                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2004

Eshun v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2463




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"Eshun v. Atty Gen USA" (2004). 2004 Decisions. Paper 691.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/691


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2463


                            GEORGE ANTHONY ESHUN,

                                            Petitioner

                                             v.

                           JOHN ASHCROFT, IN HIS
                       CAPACITY AS ATTORNEY GENERAL
                                OF THE U.S.,

                                           Respondent




                        On Petition for Review of an Order of the
                         Immigration and Naturalization Service
                            Board of Immigration Appeals
                                (BIA No. A 76 576 863)


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 15, 2004

             Before:    RENDELL, STAPLETON, LAY*, Circuit Judges

                                  (Filed May 19, 2004)




_________________________

  *   Honorable Donald P. Lay, Senior Circuit Judge of the United States Court of
      Appeals for the Eighth Circuit, sitting by designation.
                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       This matter comes before us pursuant to a Petition for Review of an Order of the

Immigration and Naturalization Service Board of Immigration Appeals (“BIA”),

affirming the ruling of the Immigration Judge that George Anthony Eshun had not

satisfied the burden of proof required to establish his claim for withholding of removal

and for protection under the Convention Against Terrorism (“CAT”).

       Eshun is a native and citizen of Ghana who arrived in the United States in June

1996. Eshun urges that, as a “prosperous individual,” he was targeted by the regime of

then-president J.J. Rollins, and the Ghana Militia, who committed human rights violations

against, among others, wealthy businessmen such as Eshun’s stepfather, J.B. Anim.

Anim was engaged in the diamond mining industry, and introduced his stepson to this

elite business world. With Anim’s help, Eshun became a member of the “exclusive

Precious Diamond Winners’ Association.”

       Eshun urges that this success and wealth made him a target of the Ghana Militia;

the area assigned to him was raided, and he was taken into custody and beaten. Eshun

testified before the Immigration Judge that he was captured by the Ghana M ilitia in April

of 1996 and taken to a military barracks, where he was held in custody for two days. He

was stripped, questioned, made to sleep in a room that was three or four inches deep in

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water so that he could not sleep lying down, and tortured. Eshun arranged to leave Ghana

and come to the United States through the aid of a friend.

       The Immigration Judge initially was critical of Eshun’s entry into the United States

by means of a smuggler, who obtained false documents. Eshun urged that he did not

have knowledge of this and was not responsible for it, but the Immigration Judge believed

that this at least raised “questions” regarding Eshun’s veracity. The Immigration Judge

also questioned the bona fides of Eshun’s marriage, based upon the fact that he had been

found in possession of a document containing proposed answers to questions for an

interview, suggesting that he lacked sufficient personal knowledge on his own regarding

the woman he claimed was his wife.

       The Immigration Judge made clear, however, that the most important aspect of the

matter before him involved Eshun’s contention that he was taken into custody and

tortured by the Ghana Militia based upon a political motive. The Immigration Judge

viewed the evidence offered by Eshun, not as revealing a political motive, but, rather, as

documenting a police attempt to investigate violations of law by diamond miners.

Moreover, the Immigration Judge found unconvincing Eshun’s claim that he “would

more likely than not” be subjected to torture by government agents if he were returned to

Ghana, since Eshun could avoid the possibility of torture by relocating to an area other

than the diamond mining region.

       The BIA affirmed the Immigration Judge’s ruling. The BIA noted, also, that



                                           -3-
Eshun had failed to show that he is a member of a particular social group as contemplated

by the Immigration and Naturalization Act (“INA”), because members in the Precious

Diamond Winners’ Association do not share “an immutable or fundamental

characteristic.”   See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other

grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). (A-002)

        On appeal to our court, Eshun urges that he did meet his burden of proof, and,

also, that the acts of persecution that were committed against him were on account of his

membership in a social group. Eshun argues that he was targeted, along with other

wealthy businessmen, because the Ghana Militia wanted to “inveigle the rich to donate

their assets, property and money to fund the Rollins government.” (Appellant’s Brief,

p. 6)

        Eshun states that the Ghana Militia’s purpose was not so much to “get their

support for the administration of Rollins as to waylay their assets and property, and

sequester their businesses.” (Appellant’s Brief, p. 7)    Thus, he argues, their persecution

was “due to their social status in society,” and they should be classified as belonging to a

particular “social group,” one of the give protected grounds for relief.

        Eshun also argues that the Immigration Judge did not base his determination on

lack of credibility, and he urges that his testimony was sufficient.

        We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the ruling of the

Immigration Judge and the BIA for substantial evidence. Gao v. Ashcroft, 299 F.3d 266,



                                            -4-
272 (3d Cir. 2002).

       We conclude that substantial evidence supports the Agency’s determination that

the “Precious Diamond Winners’ Association” in Ghana does not constitute a “particular

social group” within the contemplation of the INA. The fact that Eshun had a certain

livelihood and was wealthy does not make him a member of a social group as

contemplated by the INA, because that classification carries with it the sharing of “an

immutable or fundamental characteristic.” Rather, Eshun shared an occupation, and he

could have changed occupations so that he no longer was in the diamond business, or was

no longer a member of the Association. Withholding of removal is only available under

section 241(b)(3) of the INA if the alien’s life or freedom would be threatened on account

of “. . . membership in a particular social group . . .” Eshun has not sustained his burden

of proving that he is so qualified for withholding of removal.

       Further, we cannot find fault with the Immigration Judge’s analysis of the probable

motive for government interference with the diamond merchants, as it was supported by

reports, whereas Eshun’s argument that the militia were seeking financial support for the

Rawlings government is unsupported.

       Lastly, although Eshun contends that his credibility was not undermined, it is

apparent from a review of the Immigration Judge’s determination that, as noted above, he

was skeptical of Eshun’s claims as to precisely why the Ghana Militia had targeted him

and his family. His credibility was further damaged in the Immigration Judge’s eyes by



                                           -5-
his manner of entry and his need to write down information about his wife.

      Accordingly, the agency determination was supported by substantial evidence, and

the Petition for Review will be DENIED.




                                          -6-
