                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5091




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                                                          NOT PRECEDENTIAL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
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.


  1
     As we write primarily for the parties, we will discuss below only those facts relevant
to the disposition of this case.
                                               2
       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
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

  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
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


  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
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
removal claim.5




  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
