555 F. App'x 773
10th Cir.2014Background
- Thiam, a Senegalese Mandingo, faced persecution amid Casamance conflict and opposed MFDC rebellion.
- MFDC rebels beat him, and Senegalese forces later detained and tortured him after misidentifying him with the rebellion.
- He fled to Gambia and entered the United States illegally in July 2006, seeking asylum, restriction on removal, and CAT protection.
- IJ denied relief, finding no past persecution by MFDC and internal relocation might be reasonable; BIA affirmed in part.
- BIA found past persecution by Senegalese military implied, but still affirmed denial because relocation within Senegal could avert future persecution.
- Court remanded to consider whether internal relocation is reasonably possible under 8 C.F.R. § 1208.13(b)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether internal relocation is reasonably possible for Thiam. | Thiam argues BIA failed to apply § 1208.13(b)(3) factors and ignored individualized harms. | Government contends relocation to Dakar is safe and reasonable under the regulation. | Remanded for a full reasonableness analysis under § 1208.13(b)(3). |
| Whether Thiam is eligible for asylum and restriction on removal based on past persecution or fear. | Thiam asserts past persecution by Senegalese forces and MFDC imputed political opinion entitles relief. | BIA found no MFDC past persecution and that relocation could avoid future persecution, undermining asylum/restriction. | Asylum and restriction on removal reversal in part; remanded for further proceedings on relocation reasonableness. |
| Whether CAT protection was properly denied. | Thiam argues imputed political opinion could lead to torture upon return. | BIA found no substantial likelihood of torture by officials or acquiescence. | Affirmed denial of CAT protection. |
Key Cases Cited
- Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) (final order review when single BIA member affirms IJ)
- Sarr v. Gonzales, 474 F.3d 783 (10th Cir. 2007) (can consult IJ where BIA relied upon it)
- Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004) (substantial evidence standard for BIA findings)
- Yule v. Ashcroft, 355 F.3d 1222 (10th Cir. 2004) (BIA findings conclusive unless record compels contrary)
- Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (two-part inquiry: safety and reasonableness of relocation)
- Gambashidze v. Ashcroft, 381 F.3d 187 (3d Cir. 2004) (two-part relocation inquiry; reasonableness factors)
- Krastev v. INS, 292 F.3d 1268 (10th Cir. 2002) (country conditions evidence not substitute for individualized analysis)
- INS v. Ventura, 537 U.S. 12 (U.S. 2002) (internal relocation typically precludes asylum)