Alou Traore v. John Ashcroft, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-4164
ALOU TRAORE,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF THE DECISION
OF THE BOARD OF IMMIGRATION APPEALS
(INS No. A93-272-895)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2003
Before: McKEE and SMITH, Circuit Judges,
and COWEN, Senior Circuit Judge
(Filed: September 19, 2003)
OPINION
McKEE, Circuit Judge.
In this immigration case, Alou Traore has filed a petition for review of a final
order of removal issued by the Board of Immigration of Appeals (“BIA”) on October 15,
2002. The BIA affirmed without opinion the decision of the Immigration Judge (“IJ”)
finding that Mr. Traore was removable under Section 212(a)(7)(A)(i)(I) of the

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1 This Court’s jurisdiction arises under INA § 242(a), 8 U.S.C. 1252(a), which provides the
exclusive procedure for judicial review of all final removal orders.
2 At the time of the events covered by this petition for review, the agency in charge of
immigration matters was the INS. On March 1, 2003, the INS ceased to exist as an agency and its
functions were transferred to the Department of Homeland Security (“DHS”). See Homeland
Security Act of 2002, Pub.L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002). Nonetheless, for the
sake of logical and narrative consistency, this opinion will continue to refer to the “INS” as the
central immigration agency.
2
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(7)(i)(I), as an immigrant
who at the time of application for admission was not in possession of a valid entry
document. The BIA also affirmed the IJ’s denial of Mr. Traore’s applications for asylum,
withholding of removal, and voluntary departure. For the reasons that follow, we will
dismiss the petition for review.1
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case in detail. It is sufficient to note that Alou Traore, a native and citizen of Mali, first
entered the United States on October 11, 1989, as a non-immigrant visitor. In an attempt
to obtain a work permit from the Immigration and Nationalization Service (“INS”)2, Mr.
Traore filed an administrative asylum application on May 24, 1993. Mr. Traore sought
asylum on the basis of his participation in the political party of former president of Mali,
Moussa Traore, and because of his father’s relationship to President Traore. Specifically,
Mr. Traore stated that he has suffered past persecution, and he fears future persecution by

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3 We must sustain the BIA’s determination if there is substantial evidence in the record to
support it. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this deferential standard,
the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion,
but compels it. Id. Because the BIA affirmed the IJ’s ruling without an opinion, we review the
decision of the IJ as if it were the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d 542, 549
n.2 (3d Cir. 2001).
3
the new government of Mali, which took power in a 1991 coup, because the new
government would perceive him as a sympathizer of the old regime.
In 1994 Mr. Traore obtained advance parole from the INS, left the United States to
visit Senegal, and returned to the United States on or about April 6 of the same year. On
October 21, 1998, the INS denied Mr. Traore’s asylum application and referred his case
to an IJ for a removal hearing. At this point, Mr. Traore’s parole was terminated.
On March 17, 1999, Mr. Traore appeared before the IJ and conceded the charge of
removability. As relief from removal, Mr. Traore requested asylum and withholding of
removal, or in the alternative, voluntary departure from the United States. The IJ denied
Mr. Traore’s requests and issued an order of removal, and the BIA affirmed without an
opinion. This petition for review followed.
II.
Mr. Traore claims the BIA erred by issuing a final order of removal, and each
claimed error will be addressed separately.3
A. Asylum and W ithholding of Removal

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4
INA § 208 gives the Attorney General discretion to grant asylum to a deportable
alien. 8 U.S.C. § 1158(a). But, that discretion can only be exercised if the applicant
qualifies as a “refugee.” Id. The term “refugee” is defined by statute as:
[A]ny person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside of any country in which such person last habitually
resided, and who 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.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant must present some evidence that the
alleged persecutors want to punish him “on account of” one of the five statutory grounds
in order to establish eligibility for asylum. INS v. Elias-Zacarias, 502 U.S. 478 (1992).
The “well-founded fear of persecution” standard involves both a subjectively genuine fear
of persecution and an objectively reasonable possibility of persecution. INS v. Cardoza-
Fonseca, 480 U.S. 421, 430-31 (1987).
Withholding of deportation is closely related to asylum. However, unlike the
asylum provision, the withholding provision states that the “Attorney General shall not
deport or return an alien. . . to a country if the Attorney General determines that such
alien’s life or freedom would be threatened in such country on account of race, religion,
nationality, membership in a particular social group, or political opinion.” INA § 243(h);
8 U.S.C. § 1253(h) (emphasis added). To succeed on an application for withholding of

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5
deportation, the alien must establish by a “clear probability” that his life or freedom
would be threatened in the proposed country of deportation. Janusiak v. INS, 947 F.2d
46, 47 (3d Cir. 1991). “Clear probability” means that it is “more likely than not” that an
alien would be subject to persecution. INS v. Stevic, 467 U.S. 407, 429-30 (1987). The
“clear probability” standard is a more rigorous standard than the “well-founded fear”
standard for asylum. Janusiak, 947 F.3d at 47. Thus, if an alien fails to establish the
well-founded fear of persecution required for a grant of asylum, he or she will, by
definition, have failed to establish the clear probability of persecution required for
withholding of deportation. Id.
In this case, as evidence of past persecution, Mr. Traore testified as to three
separate incidents: one being that his house was vandalized; another where he was the
victim of an assault; and another incident of bottle-throwing. Each was committed by
unknown assailants, and none of the incidents were reported to the police. Mr. Traore
also testified that his uncle was the M inister of Education and was killed by the mob in
1991. The IJ found that although Mr. Traore was credible and the incidents took place
during a time of social unrest in Mali, he was not entirely convinced the incidents were
politically motivated. The IJ further found that by the time of the asylum hearing in 2000,
the 1991 coup d’etat was “fairly remote in time” and that Mali had undergone pivotal
changes such that Mr. Traore was unable to establish a well-founded fear of future
persecution on account of his political opinion. In support of his decision, the IJ quoted

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extensively from the State Department reports showing only that high-ranking former
officials had been arrested, and that mere support of the former regime would not cause
anyone to be in danger today. Lastly, the IJ determined that any relationship between Mr.
Traore and the former Minister of Education was unproven.
There is substantial evidence in the record to support the findings of the IJ. Mr.
Traore did not know his attackers and no politically-charged threats were made during the
attacks, and thus there is not sufficient evidence showing these incidents were on account
of Mr. Traore’s political opinion. With respect to fear or future persecution, State
Department reports do not indicate that Mali is in the state of political and social turmoil
that it suffered in 1991. Further, Mr. Traore’s fear is belied by the fact that his parents
remain in Mali without encountering any problems, even though his father was the one
with the direct connection to the former president of Mali. Thus, the record supports the
IJ’s finding that Mr. Traore failed to show he suffered past persecution on account of his
political opinion or that he had a well-founded fear of future persecution.
B. Voluntary Departure
The Attorney General has discretion to grant an alien “voluntary departure” at his
own expense. 8 U.S.C. § 1229c. The INA statutorily bars voluntary departure for “an
alien who is arriving in the United States.” 8 U.S.C. §1229c(a)(4). Instead, an arriving
alien may avoid the stigma of a forced removal, and obtain de facto voluntary departure,
by simply withdrawing his application for admission. Id.

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An “arriving alien” is defined as any “applicant for admission. . . coming into the
United States at a port-of-entry” except “an alien who was granted advance parole which
the alien obtained in the United States prior to the alien’s departure from and return to the
United States.” 8 C.F.R. § 1.1(q). “Advance parole” is an administrative device that
allows an alien present within the United States, who has a pending asylum application
and wishes to leave the country temporarily, to obtain permission from the INS to be
paroled into the country upon return, provided the other conditions for admissibility are
met. 8 C.F.R. §§ 208.8, 212.5(f). Parole is not indefinite, and when parole terminates,
the alien “shall be restored to the status that he or she had at the time of parole. 8 C.F.R.
§ 212.5(e)(2)(i).
As was already stated above, Mr. Traore did obtain advance parole in 1994.
However, once the INS denied his asylum application in late 1998 and commenced
removal proceedings against him in 1999, Mr. Traore’s parole was terminated, and he
reverted back to the status he had at the time he was paroled into the country in 1994.
That is, he has the status of an arriving alien, and is removable for lack of valid entry
documents. Thus, the statutory bar against voluntary departure for arriving aliens applies
to Mr. Traore, and the IJ properly found him ineligible for this relief.
III.
For all of the above reasons, the petition for review is denied.

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TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee
Circuit Judge
DATED:

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