left the stadium and that they were looking for him
because they believed he had left to give information to the MFDC. A guard at the stadium
confirmed the account, telling Sene that the military thought he was giving information to
the MFDC, and that the military would kill him if they found him. Sene fled to the home of
a friend of his deceased father in Dakar, where he found his mother and sister staying.
Concerned that the military would kill him because they suspected he was supplying
information to the MFDC, Sene decided to leave the country. The family friend in Dakar
helped Sene obtain a false passport so that he could leave the country without alerting the
Senegalese government. His mother raised enough money for a plane ticket to the United
States. Sene traveled to Burkina Faso and boarded a plane that eventually brought him to the
United States.
Sene arrived in the United States using a forged Guinean passport containing a false
U.S. visa. The Immigration and Naturalization Service (“INS”) detained Sene on suspicion
of carrying a forged passport and visa, at which time the officers learned Sene’s true

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identity when they discovered his real passport among his possessions. Sene’s passport, as
well as the identity card issued to him by the government of Senegal, listed Dakar as his
residence and stated that he was employed as a mason -- which contradicted Sene’s account
that he was a farmer from Casamance. The INS issued a notice to appear charging Sene
with being inadmissible and removable at the time of application for admission to the
United States. After removal proceedings were commenced, Sene filed applications for
asylum, withholding of removal, and protection against removal under the CAT.
Sene appeared before the Immigration Judge (“IJ”) pro se. Since Sene does not
speak English, the hearings were conducted through a Wolof translator. The IJ gave an oral
decision, about which the BIA noted in its written opinion that the IJ “concluded that
[Sene’s] testimony ‘on many occasions’ was not believable, and that he had not . . .
demonstrated past persecution in Senegal or a well-founded fear of future persecution. . . .
[T]he alleged treatment of [Sene] by the MFDC was not shown to have been related to his
political opinion and [there was] no credible evidence that the Senegalese military would
have any interest in [Sene].” [A15].
Sene -- now represented by counsel -- appealed this decision to the BIA, which
affirmed the findings of the IJ that Sene could not demonstrate that he was in danger of
persecution for his political opinions by either the MFDC or the government of Senegal.
The BIA found that the MFDC tortured Sene because of his refusal to join them and not
because of his political opinions. Moreover, the BIA found that even if he was persecuted
for his political opinion, the MFDC has “little influence in, and no control over, other parts

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of the country [other than the Casamance,]” [A16] and that Sene could have simply
relocated to another region of Senegal to avoid future persecution. As for Sene’s claim
that he is in danger of persecution by the Senegalese government, the BIA concluded that
Sene had “not shown that the government would have any interest in punishing him on
account of any of the grounds for asylum.” [Id.]. Finally, the BIA declined to grant relief to
Sene on the CAT claim, finding that Sene did not demonstrate that it was more likely than
not that he would be tortured if he returned to Senegal since “[t]he only interest the
government of Senegal may have in [Sene] is the clarification of his relationship with the
MFDC.” [Id. at 17].
Before this Court, the INS filed a motion requesting that we remand to the BIA for
further proceedings on the following: (1) Sene’s claim of a well-founded fear of
persecution on account of imputed political opinion by the government; (2) the
significance of the State Department Country Reports and other exhibits regarding country
conditions in Senegal contained in the record; (3) the letter from a family friend introduced
by Sene at his immigration hearing; and (4) a credibility determination regarding Sene’s
testimony. The motion panel provisionally denied INS’ motion and ordered briefing to
proceed on the merits.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) to review final orders of
removal. Factual determinations made by the BIA are reviewed to determine whether they
are supported by substantial evidence. Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.
1998). However, we must uphold the BIA’s findings of fact unless the evidence compels

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1Under 8 C.F.R. § 208.16(c)(2), an applicant for relief under the CAT must show
“that it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” While a showing of past torture may demonstrate that it is more
likely than not that future torture will occur, proof that Sene was tortured by the MFDC is
not sufficient for relief because the CAT defines torture as that which “is inflicted by or at
the instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. §§ 208.16(c)(3), 208.18(a)(1). Since Sene’s
strongest piece of evidence is his own testimony that he was told that the military was
looking for him, we conclude that the BIA’s determination that Sene has not met the
elevated “more likely than not” standard does not compel reversal.
8
otherwise. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 3 (1992) (holding that to
reverse the BIA, “we must find that the evidence not only supports that conclusion, but
compels it”). We summarily deny Sene’s request for relief under the CAT for the reasons
set forth in the margin,1 and now turn to his remaining claims.
II.
Sene urges us to conclude that the BIA erred when it held that he did not qualify for
protection as a refugee because he was not persecuted for his political opinion by the
MFDC. As we noted earlier, the Attorney General has the discretion to grant asylum only
to those applicants demonstrating “a well-founded fear of persecution on account of . . .
political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(a). Sene’s first contention is that his
refusal to join the MFDC is ipso facto an expression of his political opinion. However,
this argument is clearly foreclosed by INS v. Elias-Zacarias, where the Supreme Court
held that “[e]ven a person who supports a guerilla movement might resist recruitment for a
variety of reasons -- fear of combat, a desire to remain with one’s family and friends, a
desire to earn a better living in civilian life, to mention only a few.” 502 U.S. at 482.

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Moreover, the Court in that case declined to adopt the contention that “not taking sides with
any political faction is itself the affirmative expression of a political opinion.” Id. at 483.
In Elias-Zacarias, the Court concluded that the applicant, a Guatemalan citizen, had
not established that the record compelled the conclusion that he had a well-founded fear of
persecution by the guerillas on account of his political opinion where he refused to join the
guerillas because they “are against the government and he was afraid that the government
would retaliate against him and his family if he did join the guerillas.” Id. at 480 (internal
quotations omitted). Similarly, Sene’s testimony that he would rather die than join the
rebels [A107] does not establish that his refusal to join was motivated by his political
opinion. Although Sene now claims that we should remand the case -- if we do not grant his
petition outright -- for further consideration of his explanation for why his passport and
identity card state that he is a mason from Dakar, while he testified that he is a farmer from
the Casamance, we conclude that even if his explanation would make his testimony more
believable to the BIA, Sene cannot set forth a claim for persecution by the MFDC on
account of his political opinion even assuming his testimony is credible.
In the alternative, Sene contends that he was persecuted on account of his political
opinion because the MFDC imputed a political opinion to him when he refused to join
them; the imputed political opinion is that “the MFDC is not a group that he supports and
that he does not agree with their goals and tactics.” [Blue Br. at 18]. At first glance, the
claim that an asylum-seeker could succeed by showing that he was persecuted on account
of an imputed political opinion seems to be in conflict with Elias-Zacarias. In Elias-

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2 See Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001) (acknowledging
that proof of an imputed political opinion would have qualified as persecution “on account”
of political opinion under the INA); Morales v. INS, 208 F.3d 323, 331 (1st Cir. 2000)
(“There is no doubt that asylum can be granted if the applicant has been persecuted or has a
well-founded fear of persecution because he is erroneously thought to hold a particular
political opinion.”); Lwin v. INS, 144 F.3d 505, 509 (7th Cir. 1998) (“One way that an
applicant can establish ‘political opinion’ under the INA is to show an imputed political
opinion.”); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997) (“If the persecutor
attributed a political opinion to the victim, and acted upon the attribution, this imputed view
becomes the applicant’s political opinion and required under the Act.”); Desir v. Ilchert,
840 F.2d 723, 729 (9th Cir. 1988) (“[W]hether the political opinion is actually held or
implied makes little difference where the alien’s life is equally at risk.”); Cruz-Diaz v.
INS, 86 F.3d 330, 332 (4th Cir. 1996) (denying applicant’s petition for review based on the
finding that “[t]he evidence does not compel the conclusion that [the applicant] will be
subjected to persecution or other harm based on actual or imputed opinion”).
10
Zacarias, the Supreme Court held that the “ordinary meaning of the phrase ‘persecution on
account of . . . political opinion’ . . . is persecution on account of the victim’s political
opinion.” 502 U.S. at 482. However, this language in Elias-Zacarias was made in
reference to the holding that “the mere existence of a generalized ‘political’ motive
underlying the guerillas’ forced recruitment is inadequate to establish . . . persecution on
account of political opinion.” Id. This apparently does not foreclose the concept of
persecution on account of a specific imputed political opinion, and in Balasubramanrim v.
INS, this Court held that “persecution may be on account of a political opinion the applicant
actually holds or on account of one the foreign government has imputed to him.” 143 F.3d
157, 165 n.10 (3d Cir. 1998). Moreover, other Courts of Appeals have endorsed the
concept of persecution on account of imputed political opinion, as set forth in the margin.2
Under these precedents, an asylum-seeker can make a claim based on the fact that

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his persecutor has imputed a particular political opinion to him. But in the case at bar, Sene
has not shown that the MFDC imputed any political opinion to him. We reiterate that there
are any number of reasons, many of which are not based on political opinion, that might
motivate the refusal to join a rebel group. See discussion supra. The MFDC could have
believed that Sene refused to join their ranks because of one of those non-political reasons.
We conclude that since Elias-Zacarias mandates that refusing to join a rebel group is not
itself an expression of political opinion, it also forecloses the argument that the rebel
group imputed a political opinion to the asylum-seeker based only upon his refusal to join
them. Sene produced no evidence, other than his own refusal, that the MFDC imputed a
political opinion to him.
At all events, even if we assume arguendo that Sene was persecuted on account of
his political opinion, this claim still fails, since he could simply relocate within Senegal to
avoid future persecution by the MFDC. Under 8 C.F.R. § 208.13(b)(1)(i)(B), the finding of
past persecution will show a well-founded fear of future persecution unless “[t]he applicant
could avoid future persecution by relocating to another part of the applicant’s country of
nationality . . . and under all the circumstances, it would be reasonable to expect the
applicant to do so.” The BIA found that “[t]he MFDC apparently has little influence in, and
no control, over other parts of the country.” [A16]. This conclusion was bolstered by the
1999 State Department Country Reports on Human Rights Practices for Senegal (“Country
Reports”) which noted that “[s]poradic fighting continued in the Casamance area in the
southern part of the country.” [A203]. From this, the BIA concluded that Sene could simply

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relocate to any area of Senegal other than the Casamance in order to avoid future
persecution by the MFDC. Importantly, the BIA found that it would be reasonable to expect
Sene to relocate since he is a member of the Wolof ethnic majority which Sene testified
“are all over in Senegal.” [A118].
Finally, Sene appears to have connections in the capital city of Dakar that would
make it feasible for him to relocate there. Sene testified that his mother and sister have
already relocated to Dakar to live with a family friend. [A114.] Sene was also born in
Dakar, although he later moved to the Casamance with his family. [A94]. For these reasons,
we also conclude that the BIA did not err when it denied relief to Sene based on the fact
that he could avoid persecution by the MFDC by relocating within Senegal and that it would
be reasonable to expect him to do so.
III.
Sene also contends that we should grant relief to him on the claim that he has shown
a well-founded fear of persecution by the Senegalese government on account of a political
opinion that the government has imputed to him. He bases this claim on the fact that he was
told that the government believed he left the military-controlled stadium to give
information to the MFDC. Sene submits that the BIA did not grant him asylum on this
claim because it did not believe that the government was looking for him or that the
government would persecute him. He maintains that the BIA might have found his
testimony more credible if it had fully considered the explanations for certain
discrepancies between his testimony and the information contained in his passport and

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identity card.
Sene’s passport and identity card listed his occupation as a mason and represented
that he was from Dakar, which was in conflict with his testimony that he was a farmer from
the Casamance. Sene explains that he gave his residence as Dakar because “it was better to
list his address as that of his father’s friend in Dakar because if stopped by authorities and
asked to show his documents, it could be dangerous for him to be listed as living in the
Casamance area.” [Blue Br. at 16]. Moreover, Sene claims that he listed his occupation as a
mason instead of a farmer because “it would be easier for him to find employment in
construction” and he “wanted to start working in construction.” [Id.]
The BIA’s opinion supports Sene’s contention that the IJ did not believe much of his
testimony, noting that “[w]hile the [IJ] did not make a specific credibility finding in her
decision, she did call into question some aspects of [Sene’s] claims, such as his alleged
occupation as a farmer and his residence in the Casamance region.” [A15]. Sene contends
that the BIA simply adopted the credibility determination of the IJ and did not perform a de
novo review. The BIA did not explain why it denied relief to Sene on this claim, noting
simply that “[t]o the extent that [Sene] is seeking asylum and withholding of removal based
on a fear or persecution by the government of Senegal, we conclude that he has not shown
that the government would have any interest in punishing him on account of any of the
grounds for asylum.” [A16].
Sene urges us to consider his explanations for the discrepancies and to grant him

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3 Even if we could grant Sene’s application for asylum outright, the INS maintains
that we do not have enough information upon which to base that decision. Sene submitted
new evidence to this Court: a psychological report documenting his Post Traumatic Stress
Disorder as Appendix C; and a doctor’s examination of his injuries noting they are
consistent with his testimony about the torture that took place at the hands of the MFDC as
Appendix D. However, the INS correctly observes that we cannot consider this
information. See 8 U.S.C. § 1252(b)(4)(A) (noting that the Court of Appeals “shall decide
the petition only on the administrative record on which the order of removal is based”);
Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n.15 (5th Cir. 2001) (“It is a bedrock principal
of judicial review that a court reviewing an agency decision should not go outside the
administrative record.”(citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44
(1985)). Since Sene did not file a motion to reopen before the BIA to have the BIA first
review the new evidence, he cannot present this evidence for the first time here. 8 C.F.R.
§§ 3.2(a) and (c).
4As noted above, the motion was provisionally denied by a motions panel so that the
parties could brief the issue on the merits. But it remains open before the merits panel, as
the INS declined to withdraw the motion, following a query posed at oral arguments.
14
asylum outright if we find his testimony to be credible in light of the explanations.3
However, the Supreme Court recently held in INS v. Ventura, that the Court of Appeals
should have remanded to the BIA instead of deciding an issue de novo that the BIA had
failed to consider. 123 S.Ct. 353, 354 (2002). Likewise, if the BIA did not consider Sene’s
explanations for the discrepancies, as Sene himself alleges, we are constrained to remand.
Sene also requests that we remand to the IJ so that Sene will be able to fully explain
the discrepancies before the IJ; Sene was not represented by counsel when he was before
the IJ initially, and he maintains that the explanations contained in his testimony are not
complete. The INS, on the other hand, requested in an earlier motion that we remand to the
BIA for further proceedings.4 In Abdulai v. Ashcroft, we held that we review only the
decision of the BIA and not that of the IJ in most cases. 239 F.3d 542, 548-49 (3d Cir.

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5The letter reads:
I was really happy to learn of your arrival in the United States of America . . .
. Allah is great because he saved you being that all we know about the problem you
encountering [sic] in your region of Casamance precisely in the village of Binjorna
[sic] really the situation is becoming worse with the same rebels, MFDC. They are
killing the population. They arresting [sic] the population to join them in their
group. . . . The militaries [sic] came to your house and they messed up your house
and they have arrested my husband, your father’s friend last month because of your
problem and you have really not, you’ve never given any information about the
rebels. [A132-133].
15
2001). Unless the BIA expressly adopted or deferred to the IJ’s opinion, we review only the
decision of the BIA. Id. Although Sene contends that the BIA effectively adopted the IJ’s
decision, since the BIA did not expressly do so, we review only the BIA’s decision and we
can remand only to the BIA. Since the BIA may have denied relief to Sene because it
questioned the credibility of his testimony, and granting the INS’ motion, we will vacate the
decision of the BIA and remand for further proceedings.
Among the things that the BIA might consider on remand are the following: (1) the
significance of the State Department Country Reports and other exhibits regarding country
conditions in Senegal contained in the record; (2) the letter from a family friend about the
atrocities committed by the MFDC introduced by Sene at his immigration hearing and
translated for the record by the interpreter5; (3)whether the BIA took this evidence into
consideration in making any credibility findings regarding Sene’s testimony; and (4) Sene’s
explanation of why his passport and identity card state that he is a mason from Dakar, which
contradicts his testimony that he is a farmer from Casamance.

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For the foregoing reasons, we will deny Sene’s petition for review on the claim that
he has demonstrated a well-founded fear of persecution by the MFDC, but we will grant the
agency's motion to remand to the BIA for further proceedings on the claim that Sene has
demonstrated a well-founded fear of persecution by the government of Senegal.

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___________________________
TO THE CLERK:
Please file the foregoing Opinion.
_______________________
Chief Judge

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MEMORANDUM
DATE: December 11, 2002
TO: Marcy Waldron
Clerk of Court
FROM: Judge Becker
RE: Sene v. Ashcroft No. 01-3278
Argued: October 16, 2002
Please file the attached Not Precedential Opinion which has been cleared in
accordance with our procedures. The signed original will be delivered to your office.
cc: Judge Roth
Judge Rosenn

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