Amanlaman Ehoan v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 05-5091
________________
AMANLAMAN EHOAN,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A77 626 810)
________________
Submitted Under Third Circuit LAR 34.1(a)
October 10, 2006
BEFORE: RENDELL, AMBRO and ROTH, Circuit Judges
(Filed: December 20, 2006)
________________
OPINION
________________
PER CURIAM
Amanlaman Ehoan, a native and citizen of Cote d’Ivoire, arrived in the United

-- 1 of 7 --

1 As we write primarily for the parties, we will discuss below only those facts relevant
to the disposition of this case.
2
States in 2000 and sought political asylum and withholding of removal. The Immigration
Judge (“IJ”) denied relief, and in 2002 the Board of Immigration Appeals (“BIA”)
affirmed. Thereafter, the BIA granted Ehoan’s motion to reopen the removal proceedings
and the IJ heard additional evidence in support of Ehoan’s application. The IJ found that
Ehoan had committed “serious non-political crimes” and therefore was ineligible for
asylum and withholding of removal. The IJ also found that Ehoan had not satisfied his
burden of proving eligibility for a deferral of removal. The BIA summarily affirmed
without opinion.1
I.
A petitioner is subject to the mandatory denial of his application for asylum and
withholding of removal if there are “serious reasons for believing that [he] has committed
a serious nonpolitical crime” in another country prior to his arrival in the United States. 8
U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii). The BIA generally defines “serious
nonpolitical crime” as conduct in which the criminal nature of the offense outweighs its
political aspects. Matter of McMullen, 19 I. & N. Dec. 90, 97-98 (BIA 1984);
Immigration & Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 429 (1999)
(approving of McMullen test). This “formulation does not purport to provide a
comprehensive definition, . . . and the full elaboration of [the] standard . . . await[s]
further cases . . . .” Aguirre-Aguirre, 526 U.S. at 429.

-- 2 of 7 --

3
Although we recognize that the BIA may issue summary affirmances without
opinion, it must do so pursuant to its regulations and its decision to summarily affirm is
subject to judicial review. See Smriko v. Ashcroft, 387 F.3d 279, 295-96 (3d Cir. 2004).
The regulations permit a BIA member to affirm without opinion if the “issues . . . are
squarely controlled by existing [BIA] or federal court precedent and do not involve the
application of precedent to a novel factual situation” or if the “factual and legal issues . . .
are not so substantial that the case warrants the issuance of a written opinion.” 8 C.F.R. §
1003.1(e)(4)(i). Neither condition was satisfied in this case. We have not found any
cases with facts sufficiently close to those presented here—particularly given that
Ehoan’s activities, unlike those at issue in Aguirre-Aguirre, did not involve physically
harming anyone —to warrant a finding that the case is “squarely controlled” by prior
precedent. Aguirre-Aguirre, 526 U.S. at 429. In addition, the Supreme Court stated in
Aguirre-Aguirre that this area of law is only partially developed. Id. Also the issue in
this case is not insubstantial. As stated by the Supreme Court:
judicial deference to the Executive Branch is especially appropriate in the
immigration context where officials exercise especially sensitive political
functions that implicate questions of foreign relations. A decision by the
Attorney General to deem certain violent offenses committed in another
country as political in nature, and to allow the perpetrators to remain in the
United States, may affect our relations with that country or its neighbors.
The judiciary is not well positioned to shoulder primary responsibility for
assessing the likelihood and importance of such diplomatic repercussions.

-- 3 of 7 --

2 For these reasons, we decline to consider overlooking the improper streamlining and
reviewing the IJ’s decision on the merits. See Smriko, 387 F.3d at 296, n.11 (recognizing
that other courts have found that in some cases it makes no practical difference whether
the BIA improperly streamlined its review).
3 We express no opinion as to Ehoan’s eligibility for asylum and withholding of
removal.
4
Aguirre-Aguirre, 526 U.S. at 425.2
Accordingly, we conclude that the BIA’s decision to affirm without issuing a
written opinion, given the specific circumstances of this case, was arbitrary and
capricious. See Smriko, 387 F.3d at 296. We will therefore grant the petition for review
as to the asylum and withholding of removal claims and remand to the BIA for further
proceedings.3
II.
A petitioner subject to the mandatory denial of withholding of removal shall be
granted a temporary deferral of removal to the proposed country of removal if he is
otherwise entitled to protection under the Convention Against Torture (“Convention”). 8
C.F.R. § 1208.17(a). To be entitled to protection under the Convention, a petitioner must
demonstrate that it is more likely than not that he will be tortured if removed to the
country of proposed removal. 8 C.F.R. § 1208.16(c)(2). Torture is an extreme form of
cruel and inhuman treatment “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. §
1208.18(a)(1). Acquiescence requires that “prior to the activity constituting torture, [the
official has] awareness of such activity and thereafter breach[s] his . . . legal

-- 4 of 7 --

4 Unlike the finding that Ehoan had committed a ‘serious non-political crime’, this
claim does not present a “novel factual situation” or raise an issue that necessarily
warrants a written opinion by the BIA. Accordingly, we will review the IJ’s opinion. Cf.
Smriko, 387 F.3d at 296.
5
responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).
Ehoan testified that in 1990, while a member of the Democratic Party of Cote
d'Ivoire (“PDCI”), he was abducted by soldiers who were supporters of the Front Populair
Ivoirien (“FPI”), an opposing party. A.R. 129-132. Ehoan was beaten and raped by the
soldiers and forced to lie down on a hot road and stare at the sun in the middle of the
afternoon. A.R. 133-38. Later, Ehoan’s uncle, an army commander, came to the site.
A.R. 139. The soldiers learned that Ehoan was the commander’s nephew, and Ehoan was
released. A.R. 140. Ehoan’s uncle subsequently told Ehoan that he did not report the
incident to the soldiers’ superiors because once the soldiers knew they had been
identified, they would seek to catch Ehoan again and kill him. A.R. 141-42.
Nonetheless, Ehoan’s uncle told Ehoan that he would not be harmed again, and Ehoan
was not harmed prior to leaving Cote d’Ivoire. A.R. 150-51, 157-58. The IJ found that
Ehoan had not demonstrated that the rape was inflicted by or at the instigation or
acquiescence of government officials. A.R. 102-03.
We review the IJ’s factual findings under the substantial evidence standard,4
whereby the findings are upheld “unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d
379, 381 (3d Cir. 2005). We have reviewed the record and find that the IJ’s finding about

-- 5 of 7 --

6
the lack of involvement or acquiescence by the government is supported by substantial
evidence such that a reasonable adjudicator would not be compelled to find otherwise.
Furthermore, Ehoan’s reliance on Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) is
misplaced. In Khouzam the court noted that the “routine nature” of the torture by police
acting in their private capacities in conjunction with the criminal justice system provides
evidence that higher-level officials acquiesced in the conduct. Id. at 171. In this case, no
evidence was provided that FPI soldiers routinely raped PDCI members.
The IJ, however, failed to address the evidence that Ehoan submitted showing that
conditions had changed in Cote d’Ivoire so as to increase the likelihood that he would be
subjected to torture upon his return. Reading the transcript of the IJ hearing, it appears
that there was some confusion as to whether the BIA granted the motion to reopen on the
basis of this evidence, as the only evidence that the BIA addressed in its order regarded
Ehoan’s 1990 rape. The record shows that Ehoan submitted evidence of changed
conditions with the motion to reopen, that he addresses those conditions in the motion
itself, and that the BIA did not affirmatively indicate that it was only partially granting
Ehoan’s motion. Moreover, the IJ admitted changed conditions evidence in her hearing
after the BIA reopened the case. As we have held, we simply cannot meaningfully
review the IJ and BIA’s decisions when they fail to address key issues. See Cruz v. Att’y
Gen. of the U.S., 452 F.3d 240, 248-49 (3d Cir. 2006).
Accordingly, we will also grant the petition for review as to the deferral of

-- 6 of 7 --

5 We express no opinion as to the merits of Ehoan’s claim that subsequent events
indicate that he will be tortured upon his removal.
7
removal claim.5

-- 7 of 7 --