FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BABA SOWE, 

Petitioner, No. 06-72938

v. Agency No. 

M A79-569-509 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 9, 2008—Seattle, Washington

Filed August 19, 2008

Before: Arthur L. Alarcón, Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Alarcón

11027
COUNSEL

Mark B. Nerheim, Bauman-Becia Law Group, Seattle, Washington, for the petitioner.

Marion E. Guyton and William C. Erb, Jr., United States

Department of Justice, Office of Immigration Litigation, Civil

Division, Washington, D.C., for the respondent.

OPINION

ALARCÓN, Circuit Judge: 

Baba Sowe, a native and citizen of Sierra Leone, appealed

to the Board of Immigration Appeals (“BIA”) from the denial

of his applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

Sowe presented evidence before an immigration judge (“IJ”)

that he and his family were persecuted by members of the

Revolutionary United Front (“RUF”). We have jurisdiction

over his appeal pursuant to 8 U.S.C. § 1252. We deny Sowe’s

application for withholding of removal and for protection

under CAT. We remand his application for asylum to the BIA

for a hearing to determine his eligibility pursuant to 8 C.F.R.

§ 1208.13(b)(1)(iii)(A). 

I

Sowe entered the United States on or about April 4, 2001.

11030 SOWE v. MUKASEY
On June 2, 2001, Sowe executed an I-589 form seeking asylum and withholding of removal.1

 He also applied for protection under CAT. On October 15, 2004, the INS served Sowe

with a notice to appear, and charged him with removability

because he did not possess or present a valid entry document

when he was admitted to the United States. 

At his removal hearing, Sowe conceded removability.

Sowe testified that he was persecuted by the RUF because he

is a Muslim Maraka and because of his parents’ political affiliations with the United National People’s Party, a group

aligned with the Sierra Leone government. 

Sowe testified that sometime around August 11, 1997, RUF

members came to his family’s home and asked for his father

and brother. AR 58. Sowe testified that the RUF was interested in his family because they were Muslim Marakas who

supported the government. Id. The RUF members took Sowe

to an RUF camp. There he was beaten and forced to do “hard

work in the prison there.” Id. at 60. He testified that he was

beaten because he “didn’t want to tell them where [his] parents were and since they [knew] that [he was] a Muslim

Maraka.” Id. at 60. Sowe testified that he escaped the camp

after three weeks. Id. at 61. 

Sowe testified that members of the RUF returned to his

family’s home on January 10, 1998. AR 62. They forcibly

took him to their camp. There he was forced to do laundry,

clean, and perform hard labor. Id. at 65. He testified that he

was beaten because he is a Muslim Maraka and because he

refused to disclose his father’s location. Id. at 66-67. After ten

days at the camp, Sowe escaped. Id. at 67. 

1Form I-589 is an application for asylum and withholding of removal.

See 8 C.F.R. § 208.3(a) (“An Asylum applicant must file Form I-589,

Application for Asylum and for Withholding of Removal, together with

any additional supporting evidence in accordance with the instructions on

the form.”). 

SOWE v. MUKASEY 11031
Sowe further testified that on March 4, 1999, members of

the RUF returned to his home. Sowe stated that the rebels

“just start[ed] beating me and they took me away again.” Id.

at 68. He testified that the rebels came to his home because

his father was a Muslim Maraka and the imam of a mosque,

and because his family did not support the RUF. Id. On this

date, he was taken by force to an RUF camp because he

refused to tell the RUF where his father was. Id. At the camp,

he was forced to do odd jobs. Id. He escaped after five days.

Id. at 69. 

Sowe testified that members of the RUF returned to his

family’s home on February 10, 2001, and killed his parents.

Id. at 69. On the same date, an RUF rebel “took a machete out

of [his] pocket and . . . . chop[ped Sowe’s brother’s] hand

off.” Id. at 70-71. The rebels seized Sowe’s sister and

removed her from her home. AR 71.2 Sowe escaped and fled

to Freetown. Id. at 72. He later entered the United States on

or about April 4, 2001. Id.

The IJ concluded that Sowe was not a credible witness. The

IJ stated: “I do not find the respondent to be a credible witness

in that, as noted, the Form I-589 is of an extremely skeletal

nature and notwithstanding the passage of so many years, has

not been supplemented by any kind of a statement.” AR 40.

Alternatively, the IJ stated: 

even if we were to accept the respondent’s testimony

as true, I would find that there have been dramatic

changes in Sierra Leone, as noted above, in terms of

the United Nations involvement, the multiple rounds

of elections, the progress that has been made so that

the international presence is being withdrawn and so

2Although both parties assert that Sowe’s sister was raped, that fact was

alleged only in his asylum application, AR 127, and in a letter written by

his sister, attached to his removal proceedings prehearing statement, AR

239. 

11032 SOWE v. MUKASEY
forth, so that under such case law as GonzalezHernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003),

the objective component of the claim can no longer

be established. 

AR 42. The IJ’s findings regarding the changes in Sierra

Leone were based on a 2005 U.S. Department of State Country Report.3

 The IJ denied Sowe’s application for asylum,

withholding of removal, and protection under CAT. The IJ

also noted that Sowe was ineligible for voluntary departure.

Sowe filed a timely appeal with the BIA challenging the IJ’s

decision. 

II

The BIA dismissed the appeal based on the IJ’s alternative

holding that, even if Sowe’s testimony were deemed credible

and demonstrated past persecution, the presumption of future

persecution was rebutted by the evidence in the record reflecting a change in country conditions. It stated: 

We do not find the harm that the respondent claims

to have suffered, that of being detained and beaten

by the RUF, to be sufficiently compelling to support

a grant of asylum in the absence of a well-founded

fear of future persecution (see Matter of Chen, 20

I&N Dec. 16 (BIA 1989); nor do we find there to be

a reasonable possibility that the respondent may suffer other serious harm upon removal to Sierra Leone.

See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B). 

AR 3. The BIA did not review the IJ’s adverse credibility

findings. It stated: “We need not reach the issue whether the

adverse credibility determination was correct.”

4

Id. The BIA

3This report was issued in February of 2005, but describes the conditions in Sierra Leone in 2004. We will refer to it as the “2004 country

report.” 

4The BIA appears to have assumed, for purposes of disposing of Sowe’s

appeal, that he suffered past persecution. It did not decide, however,

SOWE v. MUKASEY 11033
concluded that Sowe had failed to establish his eligibility for

asylum and withholding of removal. It also determined that

Sowe had failed to demonstrate that if removed to Sierra

Leone, he would more likely than not be tortured, as required

for relief under CAT. 

Sowe’s timely petition for review was filed on June 7,

2006.

III

“The BIA’s decision that an alien has not established eligibility for asylum is reviewed for substantial evidence.” Hanna

v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). “We review the

IJ’s factual findings regarding changed country conditions for

substantial evidence.” Smolniakova v. Gonzales, 422 F.3d

1037, 1052 (9th Cir. 2005). We also review for substantial

evidence the BIA’s determination that a petitioner has not

qualified for withholding of removal, and that a petitioner is

ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653,

657 (9th Cir. 2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193

(9th Cir. 2003). Sowe’s petition for review challenges the

decisions of the IJ and the BIA on several grounds.

A

[1] Sowe contends that both the IJ and the BIA erred in

denying his asylum claim on the ground that changed country

conditions made it safe for him to return to Sierra Leone.

Unless there is reason to grant discretionary relief pursuant to

8 C.F.R. § 1208.13(b)(1)(iii), an asylum application will be

denied if “[t]here has been a fundamental change in circumwhether the IJ erred in finding that Sowe was not a credible witness.

“Thus, because the BIA has expressly declined to address [Petitioner’s]

credibility, we do not decide that issue here in the first instance.” Hanna

v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). 

11034 SOWE v. MUKASEY
stances such that the applicant no longer has a well-founded

fear of persecution in the applicant’s country of nationality

. . . on account of race, religion, nationality, membership in

a particular social group, or political opinion.” 8 C.F.R.

§ 1208.13(b)(1)(i)(A). 

Sowe’s contention that the BIA erred in concluding that the

presumption of future persecution had been rebutted by the

evidence of changed conditions in Sierra Leone raises a preliminary question as to whether we review the IJ’s resolution

of this issue or the BIA’s conclusion. See Ghaly v. INS, 58

F.3d 1425, 1430 (9th Cir. 1995) (“Where the Board . . . conduct[s] a de novo review of the record, our review is limited

to the decision of the Board except to the extent that the IJ’s

opinion is expressly adopted by the Board.”). Here, the BIA

did not state whether it was conducting a de novo review of

the IJ’s findings regarding country conditions in Sierra Leone.

However, its holding regarding country conditions is nearly

identical to the IJ’s. “To the extent that the BIA incorporates

the IJ’s decision as its own, we treat the IJ’s statement of reasons as the BIA’s and review the IJ’s decision.” Gonzalez v.

INS, 82 F.3d 903, 907 (9th Cir. 1996). 

[2] Sowe first asserts that the IJ and the BIA erred in relying “primarily on the Department of State’s country report for

2004 (released February 28, 2005)” to rebut Sowe’s future

persecution claim on the ground that country conditions had

changed. Pet’r Br. at 24. Sowe argues that “[these] generalized materials are insufficient to rebut Mr. Sowe’s presumed

well-founded fear of future persecution.” Id. at 24. Reliance

on the 2004 country report was not erroneous. U.S. Department of State country reports are “the most appropriate and

perhaps the best resource for information on political situations in foreign nations.” Kazlauskas v. INS, 46 F.3d 902, 906

(9th Cir. 1995) (internal quotations marks omitted). 

Next, Sowe contends that

SOWE v. MUKASEY 11035
contrary to the BIA’s (and the IJ’s) assertions, [the

2004 country report indicates that] the “disarmament” has not been completed, the Sierra Leone

Police are undisciplined and incompetent, the government of Sierra Leone has not devoted sufficient

resources to develop a competent police force, and

. . . the government of Sierra Leone remains unwilling or unable to control RUF or former RUF rebels.

Pet’r Br. at 26. In support of this statement, Sowe has quoted

from selected portions of the 2004 country report. In a related

argument, Sowe contends that “[n]o individualized analysis

took place in this case and thus the BIA and the IJ abused

their discretion.” Id. at 29. 

[3] We are not in a position to second-guess the IJ’s construction of the somewhat contradictory 2004 country report.

See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000 (9th

Cir. 2003) (“[T]he agency, not a court of appeals, must construe the country report and determine if country conditions

have changed such that the applicant no longer has a wellfounded fear of persecution.”). “[W]here the [IJ] rationally

construes an ambiguous or somewhat contradictory country

report and provides an individualized analysis of how

changed conditions will affect the specific petitioner’s situation, substantial evidence will support the agency determination.” Id. (citation and internal quotation marks omitted). 

[4] Substantial evidence supports the IJ’s findings that the

country conditions that affected Sowe have improved. Sowe’s

asylum claim is premised upon his fear of being persecuted by

the RUF because he is a Muslim Maraka, and because of his

parents’ political affiliations. The IJ noted that the 2004 country report found that RUF members have been tried by a war

crimes tribunal and that the Sierra Leone government is taking action against the RUF. The IJ further considered the fact

that Islam was practiced by 60 percent of Sierra Leone’s population, and that relations between various religious commu11036 SOWE v. MUKASEY
nities were amicable. The IJ acknowledged that in 1999, the

RUF took action against religious leaders, but that “this information is from 1999 when the civil war was going forward

and there have been significant changes in Sierra Leone [since

then].” AR 41. 

Next, Sowe argues that the BIA’s and the IJ’s conclusions

regarding country conditions were undermined by a 2003

country report, released on February 25, 2004. He cites no

authority for the proposition that information in an outdated

country report should be given more weight than information

in a more recent report. 

B

Sowe also claims that the BIA “impermissibly place[d] the

burden upon Mr. Sowe to establish that he would face persecution if returned to Sierra Leone.” Pet’r Br. at 30 (citing the

BIA’s conclusion that he failed to show “a pattern or practice

of persecution or that there is any continuing interest in him”).

In this aspect of its decision, the BIA did not adopt the IJ’s

reasoning. Therefore, we shall review the BIA’s conclusion.

[5] The BIA did not require Sowe to prove that country

conditions had not changed. Rather, in the statement Sowe

challenges, the BIA explained that because the government

had succeeded in rebutting any showing of persecution, Sowe

did not have a well-founded fear of persecution. This is an

accurate statement of the law. See Mamouzian v. Ashcroft,

390 F.3d 1129, 1135 (9th Cir. 2004) (“The government must

. . . rebut th[e] presumption by demonstrating by a preponderance of the evidence that country conditions have changed or

that relocation is possible, so that the petitioner no longer has

a well-founded fear that she would be persecuted if she were

to return.”). 

C

[6] Sowe also alleges that his well-founded fear of persecution was not rebutted because “[t]he Government failed to

SOWE v. MUKASEY 11037
establish that internal relocation was a reasonable option.”

Pet’r Br. at 33. Neither the BIA nor the IJ addressed this

issue. However, it was not error to avoid it. The presumption

that an asylum applicant has a well-founded fear of persecution can be rebutted either by a showing that “[t]here has been

a fundamental change in circumstances such that the applicant

no longer has a well-founded fear of persecution in the applicant’s country of nationality” or by a showing that “[t]he

applicant could avoid future persecution by relocating to

another part of the applicant’s country of nationality.” 8

C.F.R. § 1208.13(b)(1)(i)(A), (B). Substantial evidence supports the conclusions of the IJ and the BIA that as a result of

fundamental changes in Sierra Leone, the RUF no longer persecutes any group on account of race, religion, nationality,

membership in a particular social group, or political opinion,

including the Muslim Maraka. This evidence rebutted the presumption of a well-founded fear of future persecution.

D

We next turn to Sowe’s argument that he is eligible “for a

humanitarian grant of asylum on account of the severe forms

of past persecution that he and his family suffered and the reasonable possibility that he will suffer other serious harm if

removed to Sierra Leone” pursuant to 8 C.F.R.

§ 1208.13(b)(1)(iii)(A), (B). Pet’r Br. at 39. 

[7] “[I]t is now within the discretion of the IJ and BIA to

grant asylum to victims of past persecution whose fear of

future persecution has been rebutted.” Belishta v. Ashcroft,

378 F.3d 1078, 1081 (9th Cir. 2004) (order) (citing 8 C.F.R.

§ 1208.13(b)(1)(iii)(A), (B)). Section 1208.13(b)(1)(iii)(A)

provides that an applicant who does not have a well-founded

fear of future persecution “may be granted asylum, in the

exercise of the decision-maker’s discretion, if . . . [t]he applicant has demonstrated compelling reasons for being unwilling

or unable to return to the country arising out of the severity

of the past persecution.” In determining whether an applicant

11038 SOWE v. MUKASEY
qualifies for this relief, the BIA must “consider the level of

atrocity of past persecution.” Lopez-Galarza v. INS, 99 F.3d

954, 963 (9th Cir. 1996). 

[8] The BIA denied discretionary relief pursuant to section

1208.13(b)(1)(iii)(A), stating: “[w]e do not find the harm that

respondent claims to have suffered, that of being detained and

beaten by the RUF, to be sufficiently compelling to support

a grant of asylum in the absence of a well-founded fear of

future persecution.” The BIA erred in failing to determine

whether, assuming the truth of Sowe’s testimony that he witnessed his parents’ murder, the severing of his brother’s hand,

and his sister’s kidnaping, he provided compelling reasons for

his being unwilling or unable to return to Sierra Leone.

Because we lack the authority to act as fact-finders, or to

determine credibility in the first instance, we must remand to

the BIA the question whether Sowe is eligible for asylum pursuant to section 1208.13(b)(1)(iii)(A). INS v. Orlando Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). 

[9] Sowe also alleges that the BIA erred in denying him

relief pursuant to section 1208.13(b)(1)(iii)(B). As to that

claim, the BIA concluded that there was no reasonable probability that Sowe “would suffer other serious harm upon

removal to Sierra Leone.” AR 3. Sowe argues this was error

because his arguments relating to asylum and withholding of

removal establish that he “faces a reasonable likelihood of

other serious harm if forced to return to Sierra Leone.” We

disagree. The evidence of changed country conditions effectively rebutted the presumption that he would suffer future

persecution. Furthermore, to be eligible for asylum pursuant

to section 1208.13(b)(1)(iii)(B), Sowe must show “ ‘other

serious harm’ aside from persecution.” Recinos de Leon v.

Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005). Sowe has

failed to show that the BIA erred in determining that he was

not eligible for asylum pursuant to section

1208.13(b)(1)(iii)(B). 

SOWE v. MUKASEY 11039
E

[10] Sowe contends that he is eligible for withholding of

removal. In Gonzalez-Hernandez, we concluded that the BIA

correctly denied an asylum claim because “the INS rebutted

the presumption that Gonzalez has a well-founded fear of

future persecution.” 336 F.3d at 998. When the government

rebuts an applicant’s well-founded fear of future persecution,

it defeats the applicant’s asylum claim, and his or her claim

for withholding of removal. See id. at 1001 n.5 (holding that

because the applicant and his family “do not have a wellfounded fear of persecution, it necessarily follows that they do

not qualify for withholding of removal”). Therefore, the

BIA’s findings regarding changed country conditions also

defeat Sowe’s withholding of removal claim. 

F

Sowe argues that the BIA erred in denying his CAT claim.

“[T]o be eligible for relief under [CAT], a petitioner must

show ‘that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.’ ”

Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001) (quoting 8 C.F.R. § 208.16(c)(2)). 

The BIA concluded that Sowe “has not established a fear

of the Sierra Leonean government and current country conditions . . . do not suggest that if the respondent is removed to

Sierra Leone he will more likely than not be tortured.” AR 3.

Sowe contends that, in reaching this conclusion, the BIA

implicitly held that Sowe had to prove that he will be tortured

at the hands of the government, or that “the government has

[to have] actual awareness of an individual or a group’s inclination to torture him personally.” Pet’r Br. at 44-45. 

This is an unreasonable interpretation of the BIA’s order.

The order as a whole establishes that the BIA understood that

Sowe sought relief based on his claim that he fears the RUF.

11040 SOWE v. MUKASEY
The BIA concluded that Sowe failed to establish that the RUF

would torture him upon his return to Sierra Leone, and cited

8 C.F.R. §§ 1208.16(c)(3) and 1208.18(a) in support of its

conclusions. Section 1208.16(c)(3) describes the kind of evidence that must be considered in determining “whether it is

more likely than not that an applicant would be tortured in the

proposed country of removal.” Section 1208.18(a) defines torture. 

Sowe further contends that the BIA erred in denying CAT

relief because “country conditions have not improved such

that Mr. Sowe does not have a real fear that more likely than

not that he will be tortured at the hands of former RUF soldiers.” Pet’r Br. at 45. In particular, he claims that the BIA

“fail[ed] to take into consideration all the relevant evidence in

the record.” Id. at 46. 

The evidence Sowe relies upon to demonstrate that he was

tortured is the same evidence he cited in support of his asylum

claim. However, just as changed country conditions can

defeat an asylum claim, they can also defeat a claim for CAT

protection. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th

Cir. 2004) (holding that “the El Himris have not shown that

it is more likely than not that they will suffer torture inflicted

by the government if they return to Kuwait” because “most of

the physical violence perpetrated by the government against

Palestinians ended when constitutional government returned

to Kuwait”). 

[11] Here, as in the asylum context, Sowe’s arguments do

not establish that the country conditions in Sierra Leone have

remained stagnant. The BIA’s conclusion that Sowe will not

be tortured because conditions in Sierra Leone have changed

is supported by substantial evidence. 

IV

[12] Sowe requests attorneys’ fees and other costs pursuant

to 28 U.S.C. § 2412(d)(1)(B). We deny Sowe’s request

SOWE v. MUKASEY 11041
because it is premature. See id. (“A party seeking an award of

fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees

and other expenses which shows that the party is a prevailing

party and is eligible to receive an award under this subsection

. . . .”). 

The petition for review is DENIED IN PART and

GRANTED IN PART. We REMAND for further proceedings

regarding Sowe’s application for asylum pursuant to 8 C.F.R.

§ 1208.13(b)(1)(iii)(A). 

The parties shall bear their own costs on appeal. 

11042 SOWE v. MUKASEY