Souleye Abdoulaye v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3023
SOULEYE ABDOULAYE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A095 869 507
ARGUED JANUARY 15, 2013 — DECIDED AUGUST 1, 2013
Before POSNER, WOOD, and TINDER, Circuit Judges.
WOOD, Circuit Judge. Souleye Abdoulaye petitions for
review of a decision of the Board of Immigration Appeals (BIA)
rejecting his petition for adjustment of status, asylum, and
withholding of removal under 8 U.S.C. § 1231 and the Conven-
tion Against Torture (CAT). The Board based its action on a
finding that Abdoulaye’s participation in a 2002 military

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2 No. 12-3023
mutiny in his home country of Niger amounted to “terrorist
activity” within the meaning of the Immigration and National-
ity Act (INA) and thus rendered him ineligible for any form of
relief. The Board also denied Abdoulaye’s request for deferral
of removal under the CAT, because he failed to show that it
was more likely than not he would be tortured if returned to
Niger, and Abdoulaye challenges that conclusion. Because we
conclude that the Board’s decisions on both points were
supported by substantial evidence, we deny the petition for
review.
I
A
Abdoulaye is a native and citizen of Niger who entered the
United States on a nonimmigrant visa on August 1, 2002.
Several months after his arrival, Abdoulaye (with the assis-
tance of counsel) filed an application for asylum, withholding
of removal, and protection under the CAT. In a written
statement accompanying that application, Abdoulaye stated
that he fled Niger because he feared “being sentenced to death
or killed due to [his] planning of a military mutiny” that was
planned and executed in late July and early August of 2002.
Abdoulaye explained that he was a corporal in the Nigerien
military and a supporter of the Rassemblement Démocratique
pour le Progrès (RDP), a left-wing political party loyal to former
President Ibrahim Baré Maïnassara. Following Baré’s death in
a 1999 coup, Abdoulaye and other RDP supporters in the
military were transferred to the remote town of Diffa, appar-
ently as punishment for their loyalty to the ousted Baré.

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No. 12-3023 3
In July 2002, RDP-affiliated soldiers in Diffa hatched a plot
to mutiny in order to protest low wages and poor conditions
and to demand reform. The plot included plans to seize the
regional governor of Diffa and several other officials “to
demand our rights for better living conditions.” At multiple
points in his asylum application, Abdoulaye identified himself
as an organizer of the mutiny, stating (among other things): “I
was one of the organizers of this mutiny,” “I ordered others to
carry out the actions of this mutiny,” and “I participated in the
writing of a statement that was sent to the government with
our demands which all the organizers signed.” Abdoulaye
further noted that in the weeks leading up to the mutiny he
obtained two visas—one for Belgium and the other for the
United States—in anticipation of needing to flee Niger in its
wake.
The mutiny began on July 31. Several hundred soldiers in
Diffa rose up, seized the regional governor and six other
officials, and took over the town, erecting barricades and
imposing a curfew on residents. According to news reports, the
mutineers demanded five months’ back pay, the dismissal of
the military’s chief of staff, and a meeting with the prime
minister. The mutiny was suppressed several days later when,
following a brief skirmish in which two people were killed,
government troops retook the town.
Abdoulaye was no longer in Niger when the mutiny took
place. In his statement, he reported that he received word on
July 25 that the government had plans to arrest the mutiny’s
organizers, and based on that warning, he and six other
organizers fled to Nigeria. While several of his co-organizers
chose to seek asylum in Belgium, Abdoulaye made his way to

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4 No. 12-3023
the United States, arriving in New York at the beginning of
August. He fears that if he is returned to Niger he would be
arrested and either held without trial, sentenced to death by a
military tribunal, or perhaps simply killed.
B
Abdoulaye attended an asylum interview in December
2002; in May 2007, the asylum officer referred his case to an
Immigration Judge (IJ). (The record does not reveal the reason
for the five-year delay.) After several continuances, the hearing
on the merits of Abdoulaye’s application commenced on
February 5, 2009, by which time Abdoulaye had added an
application for adjustment of status based on his marriage to
a U.S. citizen. The hearing quickly focused on Abdoulaye’s role
in the 2002 Diffa mutiny and specifically on whether his actions
amounted to “terrorist activity” as that term is defined by 8
U.S.C. § 1182(a)(3)(B). When it became clear that Abdoulaye’s
counsel was not prepared to address this issue, the IJ continued
the hearing until November 12.
At both the February and November hearings, Abdoulaye
insisted that his role in the mutiny was very minor. He
emphasized that he was merely a corporal and thus not in a
position to lead or give orders. He claimed that he intended
only to participate in the mutiny, just as hundreds of his fellow
soldiers had done. He denied having any significant role in
planning the mutiny and stated that he was following orders
from his superiors. Abdoulaye further objected to the charac-
terization of the mutiny as a violent uprising, arguing that it
was more akin to a peaceful protest. He maintained that he and
his fellow mutineers did not even have weapons. He also

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No. 12-3023 5
denied that the governor or others had been taken hostage;
rather, as he understood it, the soldiers had done no more than
to speak to the governor. When presented with news reports
that gave a contrary account of the mutiny, Abdoulaye
suggested the reports were inaccurate and pointed out that, in
any event, he had fled Niger before the actual mutiny.
Abdoulaye additionally disputed the accuracy of a Nigerien
government document (even though he had submitted it) that
listed him as one of six organizers of the mutiny. He suggested
that the document listed him as an organizer only because the
government did not know his whereabouts.
Abdoulaye explained the discrepancies between his
testimony to the IJ and the statements made in his original
asylum application as the product of mistakes made in
translating his written statement from French into English. He
asserted that he was only about 30% proficient in French,
suggesting that this too could account for inaccuracies in his
asylum application. He made the latter argument notwith-
standing the fact that he had consistently listed French as his
native language and relied on a French interpreter throughout
his immigration proceedings up until his final appearance
before the IJ in November 2009.
After considering the evidence, the IJ concluded that
Abdoulaye’s role in the mutiny fell within the statutory
definition of “engag[ing] in a terrorist activity.” Section
1182(a)(3)(B)(iii)(II) defines terrorist activity to include the
following:
seizing or detaining, and threatening to kill, injure,
or continue to detain, another individual in order to

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6 No. 12-3023
compel a third person (including a governmental
organization) to do or abstain from doing any act as
an explicit or implicit condition for the release of the
individual seized or detained.
The IJ observed that the Diffa mutineers’ seizure of the
regional governor in order to demand changes in government
policy fell squarely within this definition, and although
Abdoulaye was not present when the seizure took place, the IJ
found that he was involved in planning the mutiny. (The
statute defines “engag[ing]” in terrorist activity to include
p r e p a r ing and planning a t er r o r ist act iv it y.
§ 1182(a)(3)(B)(iv)(II).) The IJ rejected Abdoulaye’s character-
ization of the mutiny as a non-violent protest involving
nothing more than a “conversation” with the governor;
Abdoulaye’s version was not supported by any evidence
beyond his own testimony, and news reports of the mutiny
from the BBC and the United Nations Office for the Coordina-
tion of Humanitarian Affairs directly contradicted Abdoulaye’s
depiction of events. The IJ also rejected Abdoulaye’s disavowal
of his role as a planner of the mutiny. The judge commented
that even if he accepted that Abdoulaye’s asylum application
overstated his role, Abdoulaye’s own testimony demonstrated
that he had been involved with the mutiny at the planning
stages. Other evidence—including Abdoulaye’s flight from
Niger on the eve of the mutiny and the government document
identifying Abdoulaye as an organizer—corroborated the fact
that his involvement was non-trivial. All of this added up, in
the IJ’s view, to the conclusion that Abdoulaye had provided
material support for terrorism, as described in Section

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No. 12-3023 7
1182(a)(3)(B)(iv)(VI). This served as an alternative basis for
Abdoulaye’s inadmissibility.
Although the terrorism finding rendered Abdoulaye
ineligible for adjustment of status, asylum, and withholding of
removal under both 8 U.S.C. § 1231 and the CAT, he remained
eligible for deferral of removal under the CAT. The IJ granted
this relief after concluding that Abdoulaye had established that
he would “more likely than not” be subjected to torture if
forced to return to Niger. The IJ based this conclusion on
Abdoulaye’s expressed fear of imprisonment and torture, as
well as on U.S. State Department reports indicating that the
Nigerien government had arrested and tried soldiers involved
in the 2002 mutiny, sentencing several to prison terms of three
to seven years.
C
Abdoulaye and the government cross-appealed to the BIA,
which affirmed the IJ’s determination that Abdoulaye engaged
in terrorist activity. It declined to reach the additional question
whether Abdoulaye provided material support for terrorism.
The Board first observed that the mutineers’ seizure of the
governor brought the Diffa mutiny within the statutory
definition of terrorist activity. It then concluded that the IJ’s
factual findings that Abdoulaye was both involved in planning
the mutiny and aware that the plans included a plot to seize
the governor were not clearly erroneous. It identified
Abdoulaye’s testimony that he was involved in planning the
mutiny, his written statement, the government document
listing him as an organizer, and his decision to obtain both the
Belgian and the U.S. visas as record evidence supporting the
IJ’s findings.

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8 No. 12-3023
The Board disagreed, however, with the IJ’s decision to
grant Abdoulaye deferral of removal under the CAT. It
vacated that part of the IJ’s decision, concluding that
Abdoulaye had failed to meet his burden of showing it was
more likely than not he would be tortured if returned to Niger,
as opposed to merely being arrested and imprisoned as a
lawful sanction for his role in the mutiny. The Board acknowl-
edged Abdoulaye’s testimony that many mutineers had not
been heard from since their arrests, but it noted the absence of
any evidence to support this assertion. State Department
reports contradicted Abdoulaye’s contention; they indicated
that the Diffa mutineers were in fact receiving trials and
appeals and that their prison terms ranged from three to seven
years. And while the Board acknowledged reports showing
that prison conditions in Niger are poor and life-threatening,
it concluded that poor prison conditions do not amount to
torture unless the person can show that he would likely be
targeted for poor treatment in prison or that the poor condi-
tions are “specifically intended to inflict severe pain or suffer-
ing” on the prisoners. Abdoulaye now petitions for review of
the Board’s decision, challenging both the finding that he
engaged in terrorist activity and the conclusion that he failed
to establish his eligibility for CAT protection.
II
Abdoulaye contends that a number of the Board’s determi-
nations are unsupported by the record–in particular, (1) the
Diffa event was a mutiny (as opposed to a peaceful protest)
during which the governor was seized or detained; (2) he
played a non-trivial role in planning the mutiny; and (3) it was
not more likely than not that he would be tortured if returned
to Niger. We review the Board’s findings under the “substan-
tial evidence” standard, which requires us to assess whether

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No. 12-3023 9
the Board’s determination is “‘supported by reasonable,
substantial, and probative evidence on the record considered
as a whole,’” and to “reverse only if the evidence compels a
contrary conclusion.” Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th
Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). Where the Board adopts an IJ’s decision and supple-
ments it with its own reasoning—as the Board did here with
respect to whether Abdoulaye engaged in terrorist activ-
ity—we review the IJ’s decision as supplemented. See
Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010). By
contrast, where the Board issues its own opinion independent
of the IJ’s ruling—as it did with respect to whether Abdoulaye
was eligible for deferral of removal under CAT—we review the
Board’s decision only. See Martinez-Buendia v. Holder, 616 F.3d
711, 714-15 (7th Cir. 2010).
A
The central question in this petition is whether the Board’s
finding that Abdoulaye engaged in terrorist activity is properly
supported. The definition of terrorist activity in the INA
includes “[t]he seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in order to
compel a third person . . . to do or abstain from doing any act
as an explicit or implicit condition for the release of the individ-
ual seized or detained.” 8 U.S.C. § 1182(a)(3)(B)(iii)(II) (empha-
sis added). The Board reasonably concluded that this definition
encompasses hostage-taking of the sort that occurred when the
Diffa mutineers seized the regional governor and made
demands on the government. We note, though it is of no
moment here, that the statutory definition sweeps in far more
than such paradigmatic cases of political hostage-taking
because there is no requirement that the seizure or detention be

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10 No. 12-3023
politically motivated; simple kidnapping, for example, would
appear to qualify as terrorism under the statute. See Hussain v.
Mukasey, 518 F.3d 534, 537-38 (7th Cir. 2008). We can readily
dispatch Abdoulaye’s argument that the IJ had no basis for
concluding that the Diffa mutiny was violent or that the
governor was technically “seized.” News articles from multiple
sources uniformly described the mutiny as an armed uprising
that involved the seizure of the governor, and the IJ stated that
he was crediting these reports over Abdoulaye’s contrary
description of events. In the face of conflicting evidence, the IJ
was entitled to credit the evidence supporting the govern-
ment’s position. See id. at 536. Abdoulaye produced no
evidence to indicate that the news reports of the Diffa mutiny
were inaccurate, nor can he maintain that sources such as the
BBC and the United Nations are so inherently biased or
unreliable that crediting their reports would be absurd.
Abdoulaye’s remaining objection to the IJ and Board’s
findings is equally unavailing. Though Abdoulaye emphati-
cally denies having participated in planning the mutiny,
considerable evidence in the record indicates otherwise. First,
Abdoulaye’s conduct in the days leading up to the mutiny was
not what one would expect of a low-level participant: he
obtained multiple visas in anticipation of the need to flee, and
he was gone the moment he realized that the government had
gotten wind of the mutiny plot. Second, a government docu-
ment listed Abdoulaye as an organizer of the mutiny. Third,
Abdoulaye acknowledged that he was involved in the plan-
ning to at least some degree, and the IJ and Board were free to
take the position that, were it otherwise, his decision to flee
Niger before the mutiny began would not have made much
sense. Finally, there is the written statement accompanying
Abdoulaye’s asylum application. Although Abdoulaye

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No. 12-3023 11
attempts to avoid that statement as something that was the
product of mistranslation and his poor abilities in French, its
description of Abdoulaye’s role in the mutiny is consistent with
the other evidence tending to show that he played a non-trivial
role in the mutiny’s planning stages. Abdoulaye’s claim that he
did not understand the contents of the written statement
because of his difficulties with French is especially unpersua-
sive. Abdoulaye did not so much as hint that he had trouble
understanding French—to the contrary, he repeatedly identi-
fied French as his native language—until his final appearance
before the IJ, at which point the damaging nature of the
statement had already become clear. In short, there was ample
evidence in the record to support the IJ’s determination that,
rather than being “a simple soldier involved in the Diffa
mutiny,” Abdoulaye was “actively involved” in planning it.
B
Nor are we persuaded that Abdoulaye met his burden of
establishing that he would likely be tortured if returned to
Niger. (We note in passing that in overturning the IJ’s determi-
nation that Abdoulaye would more likely than not be subjected
to torture if returned to Niger, the Board applied de novo
review. This was in conflict with the holdings of four of our
sister circuits, see Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012);
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v.
Holder, 667 F.3d 523 (4th Cir. 2012); Kaplun v. Att’y Gen., 602
F.3d 260 (3d Cir. 2010). We need not decide whether this was
correct, or if not, how any error may have affected
Abdoulaye’s petition. Abdoulaye did not object to the Board’s
standard of review in his petition to this court, and arguments
not raised in a petition for review are waived. Asere v. Gonzales,

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12 No. 12-3023
439 F.3d 378, 381 (7th Cir. 2006); accord Ajayi v. Aramark Bus.
Servs., 336 F.3d 520, 529 (7th Cir. 2003).) The State Department
Country Reports in the record indicate that the people
involved in the Diffa mutiny have been arrested, tried, and
imprisoned. Neither these reports nor any other evidence,
however, indicates that any of the mutineers has been tortured,
killed, or even lawfully sentenced to death. Prison sentences
for the mutineers have ranged from three to seven years, and
some mutineers have succeeded in overturning their convic-
tions on appeal. Thus, although Abdoulaye expresses fear that
he will be detained indefinitely without trial or killed should
he return to Niger, the Board was entitled to conclude that his
testimony, without more, was insufficient to contradict the
record evidence suggesting that neither outcome was probable.
Abdoulaye emphasizes that the State Department reports
acknowledge that prison conditions in Niger are “poor and life
threatening.” The reports note that prisons are severely
overcrowded, that “nutrition, sanitation, and health conditions
[a]re poor,” and that deaths from disease occur. While we are
willing to assume that prison conditions in Niger are terrible,
this alone does not demonstrate that Abdoulaye will be
tortured if he finds himself in prison as a result of his role in
the Diffa mutiny. Unpleasant though it may be, imprisonment
imposed as part of a lawful sanction does not constitute torture
in and of itself. 8 C.F.R. § 1208.18(a)(3); see also Pavlyk v.
Gonzales, 469 F.3d 1082, 1091 (7th Cir. 2006). Abdoulaye could
establish eligibility for CAT protection by showing that he was
likely to be targeted for mistreatment in prison or that the
harsh conditions in Nigerien prisons are specifically intended
to inflict pain and suffering on the prisoners, see, e.g., Kang v.
Att’y Gen., 611 F.3d 157, 165 n.3 (3d Cir. 2010) (harsh prison
conditions are not themselves a basis for relief without show-

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No. 12-3023 13
ing of some sort of targeted intent to harm the applicant); Eneh
v. Holder, 601 F.3d 943, 948 (9th Cir. 2010) (same); In re J-E, 23
I. & N. Dec. 291, 300-01 (B.I.A. 2002) (same), but he has not
presented any evidence that would support either determina-
tion. Based on the record before us, we cannot conclude that
the Board erred in finding that Abdoulaye failed to carry his
burden of proof on his CAT claim.
Finding no error in the Board’s decision, we DENY the
petition for review.

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