                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0513n.06
                             Filed: July 19, 2007

                                         Case No. 06-3083

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 ALPHA DIALLO, et al.,                                 )
                                                       )
         Petitioners,                                  )
                                                       )       ON APPEAL FROM THE
                v.                                     )       BOARD OF IMMIGRATION
                                                       )       APPEALS
 ALBERTO R. GONZALES, Attorney                         )
 General,                                              )
                                                       )
         Respondent.                                   )
                                                       )
 _______________________________________               )

BEFORE: KEITH, BATCHELDER, and MOORE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Petitioners Alpha Diallo and Aissatou Diallo,

husband and wife, appeal the decision of the Board of Immigration Appeals (“BIA”), which

summarily affirmed the Immigration Judge’s (“IJ”) denial of Mr. Diallo’s asylum application and

request for withholding of removal. On appeal, Mr. and Mrs. Diallo argue that we should reverse

or, alternatively, remand the BIA’s decision because the IJ applied the incorrect legal standard for

analyzing Mr. Diallo’s alleged fear of future persecution. Finding that the IJ incorrectly articulated

the standard for a future persecution claim, we VACATE the decision of the BIA and REMAND

this matter for further proceedings consistent with this opinion.

                                                  I.

       Mr. and Mrs. Diallo are citizens of Guinea. Mr. Diallo worked as a marine engineer for

Guinomar — a company owned 51% by the Guinean government and 49% by a Norwegian
company. His job required him to alternate between sea voyages lasting two to six months and

“vacation” periods lasting four months. His numerous voyages took him all over the world, stopping

at ports throughout the United States, South America, Asia, and Europe. Mr. Diallo was also an

active participant in the opposition political party known as the Party of Renewal and Progress

(“PRP”), which later changed its name to the Union for Progress and Renewal (“UPR”). Although

Mr. Diallo did not hold an office in the UPR, he was regularly involved in party meetings,

community education, and campaign activities.

       During the 1995 election, Mr. Diallo’s father was a candidate for political office in Koundara,

Guinea. Mr. Diallo received mission orders from the UPR to campaign on his father’s behalf. Just

prior to the election, Mr. Diallo learned that UPR party members were not receiving their voting

cards, which effectively precluded them from voting in the election, and he sought assistance from

the government representative in Koundara. An argument erupted during Mr. Diallo’s meeting with

the government official. The government official called the police, told them that Mr. Diallo

threatened to kill him, and requested that Mr. Diallo be arrested. Mr. Diallo was taken to prison

where he was detained and questioned for seventy-two hours. During this time, Mr. Diallo was

ordered to disrobe, thrown into a dark cell with other inmates, interrogated about his political

involvement, beaten on his bare buttocks with a belt, and left to stand naked or partially naked for

an hour in an area visible to others.

       During the 1998 election, Mr. Diallo again obtained mission orders to campaign for the party.

This time he engaged in campaigning activities without any adverse treatment by the government.

In February 2000, after Mr. Diallo had returned home from a long voyage at sea and resumed his

political activities, an unidentified group of approximately ten armed men invaded his home in


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Conakry, Guinea. The men asked to speak with Mr. Diallo and demanded money and other

valuables. While Mr. Diallo hid under a car in the garage, Mrs. Diallo took the men to the closet

where the family kept its money. As the men were loading money into their bags, Mr. Diallo’s

neighbors came to the rescue, killing two of the men and scaring away the rest.

       Overwhelmed with fear, Mrs. Diallo immediately took her children to stay with her mother

in Gambia, but because her stepfather did not want Mrs. Diallo living with him, Mrs. Diallo soon

left her mother’s residence and obtained a temporary visa to travel to the United States in January

2001. Prior to leaving for the United States, Mrs. Diallo sent her children to live with Mr. Diallo’s

mother in Koundara, where they remain to this day. In July 2002, Mr. Diallo visited his wife in New

York and tried in vain to convince her to return to Guinea. After this unsuccessful effort, Mr. Diallo

returned to Guinea alone. On May 10, 2003, Mr. Diallo again heard a group of men trying to invade

his home. Before the men could get inside, Mr. Diallo’s neighbors began shouting, honking their

car horns, and firing warning shots — all of which caused the intruders to flee. Mr. Diallo remained

in Guinea for two months following this incident before obtaining a temporary visa to travel to the

United States in July 2003.

       On March 25, 2004, the government issued a notice to appear against Mr. and Mrs. Diallo

because they had exceeded the terms of their respective temporary visas and were removable under

the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. Mr. and Mrs. Diallo conceded

removability, but Mr. Diallo filed an application for asylum and withholding of removal on the basis

of political persecution, in which he sought protection for Mrs. Diallo as his wife. See 8 U.S.C. §

1158(b)(3)(A) (“A spouse . . . of an alien who is granted asylum under this subsection may . . . be

granted the same status as the alien if accompanying, or following to join, such alien”). After a


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hearing on this matter, the IJ denied Mr. Diallo’s application, concluding that, even though Mr.

Diallo was credible, he did not establish past persecution or demonstrate a well-founded fear of

future persecution. The IJ reviewed three incidents — the 1995 detention, the 2000 home invasion,

and the 2003 attempted home invasion — as bases for Mr. Diallo’s asylum request. The IJ first

considered whether the 1995 detention amounted to past persecution and stated, in one sentence

without any supporting analysis, that “this brief incarceration [did] not constitute past persecution.”

The IJ next assessed whether the 1995 detention gave rise to a well-founded fear of future

persecution, concluding that such fear, even if based on his political opinion, was not “subjectively

reasonable.” The IJ then concluded that Mr. Diallo failed to establish that the 2000 or 2003 home

invasions were related to his political activities, concluding it was just as likely that Mr. Diallo, as

a prosperous citizen, was the victim of a violent burglary. The BIA affirmed the IJ’s decision

without opinion, and Mr. Diallo filed a petition for review to this court.

                                                  II.

       “When the [BIA] adopts the decision of the IJ in lieu of issuing its own opinion, we review

the IJ’s decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003); see

also 8 C.F.R. § 1003.1(e)(4)(ii). An alien qualifies as a refugee for purposes of asylum if he is

unable or unwilling to return to his homeland “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); see also INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). “In order to demonstrate that he qualifies as a refugee, an alien must establish either that he

has suffered actual past persecution or that he has a well-founded fear of future persecution.” Pilica

v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004) (citing 8 C.F.R. § 208.13(b)).


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       On appeal, Mr. Diallo argues that the IJ applied an improper legal standard when evaluating

whether his 1995 detention demonstrated a well-founded fear of future persecution. We will vacate

and remand the IJ’s decision if he applied an incorrect legal standard. See Grijalva v. Gonzales, 212

F. App’x 541, 551 (6th Cir. 2007) (unpublished case).

       In finding no well-founded fear of future prosecution, the IJ stated:

       To the extent that [Mr. Diallo] bases a claim for asylum on [his 1995 detention], he
       must demonstrate that any fear that he has is both objectively and subjectively
       reasonable. It is not subjectively reasonable for [an asylum applicant] to fear this
       incident, as the basis of a claim, when he left Guinea shortly thereafter as a seaman
       and returned to Guinea numerous times, between 1995 and 2003. This indicates that
       [Mr. Diallo’s] fear is not subjectively reasonable, even if it is based on his political
       opinion.

“A well-founded fear of persecution . . . has both a subjective and an objective component[.]”

Pilica, 388 F.3d at 950. The subjective component of a well-founded fear of future persecution

requires that the applicant “must actually fear that he will be persecuted upon return to his

country[.]” Perkovic v. INS, 33 F.3d 615, 620-21 (6th Cir. 1994). The objective component, on the

other hand, requires that the applicant must “establish[] an ‘objective situation’ under which his fear

can be deemed reasonable.” Pilica, 388 F.3d at 950. Thus, the subjective component asks only

whether the applicant’s fear is genuine (i.e., whether he actually fears future persecution), and the

objective component evaluates whether the applicant’s fear is reasonable. Lumaj v. Gonzales, 462

F.3d 574, 578 (6th Cir. 2006) (“The fear of persecution must be both subjectively genuine and

objectively reasonable.”).

       By speaking in terms of “subjective reasonableness,” the IJ improperly conflated these two

separate inquiries. We suspect that the IJ may have simply misspoken during the dictation of his

decision, and that he was actually analyzing whether Mr. Diallo’s fear was “objectively reasonable,”


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which is the proper inquiry under the objective prong. See id. The IJ had already concluded that Mr.

Diallo was credible, and it would be illogical, after finding Mr. Diallo credible, for the IJ to question

the genuineness of his subjective fear. See Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005)

(“The subjective fear component turns largely upon the applicant’s own testimony and credibility.”).

But because we cannot be sure whether the IJ applied an improper standard or whether he merely

incorrectly stated the proper standard, we think the appropriate course is to remand the case and give

the IJ an opportunity to articulate and apply the proper legal standard to the claim of future

persecution.

        We have some concern as well about the IJ’s failure to provide any analysis of whether Mr.

Diallo’s 1995 detention amounted to past persecution. “[P]ersecution is an extreme concept that

does not include every sort of treatment our society regards as offensive.” Ali v. Ashcroft, 366 F.3d

407, 410 (6th Cir. 2004) (alteration in original); see also Mikhailevitch v. INS, 146 F.3d 384, 389-90

(6th Cir. 1998). Mr. Diallo testified that he was arrested after a political squabble, detained for three

days, ordered to disrobe, interrogated about his political associations, beaten with a belt, and left to

stand naked or partially naked for an hour in an area visible to others. In issuing his decision, the

IJ summarily stated in one conclusory sentence that “this brief incarceration [did] not constitute past

persecution.” Whether Mr. Diallo’s detention amounted to past persecution is a close legal question

— one that requires at least some analysis from the IJ. While we have affirmed other BIA decisions

finding no past persecution where an applicant experienced harsher treatment than that endured by

Mr. Diallo, see, e.g., Mullai v. Ashcroft, 385 F.3d 635, 637-38 (6th Cir. 2004) (affirming a finding

of no past persecution where the petitioner was detained for at least a week and was beaten by the

police on four separate occasions); Mburu v. Gonzales, 214 F. App’x 505, 508 (6th Cir. 2007)


                                                   6
(unpublished case) (affirming a finding of no past persecution where the petitioner was detained for

four days, interrogated, and physically assaulted); Gjokic v. Ashcroft, 104 F. App’x 501, 505 (6th Cir.

2004) (unpublished case) (affirming a finding of no past persecution where the petitioner was

detained and beaten), we have generally had the benefit of the IJ’s analysis on the issue.

                                                 III.

       For the foregoing reasons, we VACATE the decision of the BIA and REMAND for further

proceedings consistent with this opinion.




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