Olakitan Eusebio v. John Ashcroft, Attorney General of the United States
361 F.3d 1088
8th Cir.
2004
Check Treatment
Docket

*2 classes, son in one of adema’s Washington, Wright, argued, Jocelyn M. *3 Eusebio’s changed Mr. principal school Jr., (Robert McCallum, Frank W. D. D.C. schedule, the weeks after and six class Drucker, Fraser, R. on the Alison Mr. son’s incident brief), respondent. for “would Eusebio that he Mr. threatened Before MORRIS SHEPPARD grade. give to the regret” his decision RILEY, ARNOLD, LAY and Circuit thereafter, Mr. police the arrested Soon Judges. forty-eight hours him for Eusebio and held in school. anti-Eyadema statements for ARNOLD, SHEPPARD MORRIS released, received Mr. Eusebio being After Judge. Circuit magistrate, a appear to before subpoena review of petitions for Eusebio Olakitan the United Togo left for whereupon he Ap- Immigration Board of an order of the obtained student previously on a States (BIA) immigration an upholding peals country July, 1996. visa, entering our application of Mr. Eusebio’s judge’s denial and he expired, has Eusebio’s visa Mr. affirm. asylum. for We In No- deportable. that he is concedes Togo, where he is from Mr. Eusebio 1997, application an he filed vember teacher. high school science worked as asylum. political activi- political in various He was involved asy prevail, political In to order Gnassingbe regime of critical of the ties they have a must show that lum seekers power who came Eyadema, on persecution of future well-founded fear Eusebio military coup 1967. Mr. after a political rallies. beliefs. See 8 and attended the basis their leaflets distributed 1158(b)(1). demonstrations, 1101(a)(42)(A), Mr. Eusebio If §§ At two U.S.C. they dispersed the by police when po beaten they past suffered they can show another breaking up protesters. While pre then a rebuttable persecution, litical demonstration, police chased Mr. future they will suffer sumption arises nearby into a and some friends Eusebio Heston, 159 Cigaran v. persecution. See house, and his friends where Mr. Eusebio Cir.1998). 355, The Ninth in a room while the locked themselves “perse observed that properly Circuit has for several minutes beat on the door police concept.” Fisher v. cution is extreme Eusebio was re- leaving. Mr. before Cir.1996) (en INS, 955, 961 79 F.3d anti-Eyadema politi- another turning from banc). and harass Low-level intimidation country neighboring in the cal event held persecu not rise to the level ment does Benin, by the when he was detained INS, Fisher v. tion. See wearing a T-shirt military he was because (8th Cir.2002). 497-98 Sylvanus with the face of emblazoned did not found that Mr. Eusebio The IJ Eyadema the leader whom Mr. Olympio, political of future a well-founded fear have was released Mr. Eusebio overthrew. that Mr. first concluded persecution. She family friend shortly thereafter when that he had had failed to show Eusebio In Mr. on his behalf. intervened subject political persecution, past been fled to Benin dur- Eusebio and by chased or beaten author- being because accompanied failed ing the unrest in rallies did not participating ities Mr. by military against officers coup some a matter of law. persecution as returned, constitute Eyadema. When Mr. by po- detention by looted Even damaged had been his home (10th Cir.1991). held, lice, prolonged was not or say IJ We cannot that the enough past to “rise to the level of abuse Mr. serious Eusebio suffered was more se- persecution [political on account of be- vere than that suffered those whose As for his confrontation with the liefs].” claims routinely rejected. the courts have Eyadema body guard, son of Mr. and his thus affirm legal We the BIA’s holding the IJ found the harassment was that the minor beatings and detentions to animosity on than personal based rather subjected which Eusebio was did not political beliefs. rise to the level of pointed despite long- The IJ out that Mr. Eusebio’s claim that his house time membership opposition party, *4 destroyed was in retaliation for politi difficulty Mr. Eusebio had no in obtaining good cal beliefs is a deal more serious. country. a visa to leave the She also took found, however, The IJ that the destruc Department note of a United States tion of the house general was incidental to report that indicating during State accompanying unrest military failed con previous year reported there had been no spiracy and not on account of Mr. Euse- in political disappearances Togo; that the political bio’s beliefs. After reviewing the political to party which Eusebio be- record, we conclude that this factual deter longs publieally Togo gar- exists in' and mination review under survives the “sub thirty percent nered of the vote in the last stantial evidence” standard. election; opposition parties that additional The substantial evidence stan exist; leading and that while some activ- dard that employ reviewing we when BIA been, jailed, many ists have been have not factual extremely -determinations is defer opposition and rallies are well attended ential. See Ashcroft, Menendez-Donis v. generally and do not meet with official (8th Cir.2004). 360 F.3d 915 opposed As opposition government. from the The IJ judicial to our review of fact-finding, we that, concluded in political while conditions liberty are not at to reverse even a deci ideal, Eusebio, Togo may not be as clearly sion that we find to be erroneous. opposition par- rank-and-file member of an Rather, at Id. 918. we must affirm- the ty, likely political was not to suffer future unless, having BIA’s factual decisions after adopted The BIA the IJ’s whole, opinion. reviewed the record as a we deter mine that it possible would not be for a legal We review the BIA’s deter adopt reasonable fact-finder to the BIA’s minations de novo. Ikenokwalu-White v. position. requirement Id. at 919. The INS, (8th 798, Cir.2003), 316 giv F.3d 804 at we look “the record as a whole” ing due to deference the administrative means that unlike what we do when we statute, agency’s interpretation of the see verdicts, jury may review simply we not Mead, 218, 227, United States v. 533 U.S. disregard contrary evidence to the deci 228, 2164, 121 150 S.Ct. L.Ed.2d 292 sion. See id. (2001). principle It is a well-established’ Mr. Eusebio detentions, testified the destruc- beatings that minor and brief March, in tion of his house occurred 1993. lasting even or days, detentions two three Eusebio, however, According to Mr. do not amount from political persecution, to 1993, 1993, February, July, government even if to he and his are motivated officials See; by political living were Benin because there e.g., animus. Nelson v. INS, (1st 258, Cir.2000), insecurity” Togo. 264 Pra was “total He also INS, Cir.1995), sad v. 47 military F.3d 339 testified that at this time the INS, 702, 704-05, Kapda v. 944 going through “shooting F.2d 708 the streets at to that Eusebio has failed ity’s conclusion that houses that moved” and anything destroyed during I believe that to his own were that burden. addition overcome testimony, can- we the unrest. Given that Eusebio plainly demonstrates record fact-finder any reasonable say not persecu- of future has a well-founded fear to conclude that compelled be would beliefs, and that tion based on findings were erroneous. IJ’s find to the fact-finder could no reasonable Heston, 172 Kratchmarov v. contrary. See Mr. Eusebio did Because Cir.1999). denying By persecution, he past political demonstrate record, the INS sends asylum on this if asylum only he be entitled would showing that he man to face certain young the burden of back carried persecu fear of future had a well-founded torture. persecution The Cigaran, 159 F.3d 357. tion. See that substantial evidence determining In true, it is Togo, is political situation decision, majority supports the IJ’s instance, the State hardly optimal. For persecu- instances of significant overlooks BIA which the re Department report on before, immediately tion that occurred there were no lied indicates *5 in, Euse- motivating that the factors were in extrajudicial killings disappearances or depart for the United bio’s decision disap in year Togo, such previous the repeated per- instances of These States. in fact oc killings have pearances and subject of testi- secution were the detailed past. in the On the other curred there hand, Eusebio, that report indicates not doubt mony by the same and the IJ did Togo engage opposi of many citizens any underlying credibility as to of the his suffering persecution. politics tion without that the The INS also overlooks facts. Indeed, testimony Mr. own cor Eusebio’s Department report concerning State view of the situation roborates this persecu- of unrest and great shows deal testimony, to that de Togo: According upon political tion based belief. never spite years of activism he majority completely and the Both the IJ deliberately targeted seems to have been surrounding Eusebio’s minimize the events authorities, he has been beat by although failing grade giving Eyadema’s act son briefly participating en and detained chemistry, dismissing and them exception physics in single rallies. The mass reasonably personal dispute what the IJ character between volved as the result of personal dispute ized as a between bodyguard. the son’s Closer Eusebio and Ey- bodyguard and the reveals that the analysis of the record son. therefore conclude that adema’s We reasonably a con- facts cannot bear such evidence in the record as a substantial struction, moti- dispute and that the was rejection of Mr. supports whole the IJ’s by political, personal, vated not differ- asylum claim for because of a Eusebio’s issued the bad ences. After Eusebio well-founded fear of future son’s grade, Eyadema upset was with his affirm the BIA’s decision. We therefore and contacted the headmaster failure school, seeking changed. to have it LAY, Judge, dissenting. Circuit to do so and fur- Eusebio refused When respectfully I dissent. tutor, the ther refused to act as the son’s immediately Euse- switched headmaster acknowledge I that our standard While teaching assignments. Eusebio en- bio’s on an places an onerous burden of review bodyguard approxi- countered the son’s of an asylum applicant seeking reversal later, whereupon the decision, major- mately six weeks disagree I with the agency Ashcroft, that is v. bodyguard informed Eusebio he 918-19 (citation Cir.2004), regret slip op. would his insolence. at 5 quota- omitted). tion One week after Eusebio’s encounter then, bodyguard, police with the arrested Euse- What is the substantial evidence to home and took him to the bio his sta- support the IJ’s conclusion that the con- tionhouse, subjected he was to in- where Eyadema’s frontation between bodyguard terrogation accompanied physical politically and Eusebio was motivated? During interrogation, abuse. Euse- The upon showing IJ relies an exhibit expressly referred to act bio’s accusers dropped son out of school be- giving Eyadema’s failing grade, son a receiving degree, fore inferring that viewing part larger the incident as of a the son grades had received bad in the part opposi- scheme on the of Eusebio in past and that grade assignment Eusebio’s Eyadema regime. only tion to the It was unlikely was Eyadema. arouse the ire of after his mother and several friends inter- heavily The IJ also relies fact on the released, vened that Eusebio was but not the confrontation did not occur until six opposi- before he was warned to cease his weeks change after Eusebio refused to A politics tion or face certain death. few grade, son’s later, days government issued sub- not even sure that Eusebio was the teach- poena appear pur- to Eusebio to “for the responsible. er How these facts can ra- poses investigation.” Fearing of an tionally together be tied to reach the con- momentarily the retribution he had es- arrest, clusion that subsequent fruition, caped was about to come to Euse- abuse, interrogation, physical and subpoe- *6 bio used his student to flee to visa investigation by na for Eyadema re- United States. gime personal was due to a grudge by

Against weight the combined of the bodyguard escapes me. evidence, majority foregoing asserts Instead, I would hold that Eusebio met reasonably that “the IJ characterized [the establishing eligibility his burden of for personal dispute as a between incident] asylum by demonstrating he harbored of Mr. persecution a well-founded fear of on ac- Ante, only son.” 1092. The political opinion. count of his See 8 U.S.C. apparent support for this conclusion is the 1158(b). 1101(a)(42)(A), §§ The IJ’s con- majority’s “extremely reference to the def- objective- clusion Eusebio’s fear is not applicable erential” standard of review to ly merely reasonable because he is presented ap- cases such as that now on opposition “rank-and-file member” of sure, peal. To be the decisions of the party completely ignores the fact immigration are to courts be treated with previously singled Eusebio had been out respect, they considerable as rendered are by Eyadema investigation and abuse. expertise specialized tribunal with The same holds true for the IJ’s reliance experience. Yet this deference is not on the fact that much of Eusebio’s limits; without factual determinations continue to live in unharmed. Ac- evidence, supported by must be substantial I cordingly, would remand the case to the supposition. panel As a mere in- Immigration Appeals Board of with only ago, court noted a short time “[sub- grant petition. structions is than a mere stantial evidence more scin- tilla. It means relevant such evidence as adequate mind might accept

reasonable as support a conclusion.” Menendez-Don-