Kokou Meleabge Afeaneku v. John Ashcroft, Attorney General of the United States of America

1 Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of
Columbia, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-3581
KOKOU MELEABGE AFEANEKU,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
On Petition for Review of the Order
of the Board of Immigration Appeals
(No. A73-660-200)
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2004
Before: SLOVITER, NYGAARD, and OBERDORFER1, Circuit Judges.
(Filed: April 30, 2004)
OPINION OF THE COURT

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OBERDORFER, Senior District Judge.
Petitioner Kokou Meleagbe Afeaneku, a native and citizen of Togo, seeks
review of the Board of Immigration Appeals’ decision affirming the denial by an
immigration judge of Afeaneku’s application for political asylum and withholding of
removal. For the reasons detailed below, we deny the petition for review.
I. BACKGROUND
Because we write only for the parties, we will not restate the full facts of
the case. The following facts are undisputed and are drawn from Mr. Afeaneku’s asylum
application, his unsworn supplemental submission in support of the asylum application,
and his direct and cross-examination at a hearing before the immigration judge.
Afeaneku worked in The Republic of Togo as a merchant seaman. Since
1989, he also was an active member of the Union of Forces of Change (UFC), a “political
group seeking to oust the present military dictatorship.” Administrative Record (AR) at
325. In the UFC, he served as an “agitator” and “truck distributor,” his role being to
explain democratic concepts to the Togolose people and to distribute political leaflets.
AR at 94, 103-04 (Tr. of Hr’g Sept. 24, 1997). In 1993, while he was a crew member
aboard the ship M/S Nestor in Abidjan, a city in the African nation of Ivory Coast,
Afeaneku received flyers calling for boycott of the Togo presidential elections which
were intended for delivery to UFC officials in Lome, Togo. See id. at 329 (Addendum to
Asylum Application dated Jun. 27, 1997). When he arrived in Togo, he loaded the boxes

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of flyers and his personal belongings into a taxi to carry home. While still in the port, one
of the boxes of flyers broke open, spilling out some flyers, a number of which were
subsequently found by Togolese customs agents. Afeaneku delivered the remainder of
the flyers to a UFC official in Togo. The following day, Togolese police searched the
ship and questioned him regarding his activities. He was not arrested, and the police
permitted him to depart Togo by ship the following night. Afeaneku had no interactions
with the police between the 1993 flyer incident and April 1996.
In April 1996, Afeaneku and his then employer Sorinco Marine -- a
commercial shipping concern -- had a dispute over Afeaneku’s compensation. As a
result, Afeaneku threatened to file suit against Sorinco M arine. Shortly after that, a
Sorinco Marine official “went to the police and expose[d] [to] them the facts regarding
[his] involvement in getting those political fl[y]ers.” AR at 329 (Addendum to Asylum
Application dated Jun. 27, 1997). The Togolese police issued a series of convocations for
Afeaneku to report to the police headquarters. See id. at 127 (Trans. of Hr’g Sept. 24,
1997). The convocations do not state the reason for their issuance. Afeaneku stated his
belief that the convocations relate to the 1993 flyers issue because he “didn’t commit any
[other] crime” in the interim period. Id. at 139. He also stated his belief that the
Togolese government would be concerned in 1996 about the 1993 activities because the
government was attempting to stamp out opposition for the 1998 presidential election.
He provided no additional evidence in support of the claimed connection between the

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1993 episode and the 1996 convocations.
Although Afeaneku threw away the first two convocations because he was
“so angry,” id. at 127, he went into hiding for seven days and, in April 1996, fled to the
United States. He testified that although he was wanted by Togolese authorities, he was
able to pass through Togolese passport control on his way out of Togo to the United
States under “some kind of arrangement.” Id. at 150.
Afeaneku entered the United States on June 24, 1996 as in-transit seaman
with authorization to remain in the United States no later than July 22, 1996. He
remained in the United States following that date. On February 28, 1997, he filed an
application for asylum and withholding of deportation, in which he stated that he believed
that because of his involvement in the activities of the UFC, his life was in danger if he
returned to Togo. Afeaneku stated he delayed from applying for asylum from June 1996
until February 1997 because he did not initially intend to stay in the United States, but
subsequently decided that “his life was in serious danger.” Id. at 156.
On May 14, 1997, the INS instituted removal proceedings against him.
On June 27, 1997, Afeaneku appeared before an immigration judge (IJ). In that hearing,
he conceded deportability. See id. at 67. On September 24, 1997, he appeared before the
IJ for a hearing on the merits of his application. He was the only witness to testify at his
merits hearing. At the request of INS counsel, the hearings were continued to allow
forensic examination of Afeaneku’s convocation documents. On March 27, 1998, the

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hearings continued, at which time INS counsel reported that he was unable to obtain
forensic examination of the convocation documents.
At that close of that hearing, the IJ rendered an oral decision denying
Afeaneku’s application for asylum and withholding of removal, and ordered him removed
to Togo. In reaching her decision, the IJ first recognized that Afeaneku did not assert any
claim of past persecution, but rather based his claim solely on fear of future persecution
on account of political opinion or membership in the UFC if he returned to Togo. The IJ
also noted the paucity of record information regarding the UFC, and that the only
reference to the UFC in the State Department’s country report was that the party general’s
secretary was detained and released after thirty-six hours. AR at 39 (Tr. of Mar. 27, 1998
Hr’g); id. at 188 (US Dep’t of State Togo Report on Human Rights Practices for 1997,
dated Jan. 30, 1998) (“In December security forces detained Jean-Pierre Fabre, the
Secretary General of [the UFC] Party. . . . . The Government . . . did not file charges, and
released Fabre after a 36-hour detention.”). “Other than that,” the IJ concluded, “there is
no general information that would indicate a pattern or practice of persecution against
members of [Afeaneku’s] political party.” Id. at 39. The IJ noted that Afeaneku
conceded that he was never threatened with arrest and never experienced any problems
with the government of Togo in clear connection with the 1993 flyer incident other than
the 1993 questioning. Based on the record evidence, the IJ concluded, Afeaneku failed to
establish any causal link between the 1993 distribution of political leaflets and the 1996

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convocations. Moreover, reasoned the IJ, the record establishes that “even more
prominent members of [the UFC] have been taken into custody for very brief
questioning” and “have not been held for any lengthy period of time.” Id. at 49. Thus,
concluded the IJ, it “does not follow that [Afeaneku], who passed leaflets out years ago,
has a reasonable fear of persecution by the government as a result,” particularly in light of
the absence of any “evidence of any person similarly situated to [Afeaneku] who had been
persecuted by the government in such a manner.” Id. at 50.
On May 31, 2002, the Board of Immigration Appeals (BIA) affirmed,
without opinion, the IJ’s decision. Afeaneku appeals.
II. DISCUSSION
“A grant of asylum allows an otherwise-removable alien to stay in the
United States.” Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir. 2001). “Subject to
numerous exceptions not implicated in this case, the Attorney General may grant asylum
to an alien he determines to be a refugee.” Id. (internal citations and quotation marks
omitted). As relevant to this case, a person is a “refugee” if he or she is “unable or
unwilling” to return home “because of persecution or a well-founded fear of persecution
on account of . . . political opinion.” Id. (quoting 8 U.S.C. § 1101(42)(A)).
“Withholding of removal, in contrast, confers only the right not to be
deported to a particular country - not a right to remain in this one.” Abdulai, 239 F.3d at
545 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999)). An alien is entitled to

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withholding of removal “if the alien's life or freedom would be threatened in that country
because of the alien's race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In contrast to the discretionary relief
available to individuals who qualify for political asylum, “if an alien qualifies for
withholding of deportation . . . then the Attorney General is prohibited from deporting the
alien to the country where the prosecution will occur.” Lin v. INS, 238 F.3d 239, 244 (3d
Cir. 2001). To qualify for mandatory relief under withholding of deportation, an
applicant must show that it is more likely than not that he will face persecution if he is
deported. See id. Because this standard is more stringent then the well-founded fear of
persecution standard required for asylum, an alien who fails to satisfy the well-founded
fear standard also fails to satisfy the standard for withholding of removal. Janusiak v.
INS, 947 F.2d 46, 47 (3d Cir. 1991).
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). When, as in this case, the BIA employs its streamlining procedures, “we
review the IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245
(3d Cir. 2003) (en banc). We review the IJ’s determination that Afeaneku failed to
demonstrate a well-founded fear of persecution if returned to Togo under the substantial
evidence standard. Abdille, 242 F.3d at 483. Under that standard, Afeaneku must show
“that the evidence he presented was so compelling that no reasonable factfinder could fail
to find” that he has a well-founded fear of persecution. Lukwago v. Ashcroft, 329 F.3d

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157, 167 (3d Cir. 2003) (quoting Abdille, 242 F.3d at 484). We can only reverse if we are
convinced that the record “not only supports that conclusion, but compels it.” Id.
Afeaneku has not shown that the record satisfies that standard. For
substantially the same reasons identified by the IJ and summarized above, we are
persuaded that substantial evidence supported the IJ’s finding that Afeaneku failed to
demonstrate a well-founded fear of persecution if returned to Togo. A fortiori, Afeaneku
has not shown that the evidence compels a finding that there is a “clear probability” of
persecution, the standard required to justify a reversal of the IJ’s denial of his application
for withholding of removal. Janusiak 947 F.2d at 47.
For the foregoing reasons, the petition for review of the Board of
Immigration Appeals is DENIED.

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