2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2011

Mohammed Dolley v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1804

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 10-1804

_____________

MOHAMMED ABDOULAYEE DOLLEY, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent 

_____________

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No.A089-190-416)

Immigration Judge: Honorable Dorothy Harbeck

_____________ 

Argued July 12, 2011

Before: RENDELL, SMITH and FISHER, Circuit Judges.

(Opinion Filed: July 28, 2011)

_____________

Sarah L. Cave. Esq.

Michael Tiger, Esq. [ARGUED]

Hughes, Hubbard & Reed

One Battery Park Plaza

New York, NY 10004

 Counsel for Petitioner

Jacob A. Bashyrov, Esq.

Eric H. Holder, Jr., Esq.

Thomas W. Hussey, Esq.

John J. W. Inkeles, Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation, Civil Division
2

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

 

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

Petitioner Mohammed Abdoulayee Dolley seeks review of a final order of 

removal by the Board of Immigration Appeals (“BIA”) pursuant to 8 U.S.C. § 1252(b). 

He contends that the Immigration Judge (“IJ”), whose decision the BIA affirmed without 

opinion, erred in denying his application for asylum under 8 U.S.C. § 1158, withholding 

of removal pursuant to 8 U.S.C. § 241(b)(3), and for relief under the Convention Against 

Torture, 8 C.F.R. § 1208.16(c). We will deny his Petition.

I.

We write solely for the benefit of the parties and presume their familiarity with the 

factual context and procedural history of this case. Dolley, a Liberian national, returned 

to his hometown of Ganta City in September 2006, having previously fled to neighboring 

Guinea in 2003 to escape a decades-long civil war that was motivated in part by 

animosity between the Mandingo and Mano ethnic groups. Upon his return, Dolley, a 

Mandingo, discovered that his family‟s land had been occupied by several Mano, and his 

family‟s home had been destroyed and replaced with temporary settlements. Dolley 

testified that unspecified Manos on the street and Mano squatters on his land threatened 

and taunted him and other Mandingos.
3

At the same time, the Liberian government established a Land Reform 

Commission to address the frequent land disputes between Mandingos and Manos. This 

Commission visited Ganta City in late 2007, and Dolley sought to reclaim his land and 

presented the Commission with a copy of the deed to his land, which he had obtained 

from his mother in Guinea. The Commission ordered that no construction should occur 

on the disputed land while it resolved the claim. In spite of the order, a Mano named 

William Jalla began constructing a permanent structure on Dolley‟s land in March 2008, 

and refused to halt construction after Dolley confronted his contractor with the 

Commission‟s order. Dolley and several Mandingos then destroyed the structure. Jalla 

pressed charges against Dolley for the destruction, but a magistrate judge released Dolley 

on bond. A week later, several Mano approached Dolley‟s girlfriend and told her they 

were going to kill him, and five men came to Dolley‟s temporary home the same night, 

called him a criminal, and chased him when he attempted to escape. 

Dolley fled to his cousin‟s house in Monrovia, the national capital, and resided 

there from March to September 2008. During that time, Dolley visited a Monrovia 

market frequented by travelers from Ganta, where he encountered Jalla. Jalla assaulted 

Dolley and threatened to kill him, and Dolley fled to a police station. As a result of this 

incident, Dolley‟s cousin procured a United States lawful permanent resident card and 

Liberian passport for Dolley in the name of another individual, and Dolley flew to New 

York, where he was detained.

At his hearing, Dolley presented his birth certificate, which his cousin had 

procured for him while Dolley was in detention, to corroborate his identity, but offered 
4

no other corroboration for his testimony. After a two-day merits hearing, the IJ found 

Dolley credible, but denied his claims for relief on grounds that he had failed to 

corroborate his claims and did not provide an explanation for his failure to do so. The IJ 

next observed that Dolley had failed to demonstrate past persecution based on the two 

incidents in which Dolley was directly threatened, holding that Dolley‟s fear of harm was 

grounded in a personal dispute related to property rights. The IJ found the remainder of 

Dolley‟s claims of persecution insufficiently substantial or imminent to constitute past 

persecution or to serve as a basis for a finding of a well-founded fear of future 

persecution. The IJ also determined that Dolley‟s fear of persecution was not countrywide as he had not established that the Liberian government was unable or unwilling to 

protect him or an inability to reasonably relocate to another part of Liberia.

The IJ likewise denied Dolley‟s request for relief under the more stringent 

requirements for withholding of removal and the Convention Against Torture in light of 

his inability to prove that he is more likely than not to be subject to persecution or torture 

if removed to Liberia. The BIA affirmed without opinion pursuant to 8 C.F.R. 

§ 1003.1(e)(4).

II.

Because the Board summarily affirmed and adopted the IJ‟s decision, we review 

the latter decision. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). The IJ‟s 

credibility determinations and findings of fact are evaluated under the substantial 

evidence standard, and we “will not disturb the IJ‟s [findings] if they are supported by 

reasonable, substantial and probative evidence on the record considered as a whole.” Id.
5

(citation & quotations omitted). “Under this deferential standard, the IJ‟s finding must be 

upheld unless the evidence not only supports a contrary conclusion, but compels it.” 

Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007) (citation & quotations omitted).

As a general principle, an asylum applicant possesses the burden of demonstrating

his entitlement to relief as a “refugee” by establishing that he is “„unable or unwilling to 

return to, and is unable or unwilling to avail himself or herself of the protection of, [his 

country of nationality] 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.‟” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir. 2007) (quoting 

8 U.S.C. § 1101(a)(42)). To establish past or future persecution, “an applicant must 

„show past or potential harm rising to the level of persecution on account of a statutorily 

enumerated ground that is committed by the government or by forces the government is 

unable or unwilling to control.‟” Kibinda, 477 F.3d at 119 (citation omitted).

Dolley avers that his testimony of physical mistreatment and economic deprivation 

satisfied this threshold for a finding of past persecution, and contends that the IJ 

improperly required corroboration of relevant facts despite finding Dolley credible. We

disagree. Under the governing statute, “[w]here the trier of fact determines that the 

applicant should provide evidence that corroborates otherwise credible testimony, such 

evidence must be provided unless the applicant does not have the evidence and cannot 

reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Corroboration may 

reasonably be expected where “the facts are central to the applicant‟s claim and easily 

subject to verification,” and we defer to the trier of fact‟s “conclusive” findings on 
6

availability of corroborating evidence unless we find “that a reasonable trier of fact is 

compelled to conclude that such corroborating evidence is unavailable.” Id.

§§ 1252(b)(4)(B), (D)). We have consistently held that “failure to produce corroborating

evidence may undermine an applicant‟s case where (1) the IJ identifies facts for which it 

is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to 

corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. 

Att’y Gen., 484 F.3d 185, 191 (3d Cir. 2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 

554 (3d Cir. 2001)). 

Here, the IJ engaged in the Abdulai inquiry, identifying the facts for which the 

expectation of corroboration was reasonable – evidence pertaining to the land ownership

dispute – and discussed Dolley‟s failure to corroborate said facts. Furthermore, under

Abdulai‟s third prong, the IJ provided Dolley ample opportunity at the hearing to explain 

his failure to obtain the corroborating evidence, expressly inquiring why Dolley had not 

attempted to acquire corroboration of his deed and noting that the lack of corroboration –

or sufficient explanation as to its absence – undermined Dolley‟s request for asylum. 

This factual finding is supported by substantial evidence as “[t]here is nothing in the 

record to suggest that a „reasonable trier of fact‟ would be „compelled to conclude that 

corroborating evidence is unavailable.” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 

2005) (quoting 8 U.S.C. § 1252(b)(4)) (emphasis added). Accordingly, we find no error 

in the IJ‟s ruling in this regard.1

 

1 Because the IJ properly performed Abdulai‟s three-step inquiry, she was not required 

to provide notice of the corroboration she expected or to continue the hearing so that 

Dolley could obtain such evidence. Dolley conceded the centrality of the land deed to his 
7

As mentioned, threats rising to the level of persecution “must be on account of a 

statutorily protected ground,” and “we have refused to extend asylum protection for 

threats that, while sinister and credible in nature, were not highly imminent or concrete or 

failed to result in any physical violence or harm to the alien.” Chavarria v. Gonzales, 

446 F.3d 508, 518 (3d Cir. 2006) (citation omitted). Here, the several threats by various 

Mano towards Dolley upon his return to Ganta City were “sinister and credible,” and may 

have been based on Dolley‟s Mandingo status. These general threats, however, were 

directed at all returning Mandingos, were “not highly imminent or concrete,” and 

notably, did not result in any physical violence or harm until Dolley proactively 

destroyed Jalla‟s construction. See id. As such, we find no error in the IJ‟s rejection of 

Dolley‟s claim that these threats rose to the level of persecution.

At the same time, Dolley testified to two incidents in which, he urges, he was 

directly in danger: (1) when he was threatened and chased by Jalla and other Mano at his 

home, and (2) when he unexpectedly met and was assaulted by Jalla in a Monrovia 

market. The IJ concluded that this asserted mistreatment related to a personal dispute 

and, therefore, did not constitute persecution on account of a protected ground. 

“[A]sylum may not be granted if a protected ground is only an „incidental, tangential, or 

superficial‟ reason for persecution of an asylum applicant,” and “factually intertwined 

 

claim and appreciated the need for corroboration, but, when asked by the IJ, he failed to 

sufficiently explain his failure to produce the deed despite his cousin‟s residence in the 

same city as the government registry office where the deed was lodged. Under these 

circumstances, notice would have been pointless. At the same time, a continuance was 

unwarranted since the IJ afforded Dolley an opportunity during the hearing to explain 

why he was unable to produce the corroborative evidence. At that point, the IJ could 

properly weigh, in lieu of the absent corroborative evidence, Dolley‟s explanation in 

deciding whether he had satisfied his burden of proof.
8

explanations for persecution are irrelevant where the proximate motivation for 

mistreatment of an applicant is not a protected ground.” Ndayshimiye v. Att’y Gen., 557 

F.3d 124, 130, 132 (3d Cir. 2009) (citation omitted). In turn, we have opined that

“retaliation in response to a personal dispute” does not present a sufficient nexus between 

persecution and one of the protected grounds. Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d 

Cir. 2003). 

Here, the apparent “proximate motivation” for Dolley‟s mistreatment was his 

destruction of Jalla‟s construction on the disputed land. The record provides that while 

Jalla had never threatened Dolley in the five months prior to Dolley‟s destruction of 

Jalla‟s structure, only after the destruction did Jalla and a group of Manos call Dolley a 

“criminal,” and chase and assault him. This retaliation supports the IJ‟s reasoning that 

the asserted mistreatment was “fundamentally a personal dispute,” and Dolley‟s 

Mandingo status was merely “an incidental factor in [his] persecution.” Ndayshimiye, 

557 F.3d at 130, 132. Accordingly, substantial evidence does not “compel” a contrary 

conclusion to the one reached by the IJ. See Kibinda, 477 F.3d at 119.2

Moreover, for mistreatment perpetrated by private actors to rise to the level of 

persecution, “the petitioner has the burden to prove that it was conducted by forces the 

 

2 Dolley‟s secondary argument that his loss of income from the disputed land 

constituted economic persecution likewise fails. We have previously held that “the 

deliberate imposition of severe economic disadvantage which threatens a petitioner‟s life 

or freedom” may be sufficient to constitute persecution. Li v. Att’y Gen., 400 F.3d 157, 

168 (3d Cir. 2005). Yet Dolley‟s tenuous – and potentially temporary – loss of income 

from the land has not deprived him of “liberty, food, housing, employment, and other 

essentials of life.” Id. Additionally, the Liberian government is attempting to address his 

loss through a legal process by way of the Land Commission. As such, Dolley‟s situation 

does not reflect the “severe economic disadvantage” necessary for a finding of economic 

persecution.
9

government is unable or unwilling to control.” Valdiviezo-Galdamez, 502 F.3d at 288 

(citation & quotations omitted). Because Dolley does not allege that the Liberian 

government is persecuting him, he had to demonstrate that the government was unable or 

unwilling to protect or assist him in recovering the disputed property from a small group 

of Mano. As the IJ determined, Dolley failed to make such a showing in light of the 

efforts undertaken by the Liberian government to remedy the ethnic disputes between the 

various groups, and the specific involvement of the Land Commission and the local 

Mano magistrate in adjudicating Dolley‟s claim. (App‟x 16, 472-73, 479); see also 

Khilan v. Holder, 557 F.3d 583, 586 (8th Cir. 2009) (“[E]vidence of general problems of 

ineffectiveness and corruption do not alone require a finding that the government is 

„unable or unwilling‟ where the evidence specific to the petitioner indicates the contrary 

to be true.”). Moreover, Dolley does not indicate that he actually reported any imminent 

threats or violence to the police, making it difficult for him to contend that the 

government was unable or unwilling to prevent persecution. See, e.g., Aliyev v. Mukasey, 

549 F.3d 111, 119 (2d Cir. 2008). As a result, we discern no error in the IJ‟s conclusion 

on this issue.

Finally, Dolley‟s claim of a well-founded fear of future persecution is significantly

undermined by the fact that an applicant‟s fear of persecution must be country-wide, and, 

as the IJ found, Dolley failed to establish that he could not reasonably relocate to another 

part of Liberia unmolested. The governing regulation provides that “[a]n applicant does 

not have a well-founded fear of persecution if the applicant could avoid persecution by 

relocating to another part of the applicant's country of nationality . . . if under all the 
10

circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 

208.13(b)(2)(ii). The record supports the IJ‟s finding that Dolley encountered no threats 

and was entirely unharmed in the Liberian capital city of Monrovia until he came across

Jalla at a market in reference to the particular land dispute. Dolley failed to press this 

issue in his briefing before us, merely arguing that the government bore the burden since 

he had established past persecution. Because the IJ reasonably concluded that Dolley‟s 

experience did not constitute past persecution, he retained the burden of demonstrating a 

well-founded fear of persecution throughout Liberia, which he failed to satisfy. 

Accordingly, Dolley‟s asylum claims cannot succeed.

We will also affirm the IJ‟s denial of withholding of removal and CAT protection, 

but on procedural, rather than substantive, grounds. Section 242(a)(1) of the Immigration 

and Nationality Act provides us with jurisdiction to review final orders of removal, but 

“limits our jurisdiction to cases where a petitioner „has exhausted all administrative 

remedies available as of right . . . .‟” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008) 

(quoting 8 U.S.C. § 1252(a)(1), (d)(1)). “This statutory requirement [is] intended to 

ensure that the BIA has had a full opportunity to consider a claim before it is submitted to 

a federal court, [and] requires that a petitioner „raise and exhaust his . . . remedies as to 

each claim or ground for relief if he . . . is to preserve the right of judicial review of that 

claim.‟” Kibinda, 477 F.3d 113, 120 n.8 (quoting Abdulrahman v. Ashcroft, 330 F.3d 

587, 594-95 (3d Cir. 2003)). 

Here, the record confirms that Dolley did not contest the IJ‟s denial of his petition

for withholding of removal and for CAT protection in his appeal to the BIA, thereby 
11

failing to raise “each claim or ground for relief” for which he presently seeks our review. 

Id.; (see also App‟x 51-80.) This “failure to present an issue to the BIA constituted a 

failure to exhaust, thus depriving us of jurisdiction to consider it.” Lin, 543 F.3d at 126. 

Curiously, both parties contend that the BIA‟s affirmance of the IJ‟s decision

without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4), satisfied the exhaustion requirement

of § 242(d)(1) because, as we noted in Lin, “[w]here the BIA has issued a decision 

considering the merits of an issue, even sua sponte, [exhaustion requirements] have been 

fulfilled.”3 543 F.3d at 125. Our holding in Lin, however, is entirely distinguishable 

from the instant procedural posture. There, we were persuaded by the Tenth Circuit‟s 

reasoning that exhaustion may be satisfied despite a petitioner‟s failure to raise an issue 

before the BIA where the Board “„issues a full explanatory opinion or a discernible 

substantive discussion on the merits over matters not presented by the alien,‟” and 

conducts “an independent review of the record and [ ] exercise[s] its own discretion in 

determining its agreement with the reasoning and result of the IJ.” Id. at 125-26 (quoting 

Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)). However, we explicitly

differentiated cases in which “„the BIA summarily affirms the IJ decision in toto without 

 

3

8 C.F.R. § 1003.1(e)(4)(i) provides:

The Board member to whom a case is assigned shall affirm the decision of the 

Service or the immigration judge, without opinion, if the Board member 

determines that the result reached in the decision under review was correct; that 

any errors in the decision under review were harmless or nonmaterial; and that 

(A) The issues on appeal are squarely controlled by existing Board 

or federal court precedent and do not involve the application of 

precedent to a novel factual situation; or 

(B) The factual and legal issues raised on appeal are not so 

substantial that the case warrants the issuance of a written opinion in 

the case.
12

further analysis of the issue,‟” or “issue[s] a one-member streamlined opinion under 8 

C.F.R. § 1003.1(e)(4).” Id. (quoting Sidabutar, 503 F.3d at 1122 (agreeing to jurisdiction 

because the “BIA sufficiently considered the applicant‟s two unraised claims in its final 

order” after a thorough explanatory opinion, but emphasizing that this exhaustion 

principle should be “construed narrowly” and would not apply to a simple affirmance 

without opinion under 8 C.F.R. § 1003.1(e)(4))). As such, although we did not specify 

“the precise limitations” of this exhaustion principle, our holding in Lin is a limited one.

Here, unlike Lin, the BIA affirmed without opinion under 8 C.F.R. § 1003.1, 

offering no analysis on the merits, and did not address “the issue[s] independently from 

the IJ [to] ensure [ ] that the record is adequate for our review.” 543 F.3d at 125 (citing

Weinberger v. Salfi., 422 U.S. 749, 765 (1975)). Accordingly, we lack jurisdiction to 

consider Dolley‟s unexhausted withholding of removal and CAT claims.

III.

For the foregoing reasons, we will deny Dolley‟s Petition for Review.