                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              May 4, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    AMADOU W. DIALLO,

              Petitioner,

    v.                                                    No. 05-9538
                                                       (No. A97-622-820)
    ALBERTO GONZALES, Attorney                        (Petition for Review)
    General of the United States,

              Respondent.




                             ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.


         Amadou W. Diallo seeks review of a final order of removal issued by the

Board of Immigration Appeals (“BIA”), which affirmed a decision by an

immigration judge (“IJ”) denying his requests for asylum, restriction on removal, 1

*
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1
     Although the parties and the agency refer to “withholding of removal,”
                                                                       (continued...)
and relief under the Convention Against Torture (“CAT”). We GRANT the

petition for review, VACATE the final order of removal, and REMAND for

further proceedings.

                                              I

      Diallo is a native and citizen of Mauritania, a country in northwestern

Africa. He was born in 1970 in the Brakna region of southern Mauritania near the

Senegal River, which runs along the border between Mauritania and Senegal. In

1989, the politically dominant White Moors, who are of Arab and Berber descent,

assisted by the Black Moors, whom the White Moors historically have enslaved,

expelled from Mauritania approximately 75,000 people of various African

ancestries. In the process, many non-Moorish Mauritanians were assaulted,

imprisoned, killed, or lost their property.

      Diallo is a member of the largest non-Moor ethnic group in Mauritania,

known as the Fulani or Halpulaar. Diallo claims that, as part of the ethnic

conflict in 1989, Moorish soldiers came to his house and arrested his father and

sister. While trying to help his sister, he was beaten unconscious and his teeth

were knocked out. He awoke in a military camp where he was detained, beaten



1
 (...continued)
“restriction on removal” is the term generally applied to requests filed after the
effective date of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996. See Yan v. Gonzales, 438 F.3d 1249, 1251 n.1 (10th Cir. 2006).

                                         -2-
daily, and forced to work. He escaped to Senegal in September 1989 and lived

there until 2002. He was able to locate his mother in 1995, but he never saw his

father or sister again and believes they were killed.

      In Senegal, Diallo met a Senegalese businessman, Amadou Ba, who

arranged for Diallo to board a plane that Diallo thought was headed for Paris.

However, the plane landed in New York City, where Diallo was admitted into the

country without a valid passport or visa. He made his way to Colorado and, after

being served a notice to appear before an IJ, he applied for asylum, restriction on

removal, and relief under the CAT.

      In ruling on Diallo’s claims, the IJ incorrectly characterized Diallo as a

Black Moor, one of the persecuting ethnic groups in Mauritania, rather than as a

Fulani, one of the persecuted groups. Nevertheless, the IJ found that his claim of

past persecution was credible. However, the IJ also found that, because Diallo

had firmly resettled in Senegal prior to arriving in the United States, he was no

longer a refugee and therefore ineligible for asylum. In the alternative, the IJ

found that conditions in Mauritania have fundamentally changed such that he no

longer has a well-founded fear of future persecution. On these grounds, the IJ

denied the application for asylum and restriction on removal. He also denied

Diallo’s request for relief under the CAT. He ordered Diallo removed to Senegal

or, in the alternative, to Mauritania. The BIA disagreed with the IJ’s conclusion


                                         -3-
that Diallo had firmly resettled in Senegal. Specifically, the BIA found that

because of Diallo’s refugee status, the only work he could find in Senegal was

herding cattle in exchange for food, and that the Senegalese government would

not permit him to register his marriage. Nonetheless, the BIA affirmed the IJ’s

decision on the ground of changed country conditions in Mauritania. This appeal

followed. 2

                                         II

      The BIA’s decision was written by one board member and contains the

BIA’s reasoning. Therefore, it is the type of decision described in 8 C.F.R.

§ 1003.1(e)(5) rather than the summary affirmance described in 8 C.F.R.

§ 1003.1(e)(4). See generally Uanreroro v. Gonzales,        F.3d    , No. 04-9537,

2006 WL 895240, at *5 (10th Cir. Apr. 6, 2006) (explaining the nature of a

decision issued under 8 C.F.R. § 1003.1(e)(5) and the scope of our review).

Accordingly, to the extent it provides an adequate basis for meaningful review,

we review the BIA’s decision, not the IJ’s decision. See Cruz-Funez v. Gonzales,

406 F.3d 1187, 1190-91 (10th Cir. 2005). If the BIA’s decision is lacking, we

may look to the IJ’s decision if it provides an adequate basis for meaningful


2
  Diallo did not challenge the denial of his request for restriction on removal or
relief under the CAT before the BIA and he has not raised these issues before this
court. He has therefore waived the issues. Tulengkey v. Gonzales, 425 F.3d
1277, 1279 n.1 (10th Cir. 2005).


                                        -4-
review. Id. at 1191. Although largely directed at the IJ’s decision, the parties’

arguments are equally applicable to the BIA’s decision. The IJ’s decision does

not assist in our review because he reached his findings under the clearly

erroneous belief that Diallo was a Black Moor.

      On appeal, we have a “duty . . . to guarantee that factual determinations are

supported by reasonable, substantial and probative evidence considering the

record as a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004).

“[O]ur review is confined to the reasons given by the [agency], and we will not

independently search the record for alternative bases to affirm.” Id. We may

reverse the agency’s factual findings only if the record evidence as a whole would

compel any reasonable fact-finder to reach a different conclusion.

      To be eligible for a discretionary grant of asylum, an alien must first show

that he is a “refugee.” Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir.

2004). To establish refugee status, the applicant must demonstrate that he has

suffered past persecution or has “a well-founded fear of [future] persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A). Although persecution is not

defined in the regulations, we have characterized it as “the infliction of suffering

or harm upon those who differ (in race, religion, or political opinion) in a way

regarded as offensive and requires more than just restrictions or threats to life and


                                         -5-
liberty.” Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (quotation

omitted).

      If an asylum applicant has suffered past persecution, he is presumed to have

a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). This

presumption can be rebutted if a preponderance of the evidence shows that there

has been a fundamental change of circumstances in the applicant’s country such

that the fear of future persecution no longer is well-founded. 8 C.F.R.

§ 208.13(b)(1)(i)(A); Woldemeskel, 257 F.3d at 1189. “Fear of persecution is

well-founded if it is subjectively genuine and objectively reasonable.”

Nazaraghaie v. INS, 102 F.3d 460, 462 (1996). Objective reasonableness

involves a “reasonable possibility” of suffering persecution on return to the

country of persecution. See id. “The Supreme Court has suggested that a one in

ten chance may constitute a ‘reasonable possibility’ of persecution.” Id. (quoting

INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)).

      The BIA cited to 8 U.S.C. § 208.13(b)(1)(i)(A) in connection with its

finding that Diallo no longer has a well-founded fear of future persecution. As

such, the BIA implicitly found that (i) Diallo had established past persecution,

(ii) his fear of future persecution was related to his past persecution, (iii) he was

entitled to and was given the presumption of a well-founded fear of future

persecution, and (iv) the agency rebutted that presumption. We therefore review


                                          -6-
the BIA’s finding that the agency rebutted the presumption that Diallo has a

well-founded fear of future persecution.

      Diallo first takes issue with the IJ’s finding that he is a Black Moor rather

than a Fulani, and argues that this finding implicates the decision of whether he

has a well-founded fear of future persecution. The government concedes that the

IJ’s finding was clearly erroneous. Further, despite the inexcusable error

committed by the IJ – namely, classifying Diallo as a member of the persecuting

ethnic group as opposed to the persecuted group – the BIA did not explicitly

acknowledge Diallo’s correct ethnicity in its decision. Instead, the BIA stated

that, in view of its conclusion that country conditions had changed, all of the IJ’s

factual errors were harmless and immaterial. The error is not harmless or

immaterial. Diallo’s ethnicity was the very basis of his past persecution.

Nevertheless, it seems that the BIA considered Diallo’s proper ethnicity when

making its finding that country conditions have changed.

      Of greater concern is that the BIA did not perform an individualized

assessment of the record evidence and ignored evidence that supports Diallo’s

fear of future persecution. The BIA wrote only two sentences in support of its

finding that country conditions in Mauritania have changed. The first sentence

relies on a 2001 report by the U.S. Committee on Refugees (“2001 USCR

Report”) for the proposition that “conditions in Mauritania have improved


                                           -7-
significantly from the preceding turbulent periods, as evidenced by the 30,000 to

60,000 refugees who returned there in recent years.” The second sentence relies

on the finding in the Department of State’s 2003 Country Report on Human

Rights Practices for Mauritania (“2003 Country Report”) that “while the recovery

of land and identity cards remain unresolved issues for some Mauritanians,

‘[m]any returnees received their original homes, some property, and all or a

portion of their land[.]’”

      We have indicated that “a State Department Report can constitute

substantial evidence supporting the IJ’s decision,” Yuk v. Ashcroft, 355 F.3d

1222, 1236 (10th Cir. 2004), but we have “cautioned that use of such official

report[s] does not substitute for an analysis of the facts of each applicant’s

individual circumstances. Uncontroverted facts may be inapplicable to or of

limited probative value in individual cases and the Board must remain open to this

possibility.” Krastev v. INS, 292 F.3d 1268, 1277 (10th Cir. 2002) (quotation

omitted). The two statements on which the BIA relied concern general country

conditions and are of limited value in determining whether conditions have

changed in Diallo’s region. It is unclear from these statements how many of the

refugees returned to Diallo’s region and how many were able to obtain their

property or identity papers.




                                          -8-
      Not only did the BIA rely exclusively on general statements with little

probative value, it overlooked evidence in the record concerning Diallo’s

individual circumstances that is favorable to him. The 2001 USCR Report states

that local police have been accused of beating returnees in the southern region of

Mauritania. This is particularly important because Diallo is from the southern

region, and his claim of past persecution is based largely on physical abuse by the

government. The 2003 Country Report states that “[t]here were a number of

reports that some government officials misappropriated land under the land

reform system, confiscating the land of southern ethnic groups . . . and

distributing it to their friends and family.” Further, anecdotal evidence is

presented that no more than twenty percent of those intended to benefit under the

land reform program – returnees and victims of desertification – had received

land. Finally, the record indicates that if Diallo is eligible to obtain any land

under the land reform program, he faces significant challenges based on his

ethnicity. All this is in addition to the problem the BIA acknowledged, namely,

the difficulty returnees face in recovering land titles.

      In relying on only general statements as indicators of changed country

conditions and ignoring evidence more specifically applicable to Diallo, the BIA

failed to conduct the individualized review that Krastev requires. Accordingly,




                                          -9-
we conclude that substantial evidence does not support the BIA’s decision, and

the matter must be remanded for further proceedings.

                                        III

          We GRANT the petition for review, VACATE the final order of removal,




and REMAND for further consideration. The stay order entered in this case is

lifted.


                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                        -10-
