1 The Honorable Theodore McMillian diedon January 18, 2006. This opinion is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-2152

___________ Abraham Brima Bah, *
* Petitioner, * * Appeal from the Board of v. * Immigration Appeals.
* Alberto Gonzales, Attorney General of * the United States, *
* Respondent. *

___________ Submitted: January 13, 2006 Filed: May 15, 2006

___________ Before LOKEN, Chief Judge, McMILLIAN 1 and MELLOY, Circuit Judges.

___________ MELLOY, Circuit Judge.

Petitioner Abraham Brima Bah seeks review of the Board of Immigration Appeals’ (BIA) denial of his applicati on for asylum, withholding of removal, and relief under the Convention Against Torture. In denying asylum, the BIA held that Bah failed to demonstrate past persecution. As a result, the BIA placed the burden on-2- Bah to prove a well-founded fear of fu ture persecution base d on existing country conditions. We find that the record comp els a finding of past persecution based upon a protected status. Accordi ngly, there exists a presump tion of a well-founded fear of future persecution, and we remand with th e burden on the government to establish changed conditions.

I.

Bah was born in the city of Kakata, Liberia, in 1968. He is Muslim and a member of the Mandingo tribal group. In 1989, Charles Taylor and his rebel forces started a war against the government of Libe ria. In July 1990, Taylor’s rebel forces reached the Mandingo quarter of Kakata and killed Mandingos based on the belief that the Mandingos supported the government. Mandingo men like Bah’s father wore traditional gowns and were easily recognizab le by the rebel forces. Bah hid on the roof of his father’s house and watched the rebels kill his fatherwith a machete-like sword called a cutlass. The rebels proceededto loot and ransack the home. The rest of Bah’s family, including his mother, thr ee brothers, and one si ster, escaped. Bah’s mother was from the Grebo ethnic group and was not Mandingo. Bah eventually fled to Sierra Leone where he lived as a refugee for six years.

During a cease fire in 1996, Bah returned to Liberia and found his mother and three brothers in Monrovia. He did notfind his sister, whose fate remains unknown. He returned to the house in the Mandingo quarter of Kakata where a predominately Mandingo rebel group was in control. Howeve r, violence continued at that location, and he did not stay. An el ection was scheduled for 1997. He joined the All Liberia Coalition Party (ALCOP) and became the assi stant secretary general for a youth wing of ALCOP. In this capacity, he organized meetings and a rally and encouraged people to vote against Charles Taylor.-3- Taylor won the 1997 election and supporte rs of the Taylor government began persecuting members of ALCOP. The lead er of ALCOP fled the country, but Bah could not afford to leave Liberia at that tim e. Taylor’s forces threatened to kill Bah if he continued to oppose Taylor. The forces also threatened other Mandingos, including Bah’s family. In 1998, Taylor’s forces burned the family’s Kakata house.

Bah then found a job working for the Ge rman Technical Corporation. The company worked with the United Nations to return Liberian refugees to Liberia from Guinea, Sierra Leone, and other places. Th e company also distributed relief supplies to refugees. Fighting between the Taylor government and resistance forces continued. In 1999, while Bah was in a convoy relo cating refugees, police from Taylor’s government stopped him at a checkpoint to l ook for dissidents or rebels. The police arrested Bah and placed him in prison where they interrogated him and threatened him with death in an effort to obtain inform ation about dissidents. The police accused Bah of transporting rebels and confined him fo r two days without food or water in a cell that was too small to permit him to stand. While squatting in the cell for these two days, Bah injured his spine. The company was able to secure his release by working with the Taylor government’s defense ministry. After release from this first incarceration, Bah learned that three of his Mandingo relatives , one aunt and two cousins, had been murdered.

Bah temporarily stopped moving refugees, but the Taylor government reached an agreement with the United Nations regarding the repatriation of refugees, and Bah was told that it would be safe to resume work transporting refugees. Fighting between rebels and Taylor’s governme nt intensified, however, and, in early 2001, Taylor’s police again stopped Bah at a checkpoint. Ag ain, they imprisoned and threatened Bah and accused him of transporting rebels. A co lonel in Taylor’s forces was the father of one of Bah’s childhood friends. The fri end’s father was able to obtain Bah’s release, but the colonel warned that Bah woul d be killed if he stay ed in Liberia. The2 While it is generally true that the pres ence and safety of family members in a country may suggest an absence of danger, in this case it is important to note that neither Bah’s wife nor his mother are Mandingo, and there is no evidence to suggest that either woman was at any time politically active or involved in activities likely to draw the ire of Charles Taylor supporters.

3 The record contains substantial additional testimony and documentation regarding conditions in Liberia between th e time of Bah’s departure and the final
-4- colonel told Bah that Taylor’s police removed prisoners under the auspices of transporting them to Monrovia but killed the prisoners along the way.

Bah then went to a suburb of Monrovia where he stayed with his mother, who was not Mandingo. Bah had a cousin on his mother’s side of th e family who was a colonel with Taylor’s police force in Monrovi a. The cousin said that Bah’s name was on a blacklist of persons to be eliminated . Bah then disguised himself and hid. Taylor’s forces raided the home but did notfind Bah. They destroyed Bah’s property and beat his brother. Two of Bah’s cowork ers were arrested, and Bah decided to leave the country. The German company wrote to the American embassy on Bah’s behalf, and Bah obtained a visa. Bah did not enc ounter difficulty obtaining a passport. Bah’s cousin in the police force moved Bah through government checkpoints and helped Bah get on a flight out of Liberia.

Bah was married by the time he left Libe ria. His wife and mother remain in Liberia. 2His wife, like his mother, is not Ma ndingo, and neither of them have been harmed. At the time of the hearing before the immigration judge, Charles Taylor was in exile in Nigeria, and a different government was in pl ace. Soldiers from Taylor’s security forces continued to pose a danger in Liberia, however, because many remained in the security forces and others formed roving gangs. Bah testified that he feared returning to Liberia because he be lieved the security fo rces were still headed by former Charles Taylor supporters and becau se he feared reprisal from the gangs of former Charles Taylor supporters. 3removal hearing. Because of our disposition of this matter, we need not discuss that part of the record. It su ffices to note that the record reflects ongoing instability and great uncertainty regarding the actions of Charles Taylor’s forces within the government and security forces as well as th e criminal actions of those forces acting outside the government. At a minimum, the evidence in this case establishes that we cannot treat as harmless error the failu re to place the burden of proof on the government to prove changed conditions

. -5- Bah entered the United States in 2001 as a non-immigrant visitor for pleasure. His visa permitted him to remain in th e United States until October 2, 2001. On September 4, 2001, while still legally presen t in the United States under the visa, he filed an application for asylum. Ultim ately, he overstayed his visa and the Immigration and Naturalization Service (now the division of Immigration and Customs Enforcement within the Department of Homeland Security (DHS)) commenced removal proceedings. Bah c onceded removability but sought asylum under 8 U.S.C. § 1158, withholding of re moval under 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Tortur e, 8 C.F.R. § 208.16(c)(2). In the alternative, he sought voluntary departure.

At Bah’s preliminary removal hearing, the immigration judge asked if Bah had temporary protected status under 8 U.S.C . § 1254a(a)(1)(A) and if Bah was going to move to administratively close (suspend) the removal hearing. Temporary protected status was available to Libe rian citizens at that time b ecause Liberia was designated as a state where there was “an ongoing armed c onflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state . . . would pose a serious threat to their personal safety[.]” 8 U.S.C. § 1254a(b)(1)(A). Bah’s counsel answered that Bah was about to apply for temporary protected status but that he was not going to move to admini stratively close the removal hearing. The immigration judge scheduled a final hearing for November 5, 2003.4 In this regard, we note that there was documentary corroboration of many of Bah’s claims.
-6- At the beginning of the November 5 h earing, the immigration judge asked Bah if he had obtained temporary protected st atus, which he had. Counsel for the DHS then moved to administratively close (sus pend) Bah’s removal proceedings and take the case off the calendar. This request was, in essence, a request that Bah and his attorney, who had not previously work ed in the area of asylum, consent to administrative closure. A discussion ensued between Bah’s counsel and the immigration judge during which the immigr ation judge explained temporary protected status to the attorney. The immigration j udge stated that administrative closure could occur by consent of both parties and that the case would truly be suspended until such time that either party moved to place the cas e back on the calendar. Counsel for the DHS informed Bah that administrative clos ure was only available at that particular time because, if Bah forced the DHS to proceed with th e hearing, the DHS would not in the future agree to an administrative closure.

Bah elected to proceed with the remova l hearing. After hearing testimony and receiving evidence, the immigration judge re jected most of Bah’s requests for relief but granted him voluntary removal. The i mmigration judge stated that she found Bah generally credible. In additi on, she did not expressly rejectany factual assertions that Bah made at the hearing either by finding him not credible as to any particular statement or demanding additional corrobor ation as to any particular claim. 4Instead, she drew different legal conclusions than Bah based on the evidence and explained his various encounters with Charles Taylor’s fo rces as isolated, unconnected events that did not amount to persecution. She stated:

The Court will find that the res pondent personally has not suffered past persecution based on one of the five grounds enumerated in the Act. The respondent’s two instances of be ing arrested and harmed stem from when he was stopped at checkpoints when he was working for the GTC5 This statement is an erroneous recitation of the record. The colonel who secured Bah’s release from incarceration was the father of a childhood friend, not Colonel Sheriff.
-7- company. The respondent was arrestedfor several days on the belief that he might be transporting rebels. On one occasion, the GTC got the Ministry of Defense to write a lette r to the prison to let the respondent out and he was released. The other time, the respondent’s cousin, Colonel Sheriff, came and got the respondent released. 5 The Court does note that the respondent’s father was killed in the early time frame of the war. Although that is a tragic even t, the Court finds that the respondent was not harmed personally and the C ourt further notes that there is a change in country conditions that is ongoing today. With respect to whether or not the respondent has a well-founded fear of future persecution, the Court notes that there are ever changing country conditions in Liberia. Charles Taylor fled Liberia in approximately August of 2003 and is in exile in Nigeria. There is a new interim government which is led by Gyude Bryant, who has a newly installed power-sharing government. Accordingly the government that the respondent fears had this lead ers who had left. The court does believe that there are Charles Taylor supporters who are still in Liberia and causing problems. However effo rts are being made and apparently will continue to be made to stop the roving band of gangsters who are terrorizing the population which is referenced in the BBC article in Exhibit No. 10. Jacques Klein indicat ed in the interview that leadership is weak and there are roving bands of gangsters terrorizing the population. Accordingly, the Court acknowledges that there continues to be civil unrest in Liberia. However, the respondent’s wife has returned to Liberia from the Ivory Co ast and has not been harmed despite the fact that she is of a different tribal group than the respondent. Furthermore, the respondent’s mother continues to live in Monrovia, Liberia. The respondent has Tempor ary Protected Status for Liberians. The Court believes thatthe appropriate remedy is the Temporary Protected Status that has beengiven him by the United States Government, which allows the responde nt to remain in the United States and work in the United states un til such time as the United States-8- Government deems that it is safe for the respondent and others in his circumstances to return to Liberia.
The immigration judge went on to note th at Bah also failed to meet the higher standards for withholding of removal and relief under the Convention Against Torture.

Bah appealed, and the BIA affirmed “b ased upon and for the reasons set forth” in the immigration judge’s opinion. On appeal to this court, Bah challenges the finding of no past persecution. In the alte rnative, he challenge s the finding of no wellfounded fear of future persecution. He argues not only that his personal history suffices to demonstrate past persecution a nd a well-founded fear of future persecution, but that the immigration judge erred as a matter of law by permitting the availability of temporary protected status to impact her analysis of persecution. Finally, he argues that the period of voluntary removal should be tolled pending expi ration of temporary protected status.

II.

The BIA is entitled to substantial deferen ce. We must affirm the BIA’s finding of no past persecution unless the record co mpels a finding of past persecution based on a protected ground. INS v. Elias-Zacarias , 502 U.S. 478, 481 & n.1 (1992); 8 U.S.C.A. § 1252(b)(4)(B). Here, we believe the record co mpels such a finding. Bah witnessed his father’s murder at the hands of Taylor’s forces, and that murder was motivated by two prohibited reasons: membership in a tribal group and imputed political opinion. Bah’s sister disappeared, and Bah was forced to live for six years as a refugee in Sierra Leone. Taylor’s fo rces threatened Bah and Bah’s family with death after Bah returned to Liberia and campaigned against Taylor prior to the 1997 election. Taylor’s forces burned Bah’s family’s home in apparent retribution for Bah’s participation in the ALCOP campai gn against Taylor or because of Bah’s Mandingo heritage. Taylor’s forces also destroyed Bah’s personal property and beat6 As noted above, supra at n.3, the recordin this case does not demonstrate such a dramatic change in conditions within Libe ria that we may resolve this issue on the present record. Further, conditions in Libe ria have continued to change since the time of Bah’s removal hearing. Those ongoing changes are material and should be considered on remand.
-9- his brothers. Taylor’s forces twice imprisoned Bah based on the belief that Bah was smuggling rebels into the country. See De Brenner v. Ashcroft , 388 F.3d 629, 635-36 (8th Cir. 2004) (stating that it is the belief of the persecutor that determines whether persecution was based on a protected ground) . Bah was blacklisted for elimination. He was released from imprisonment once through the aid of his employer and once through the aid of a colonel in Taylor’s fo rces, the father of a childhood friend. The father of Bah’s childhood friend told Bah th at Taylor’s forces were taking prisoners from Bah’s location under the auspices of tran sport to a different facility in Monrovia, but killing the prisoners en route. Bah’s cousin, a non-Mandingo relative on Bah’s mother’s side who was also a colonel in Taylor’s police force, escorted Bah through checkpoints to permit Bah’s escape from Liberia. It was this cousin who told Bah that he was blacklisted. We find this eviden ce sufficient to compel a finding of past persecution.

The burden of proof is always on the alie n to establish past persecution. ElSheikh v. Ashcroft , 388 F.3d 643, 646 (8th Cir. 2004). A well-founded fear of future persecution is presumed to exist if an a lien demonstrates past persecution. Id. ; 8 C.F.R. § 208.13(b). With a demonstration of past persecution, the burden falls on the government to prove a change in country conditions sufficient to overcome the presumption of a well-founded fear of future persecution. Id. Because the record compels a finding of past persecution, Bah is entitled to relief unless the DHS proves sufficiently changed country conditions. 6

We grant the petition for review and remand to the BIA for assessment of changed country conditions with the burden of proof on the government.

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