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


4-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2024




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2024


                                   PRINCE BROWN

                                                Petitioner

                                           v.

                             ALBERTO R. GONZALES,
                         Attorney General of the United States*

                                                Respondent


                            Petition for Review of an Order
                         of the Board of Immigration Appeals
                                   (No. A79-774-402)
                       Immigration Judge: Donald Vincent Ferlise


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2006

  Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,** District Judge

                                 (Filed: April 10, 2006)




   *
    Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as U.S.
Attorney General pursuant to Rule 43(c)(2), Federal Rules of Appellate Procedure.
   **
    The Honorable Joseph H. Rodriguez, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
                                        OPINION


ALDISERT, Circuit Judge


       Prince Brown, a native and citizen of Ghana, petitions for review of a final order

of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”)

denial of his application for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). For the reasons below, we will deny the petition.

                                             I.

       The parties are familiar with the facts and procedural history, so we will only

briefly revisit them here. Brown is a 28-year-old native and citizen of Ghana and was

born in Cape Coast on December 8, 1976. In 1996, he graduated from a technical school

where he had studied air conditioning and refrigeration. He later moved to Sierra Leone,

but returned to Cape Coast in or about 1998 when civil unrest in Sierra Leone escalated.

       In October 2000, Brown ran into various problems in Cape Coast and moved to his

mother’s hereditary village of Amoma, Ghana, which is located six or seven hours from

Cape Coast by automobile. One day in November 2000, while Brown was in his bedroom

with his girlfriend, a group of fetish priests from the Tutuase tribe came into his house




                                             2
and dragged him to the street.1 There, they bound his arms and legs and sprinkled his

body with a white powder, which Brown testified was the traditional way of anointing a

new chief fetish priest. Brown’s uncle had been the village’s chief fetish priest and

Brown was next in line to succeed him. Unbeknownst to Brown, his uncle had recently

passed away and, in accordance with Tutuase tradition, his death had been kept a secret.

       Brown was then carried to a specific location in the bush, where he was to remain

alone for seven days without food or water. If he survived, he would undergo a

ceremonial baptism and become the new chief fetish priest. He was told that in order to

become the new chief priest, however, he had to be a “natural” man, which means that he

had to be uncircumcised. If he was “unnatural,” i.e., circumcised, he would be killed.

According to Tutuase tradition, he would not be inspected until the baptism ceremony at

the end of the seven days.

       Brown was in fact circumcised as a child. He was raised Christian and presently

belongs to the Mormon Church. Before the IJ, Brown testified that he did not want to be

a fetish priest, but that he would not be allowed to refuse because it was a hereditary

position. Indeed, Brown testified that if he does not become the new priest and remains

alive, the hereditary line will be broken. The local followers will have to wait ten years,




   1
      Brown calls these men “religious police,” and we will also refer to them by this term.
It is important to note, however, that there is no suggestion that these men actually had
any government authority. We interpret the use of the term “police” by Brown to refer to
the function and authority of these men within the religion.

                                             3
sacrifice two cows and prepare the blood of a leopard to start a new lineage for the high

priest succession.

       While Brown was in the bush, his girlfriend returned to Cape Coast and told his

mother what had happened. Brown’s mother realized that he would be killed when the

other fetish priests discovered that he was circumcised, so she sent his brother to rescue

him. On the fifth day of his captivity in the bush, Brown was rescued by his brother and a

friend, along with some other men from the village who were enlisted to help.

       After his rescue, Brown and his brother moved to Cote d’Ivoire in December 2000,

and remained there for five months. They then flew to Mexico, intending to seek asylum

in the United States. On June 9, 2001, Brown was apprehended attempting to enter the

United States. He was turned over to the San Ysidro Port Enforcement Team and

interviewed. He was then re-interviewed on June 13, 2001, and served with a notice to

appear on June 20, 2001. On December 12, 2001, Brown filed an application for asylum

and withholding of removal.

       On July 2, 2003, the IJ issued an order denying Brown’s application for asylum,

withholding of removal and relief under CAT. The IJ made an adverse credibility

finding, citing Brown’s untruthful demeanor and inconsistencies between Brown’s

statements to border authorities and his testimony before the immigration court. The IJ

found that Brown had lied in court and filed a frivolous application for asylum. See 8

U.S.C. § 1158(d)(6) (stating that an applicant who files a frivolous application shall be


                                             4
permanently ineligible for relief). The IJ also concluded that Brown’s application would

fail even if he were found credible because: (1) any persecution he faces upon return to

Ghana was not on account of his religion; (2) there is no proof that the government of

Ghana is unwilling or unable to protect Brown; and (3) he can avoid the persecution by

relocating within Ghana.

       Brown subsequently appealed to the BIA. On March 2, 2005, the BIA vacated the

IJ’s adverse credibility finding and the finding of frivolousness, but nonetheless dismissed

the appeal. The BIA found that Brown had failed to demonstrate a well-founded fear of

persecution on account of a protected ground, and it expressly agreed with “the [IJ’s]

determination that the respondent has failed to meet his burden of proof for asylum.”

                                              II.

       We have jurisdiction over an appeal from a final order of the BIA affirming a

decision of the IJ to deny an alien’s asylum application. 8 U.S.C. § 1252(a)(1); see

Berishaj v. Ashcroft, 378 F.3d 314, 316 (3d Cir. 2004). Although the BIA agreed with

the IJ’s decision to deny relief, it did not expressly adopt or defer to the IJ’s findings. The

BIA instead expressed disagreement with the IJ’s adverse credibility finding, but stated in

a conclusory fashion that Brown had failed to demonstrate either past persecution or a

well-founded fear of future persecution if he were returned to Ghana. In cases such as

this – where the BIA merely expresses agreement with the IJ’s ultimate disposition, but

does not indicate that it is deferring to or relying upon the IJ’s findings – the final order


                                               5
we review is the decision of the BIA, not the decision of the IJ. See Voci v. Gonzales,

409 F.3d 607, 612 (3d Cir. 2005).

         We review the BIA’s factual findings, including its determination of whether an

alien has a well-founded fear of future persecution, under the substantial evidence

standard. Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004). Under that standard, this

Court will uphold the findings of the BIA unless the evidence “not only supports a

contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-484 (3d Cir.

2001).

          The Attorney General has the discretionary power to grant asylum to an alien who

qualifies as a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. §

1158(b)(1). A refugee is “any person who is outside any country of such person’s

nationality . . . and who is unable or unwilling to return to, and 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). In order to

qualify as persecution for purposes of asylum, the alien must therefore show that: (1) the

harm he or she faces is sufficiently severe to qualify as persecution; (2) it is “on account

of” one of the statutorily-enumerated grounds; and (3) it is “committed either by the

government or by forces that the government is either unable or unwilling to control.”

See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003). The alien bears the burden


                                              6
of proving eligibility for asylum. 8 C.F.R. § 208.13(a).

       The threshold for establishing eligibility for withholding of removal and eligibility

under CAT is even higher than that for establishing entitlement to asylum. See

Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); Wang v. Ashcroft, 368 F.3d 347,

349 (3d Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)).

                                             III.

       As noted above, to establish eligibility for asylum, Brown must demonstrate that

the persecution he faces will be “committed either by the government or by forces that the

government is either unable or unwilling to control.” Mulanga, 349 F.3d at 132; see also

Abdille, 242 F.3d at 494. Where violence is “primarily wrought by fellow citizens” rather

than “government action or acquiescence,” an application for asylum will be denied. Lie

v. Ashcroft, 396 F.3d 530, 537-538 (3d Cir. 2003).

       Here, the evidence presented simply does not compel the conclusion that the

Ghanian government is unable or unwilling to protect Brown from the Tutuase “religious

police.” We have examined the entire record and we can only find two instances where

Brown asserted that the government of Ghana was unable or unwilling to protect him.

First, in his application for asylum and withholding of removal he states:

       The government of Ghana will not intervene on my behalf. We are talking
       about a tribal religious matter, and the custom in Ghana is that each tribe is
       independent as to its handling of its religious beliefs. Even if it results in
       the death of a member for violation of it, the government will not intercede
       on a citizen’s behalf. (App. At 285.)


                                              7
       Second, during the June 13, 2001 credible fear interview Brown was asked

whether the Ghanian authorities can help him. His response was: “No, they do not get

involved in these matters. They would not be able to protect me because they would

respect the traditions and laws of this religion.” (App. at 185.)

       We are not persuaded that these two bald assertions, neither of which were a part

of Brown’s testimony before the IJ, are sufficient to establish the requisite governmental

nexus. Brown never testified or suggested that he sought protection of the government or

that such protection was not afforded him when it was sought. He has not referred us to

any country reports, newspaper articles or other objective evidence indicating that the

Ghanian government’s deference to traditional religious practices is so great that it would

not intervene on his behalf to prevent Tutuase “religious police” from abducting and

ultimately murdering him. Indeed, the objective evidence in the record is to the contrary.2



   2
      For example, the Department of State’s Country Report on Human Rights Practices
in Ghana for 2002 states that Ghanian law prohibits involuntary servitude and that
government agencies have campaigned actively against Trokosi, which is a traditional
form of religious servitude where young women are forced to serve fetish priests for up to
three years. The Department of State’s Country Report on Human Rights Practices in
Ghana for 2001 also recounts an incident in 2000 where the government forcibly
immunized children at an Apostolic Faith of Kpalexose church against polio even though
their faith forbids the use of orthodox medicine. These instances of government
intervention undermine Brown’s contention that the Ghanian government refuses to
interfere in traditional religious affairs. Moreover, even if we were to assume that the
Ghanian government would be hesitant to intervene in the religious affairs of the rural
village of Amoma, there is no evidence that the Ghanian government would show the
same indifference if Tutuase “religious police” came to the relatively metropolitan city of
Cape Coast, which is six or seven hours by car from Amoma, to abduct and potentially
murder Brown. Cf. 8 C.F.R. § 208.16(b)(1)(i)(B) (providing that a presumption of future

                                              8
We therefore find that the BIA’s decision denying asylum is supported by substantial

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

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

                                            IV.

       Having concluded that Brown failed to establish the requisite governmental nexus,

we will not address the Government’s argument that Brown was not persecuted “on

account of” one of the statutorily-enumerated factors. We have considered all the

contentions presented by the parties and conclude that no further discussion is necessary.

The petition for review will be denied.




persecution may be rebutted if the Government shows that the applicant could avoid
future harm by relocating to a different part of the country).

                                             9
