FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 19, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-16507

________________________

Agency No. A098-854-993

THIERNO DIALLO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(February 19, 2010)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

Thierno Diallo, a native of Guinea, petitions this court for review of the

Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) order of removal. In this case, we consider whether a credible death threat

made in person by one with the ability to carry out that threat rises to the level of

persecution. Because we conclude that it does, we vacate and remand to the BIA

for further factual findings.

I. Background

Diallo entered the United States from the Netherlands in 2004 as part of the

Visa Waiver Program. In 2005, Diallo was referred to the IJ for an “asylum only”

determination after he violated the terms of the Visa Waiver Program by remaining

in the United States after the expiration of the waiver, 8 U.S.C. § 1187(a), (b). In

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his asylum application, Diallo alleged that he was arrested at a meeting of the

Ready People of Guinea(“RPG”), he and his father were taken from the meeting

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and detained eleven hours before Diallo was able to escape, his brother was killed

by soldiers, and his father’s whereabouts were unknown.

At the hearing, Diallo testified that he attended an RPG meeting with his

father and brother to oppose the Guinean government in February 2001. After

armed soldiers arrived at the meeting to arrest the protestors, a fight between the

Diallo’s unexhausted and abandoned CAT claims are not properly before us. See 1

Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001) (holding that claims

not raised before the BIA are not exhausted); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228

(11th Cir. 2005) (explaining that claims not raised before this court are abandoned). 

The State Department CountryReports identify the RPG as the Rally of People of Guinea. 2

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soldiers and the RPG members erupted. Diallo’s brother was killed, and Diallo

and his father were beaten. The soldiers then took the protestors, including Diallo

and his father, to another location, where they were photographed, registered,

detained, and warned that they would be executed the following day. Before the

soldiers could carry out their threat, Diallo escaped. He went to a friend, who

treated his injuries and helped him flee Guinea. Diallo went to Sierra Leone,

where he worked as a landscaper and in the diamond mines. He left Sierra Leone

in 2004 due to violence in that country.

In support of his asylum application, Diallo submitted several articles

concerning the violence in Guinea between soldiers and protestors, which had

resulted in the deaths of a number of protestors. He also submitted the State

Department Country Reports. According to the 2005 Report, soldiers were

responsible for killing protestors and beating civilians. The Report also noted that

members of the RPG had been arrested and detained in 2004. The Report stated,

however, that the government had permitted opposition rallies more liberally than

in past years, and that a RPG leader had been able to travel throughout the region

without government interference. Diallo also submitted reports from Amnesty

International, including a 2006 report stating that security forces were responsible

for several deaths in 1998 and 2001, and that opposition leaders had been arrested

and protestors had been beaten in 1998.

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The IJ denied relief, finding, inter alia, that the single incident of a brief

detention and minor beating did not rise to the level of persecution. The IJ then

found that Diallo did not have an objectively reasonable well-founded fear of

future persecution because he could have relocated internally. Diallo appealed to

the BIA, which concluded, relevant to this appeal, that the alleged incident did not

rise to the level of persecution. The BIA did not address the IJ’s relocation

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finding.

In his petition for review, Diallo challenges the IJ’s and BIA’s conclusions

that he failed to establish past persecution or a well-founded fear of future

persecution. He further asserts that the IJ erroneously concluded that he could

have relocated within Guinea.

II. Standard of Review

Where, as here, the BIA issues its own opinion and does not adopt the IJ’s

opinion, we review the BIA’s decision. Rodriguez Morales v. U.S. Att’y Gen., 488

F.3d 884, 890 (11th Cir. 2007). To the extent that the decision was based on a

legal determination, our review is de novo. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,

1254 (11th Cir. 2006); D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th

Cir. 2004). Factual determinations are reviewed under the substantial evidence

The BIA did not affirm the IJ’s decision regarding the timeliness of the application, the 3

adverse credibility determination, the denial of discretionary relief, or the IJ’s finding that there was

no nexus between the events and a statutorily protected ground. 

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test, and we “must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (quotation and

internal marks omitted). Additionally, “[u]nder the substantial evidence test, we

review the record evidence in the light most favorable to the agency’s decision and

draw all reasonable inferences in favor of that decision.” Ruiz, 440 F.3d at 1255

(citing Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)).

Thus, “a finding of fact will be reversed only when the record compels a reversal;

the mere fact that the record may support a contrary conclusion is not enough to

justify a reversal of the administrative findings.” Id. (quotation omitted).

III. Analysis

The Attorney General has discretion to grant asylum if an alien meets the

INA’s definition of “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA

defines “refugee” as follows:

[A]ny 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 . . . political opinion.

8 U.S.C. § 1101(a)(42)(A)-(B). The asylum applicant bears the burden of proving

refugee status. Al Najjar, 257 F.3d at 1284. To meet this burden, the alien must,

with specific and credible evidence, establish (1) past persecution on account of a

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statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor

will cause such future persecution. 8 C.F.R. § 208.13(a)-(b); Al Najjar, 257 F.3d at

1287. “[O]nly in a rare case does the record compel the conclusion that an

applicant for asylum has suffered past persecution or has a well-founded fear of

future persecution.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir.

2006).

If the alien establishes past persecution, he is presumed to have a wellfounded fear of future persecution unless the government can rebut the

presumption by showing, by a preponderance of the evidence, that: (1) there has

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

nationality such that the applicant no longer has a well-founded fear of persecution

because of a statutorily-protected ground; or (2) the applicant could avoid future

persecution by relocating to another part of the applicant’s country of nationality

and, under all the circumstances, it would be reasonable to expect the applicant to

do so. 8 C.F.R. § 208.13(b)(1)(i)(A)-(B) (2005).

Not all “exceptional treatment” constitutes persecution. Zheng v. U.S. Att’y

General, 451 F.3d 1287, 1290 (11th Cir. 2006). Rather, persecution is “an extreme

concept, requiring more than a few isolated incidents of verbal harassment or

intimidation, and . . . mere harassment does not amount to persecution.” Id.

(quotation omitted). “In determining whether an alien has suffered past

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persecution, the IJ [and the BIA] must consider the cumulative effects of the

incidents.” Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007). A

brief detention coupled with minor bruising does not establish persecution.

Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1174 (11th Cir. 2008).

By contrast, “intentionally being shot at in a moving car multiple times”

constitutes past persecution, regardless of whether the attack is successful.

Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007); cf. De

Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008-10 (11th Cir. 2008) (finding

persecution where alien received numerous death threats, was dragged by her hair

out of her vehicle, and was later kidnaped and beaten); Niftaliev v. U.S. Att’y Gen.,

504 F.3d 1211, 1217 (11th Cir. 2007) (finding that the cumulative effect of

numerous beatings, arrests, searches, and interrogations, culminating in a

fifteen-day, food-deprived detention, compelled a finding of past persecution);

Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257-58 (11th Cir. 2007) (concluding the

petitioner suffered persecution where he was the target of attempted attacks over an

eighteen-month period, received multiple death threats, and was physically

attacked twice, once when a large rock was thrown at him and once when members

of the FARC broke his nose with the butt of a rifle); Delgado, 487 F.3d at 859-61

(finding persecution based on cumulative effect of two beatings, continued

threatening phone calls, and two instances of the alien’s car being vandalized with

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political graffiti); Ruiz v. U.S. Att’y Gen., 479 F.3d 762, 763-64 (11th Cir. 2007)

(concluding that petitioner suffered past persecution where the petitioner received

threatening phone calls, was beaten on two separate occasions, and was kidnaped

for eighteen days by the FARC, during which time he also suffered severe

beatings).

Here, Diallo suffered a minor beating and was detained for eleven hours.

This, by itself, would not compel us to reverse the BIA’s decision. “We may

consider a threatening act against another as evidence that the petitioner suffered

persecution where that act concomitantly threatens the petitioner.” De Santamaria,

525 F.3d at 1009 n.7. In this case, Diallo was also threatened with death by the

same soldiers who had already killed his brother. He was able to avoid the same

fate as his brother by escaping.

Moreover, the violence accompanying a credible death threat need not

successfully accomplish its goal. A credible death threat by a person who has the

immediate ability to act on it constitutes persecution regardless of whether the

threat is successfully carried out. Sanchez Jimenez, 492 F.3d at 1233. In Diallo’s

case, we are presented with such a set of facts, and on these facts, we are

compelled to conclude that Diallo suffered past persecution. We can see no reason

why Diallo should have had to stay in his country–awaiting his death at the hands

of the soldiers who killed his brother–to succeed on his claim of past persecution.

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To the contrary, we conclude that the government’s failure to carry out its credible

death threat does not defeat Diallo’s claim of past persecution.

Our inquiry does not end there, however. Past persecution creates a

presumption of a well-founded fear of future persecution, which the government

may rebut with evidence of changed country conditions or the ability to relocate.

Here, the IJ considered whether Diallo could have relocated, a finding that Diallo

challenged before the BIA but which the BIA did not address. Because our review

is limited to the BIA’s decision, and the question of relocation is a factual one, we

vacate and remand with instructions for the BIA to consider whether the

government can rebut the presumption of future persecution with evidence of

changed country conditions or Diallo’s ability to relocate. Gonzales v. Thomas,

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547 U.S. 183 (2006); INS v. Orlando Ventura, 537 U.S. 12, 16 (2002); Calle v.

U.S. Att’y Gen., 504 F.3d 1324, 1330 (11th Cir. 2007).

VACATED and REMANDED.

Because we remand on this ground, we do not consider Diallo’s claim of future 4

persecution. 

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