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


2-1-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2007




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                                                                   NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                     No. 04-2007
                                     ___________

                             OMALI ADEKA RODGERS,

                                                             Petitioner,

                                            v.

               ATTORNEY GENERAL OF THE UNITED STATES,

                                                             Respondent
                                     ___________

                          On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                 (BIA No. A97-133-163)
                                     ___________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                January 17, 2006

              Before: ROTH, FUENTES, and BECKER Circuit Judges.

                               ( Filed: February 1, 2006 )

                             ________________________

                                     OPINION
                             ________________________


FUENTES, Circuit Judge:

      Petitioner Omali Adeka Rodgers (“Rodgers”) seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial

of his applications for asylum, withholding of removal, and protection under the

Convention Against Torture. In so ruling, the BIA affirmed without opinion the findings

of the IJ that Rodgers did not have a well-founded fear of future persecution. For the

reasons that follow, we deny the petition for review.1




                                          I. Facts

       Because we write only for the parties, we recite only the essential facts.

       Rodgers is a twenty-seven-year-old single father of two children and is a native

and citizen of Guyana. He alleges that, on October 25, 2002, while visiting cousins in

Georgetown, Guyana, he and his cousins witnessed an altercation involving gunfire

between policemen and members of a gang known as the “Phantom Force.” The next

day, he read about the incident in the newspaper and learned that the Phantom Force was

working with the police. When he returned to his hometown of Linden, he told family

and friends about what he witnesses. One month later, approximately ten men stopped

him on the street and beat him, telling him to stop talking about what he witnessed in

Georgetown. He recognized one of the men as a drug dealer for the Phantom Force in

Linden. He was taken to the hospital and reported his beating to the police, who told him



  1
    Where, as here, the final order of the BIA summarily affirms or defers to the decision
of the IJ, this Court “must review the IJ’s decision.” Abdulai v. Ashcroft, 239 F.3d 542,
549 n. 2 (3d Cir. 2001).

                                             2
that they lacked sufficient evidence to investigate the matter.

       Rodgers’s cousins left Guyana two months after they witnessed the shooting, but

returned four months later. Rodgers’s cousins were killed approximately one month after

their return. Rodgers alleges that his cousins were killed in a manner that strongly

suggests they were murdered by the Phantom Force. Rodgers left Guyana on April 14,

2003, shortly after the death of his cousins.

       Rodgers alleges that the Phantom Force will murder him if he returns to Guyana.

He alleges that the Phantom Force will kill him in order to silence him because it is under

investigation by the United States Federal Bureau of Investigation (the “FBI”). He

believes that the FBI is investigating the Phantom Force because he read this in a

December 2002 newspaper in Guyana. He alleges that the Phantom Force would know of

his return to Guyana because deportees are well-publicized. At his hearing before the IJ,

Rodgers presented his mother, Sandra Rodgers (“Mrs. Rodgers”), as a witness. She

corroborated Rodgers’s story of the November 2002 beating, and testified that she

believed Rodgers would be killed if he returned to Guyana. However, she was unable to

corroborate Rodgers’s allegations that his cousins had been murdered.

       The IJ denied Rodgers’s applications for asylum, withholding of removal, and

protection under the CAT on September 23, 2003, based on lack of objective evidence

demonstrating that Rodgers had a well founded fear of future persecution upon his return

to Guyana. The IJ concluded that Rodgers had not been persecuted because of



                                                3
membership in a particular political or social group, or because of his race, religion, or

nationality. The IJ also found no evidence to support Rodgers’s claim that there was an

FBI investigation of the Phantom Force, the Phantom Force’s alleged motivation to kill

Rodgers. Moreover, the IJ held that the record did not establish that the police were

unable or unwilling to protect Rodgers.

       Rodgers appealed to the BIA, raising for the first time the argument that he had

been persecuted as a member of a particular social group – namely as a witness to the

altercation between the Phantom Force and the police. He again argued that the police

are unwilling or unable to protect him because the Phantom Force controls the police.

The BIA affirmed the IJ’s decision without opinion on March 16, 2004.

                                       II. Discussion

       We review the IJ’s decision under the substantial evidence standard. See Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We conclude that substantial evidence

supports the IJ’s conclusion that Rodgers has failed to demonstrate that the Guyanese

government is unwilling or unable to protect him.

       Where violence is “primarily wrought by fellow citizens” rather than “government

action or acquiescience,” an application for asylum will be denied. Lie v. Ashcroft, 396

F.3d 530, 537-38 (3d Cir. 2003). An application for asylum based on the action of private

citizens must therefore demonstrate that the government condones the conduct or takes no

action to stop it. See Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001). Here, the



                                              4
evidence presented simply does not compel Rodgers’s conclusion that the police worked

in tandem with the Phantom Force or that they were unwilling or unable to help Rodgers.

The IJ based her decision on articles in the record demonstrating that, although criminal

gangs are active in Guyana, the Guyanese government and police are working to control

them. Moreover, as the IJ noted, the police did not act indifferently in response to

Rodgers’s report of his November 2002 beating, but rather were unable to pursue it due to

lack of evidence. Therefore, we find that the IJ’s decision denying asylum is supported

by substantial evidence. For largely the same reasons, we find that substantial evidence

supports the IJ’s denial of withholding of removal and protection under the CAT.

       Rodgers also argues that the BIA erred in affirming the IJ’s decision without

opinion because he had raised a new argument in his appeal that he was a member of a

particular social group. Because we conclude that substantial evidence supports the IJ’s

holding that Rodgers failed to show the police were unable or unwilling to protect him,

Rodgers’s argument that, as a witness to the shooting incident, he was a member of a

particular social group is immaterial. Even if the BIA were to find that Rodgers was a

member of a particular social group, substantial evidence supports the IJ’s finding that he

has not demonstrated a well-founded fear of persecution as a member of that group.




                                      III. Conclusion

       For all of the foregoing reasons, the IJ’s decision was based upon substantial



                                             5
evidence. Therefore, we will deny the petition for review.




_________________________




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