The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0036p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
FATIMA KANTE,
-
Petitioner,
-
-
No. 08-4043
v.
,
>
-
-
ERIC H. HOLDER, JR., Attorney General,
N
Respondent.
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A95 589 074.
Decided and Filed: January 7, 2011*
Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Brian C. DiFranco, DiFRANCO LAW OFFICE, Columbus, Ohio, for
Petitioner. Theodore C. Hirt, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Fatima Kante petitions for review of the order of the
Board of Immigration Appeals affirming the immigration judge’s decision denying her
application for asylum, withholding of removal and relief under the Convention Against
Torture. For the reasons set forth below, we deny the petition for relief.
*
This decision was originally issued as an “unpublished decision” filed on January 7, 2011. On
February 2, 2011, the court designated the opinion as one recommended for full-text publication.
1
No. 08-4043 Kante v. Holder Page 2
I. Facts and Proceedings in the Immigration Court and Board of Immigration
Appeals
Kante is a native and citizen of Guinea who entered the United States in 2002
without documentation. Kante was born there in 1980 and her father owned a grocery
store. From 1984 to 2008, Guinea was ruled by President Lansana Conte, leader of the
Party of Unity and Progress. Various political parties opposed President Conte through
the years, including the “Rassemblement du pueple de Guinea,” loosely translated as the
Rally of the Public of Guinea, or “RPG.”1 Kante is currently married to a native of
Sierra Leone.
Asylum Applications and Hearing
On July 25, 2002, shortly after her arrival in the United States, Kante filed an
application for asylum because she was a victim of violence in her home town of
Macenta, Guinea, in October 2001. In that original application, filed without assistance
of counsel, Kante claims that “rebels” broke into her family compound and beat and
raped her and tortured or raped every member of her family. Kante claimed her parents
were taken away after the attack and that she then fled Macenta. In the original
application, Kante did not claim the attacks had any politically-related motive or that the
attackers were in any way affiliated with the government. She stated that the rebels took
her family’s money and belongings. In response to a question on the application as to
whether Kante or any member of her family had ever been threatened or mistreated by
government authorities, she checked “no.” Her case was referred to the Immigration
Court.
In August 2005, Kante, represented by counsel, filed a second application in
which she claimed that she and her family were “attacked by rebels of unknown
1
After Conte’s death in December 2008, a military junta known as the Council for Democracy
and Development proclaimed Moussa Dadis Camara head of state. The constitution was suspended and
National Assembly dissolved. Petitioner claims that this junta has strong connections to the regime of
Conte, the president in control when petitioner lived in Guinea. This change in government is the basis
of a claim by petitioner that the current turmoil and uncertain future of Guinea increases the likelihood that
she will face future persecution at the hands of the government if she returns to Guinea.
No. 08-4043 Kante v. Holder Page 3
affiliation,” but that her family was targeted by government security forces due to her
father’s and brothers’ support of the opposition RPG forces.
A hearing on the two asylum applications was held on June 11, 2007. Kante first
testified that her father was in charge of RPG meetings and marches, but then said that
he and her brothers were RPG members who only attended events. She testified that her
father had been warned to “stay off” the RPG by people who stole from the store and
shot at the store. She testified that on October 10, 2001, a car entered the family
compound and a dozen armed men dressed in camouflage attacked the family. She said
that the men told her father that they had warned him before but he wouldn’t listen. She
claims that she was raped and beaten into unconsciousness by the men and her family
taken away in a truck. When she awoke, her family was gone. She testified that she had
heard that they attacked another family in the neighborhood as well.
Kante traveled to Conakry, a larger city about 7 or 8 hours from her town. She
was unable to learn what happened to her family. After five months she went back to
her home, but no one was there. A friend of her father’s helped her get a passport, and
she was a stowaway on a boat headed for the United States. When she arrived, a man
named Mohammad, also from Guinea, helped her with the original asylum application.
On cross-examination, Kante admitted that rebel groups from Sierra Leone came
to Macenta in 2001 and that the group that attacked her family could have been from
Sierra Leone. She admitted that she stated in her first asylum application that the group
that attacked her family took money and property from them and that she had not
conveyed in the first application her claim that she heard the rebels tell her father that
he had been warned but would not listen.
The Immigration Judge’s Decision
On June 11, 2007, the immigration judge issued a written opinion denying
Kante’s application for asylum, withholding of removal and protection under the
Convention Against Torture. He found that her testimony at the hearing and the
information supplied in the second asylum application were inconsistent with the
No. 08-4043 Kante v. Holder Page 4
original asylum application, particularly the fact that the original application made no
reference to the RPG or any political organization. He also noted that she checked “no”
in response to the question on the application concerning whether she or any member of
her family belonged to a political party or group. As for the attack, the immigration
judge found that Kante acknowledged in an asylum interview that when she used the
word “rebels” she was including both Guinean government forces or rogue individuals
from Guinea or Sierra Leone.
Given these facts, the immigration judge found no nexus between the attack on
Kante in October 2001 and her or her family’s political activity, and that she was not
“targeted for persecution” because she was part of a “particular social group,” that is,
females subject to sexual assault. He found “no evidence” that women were a
“disfavored group” in Guinea, or that there was a “pattern or practice” of persecution
against them. Finally, the immigration judge found “no evidence” that it was more
likely than not that Kante would be tortured if she returned to Guinea.
Finding Kante removable as charged, the immigration judge noted
inconsistencies among her two applications and her testimony such that Kante failed to
provide “sufficient, credible testimony and other evidence” to support her claim of past
persecution.
The Board’s Decision
On July 28, 2008, the Board of Immigration Appeals dismissed Kante’s appeal,
agreeing that Kante “failed to establish by credible evidence that any harm she may have
suffered while in Guinea was related to a protected ground” and that the inconsistencies
between her original application on the one hand and her second application and hearing
testimony on the other “was sufficient to place her veracity into question.” It also found
that Kante had failed to establish that “females subject to sexual assault” was a readily-
identifiable social group that could be defined “with sufficient particularity to delimit its
membership.” Finally, the Board found that Kante failed to show eligibility for
withholding of removal or protection under the Convention Against Torture. This appeal
followed.
No. 08-4043 Kante v. Holder Page 5
II. Discussion
Kante contends the harm she suffered was due to political opinion imputed to her
based on her father’s conduct and her membership in a particular social group. Kante
raises essentially the same issues on appeal before this Court as she raised before the
Board of Immigration Appeals, namely that the immigration judge erred: (1) in making
an adverse credibility finding; (2) in finding that the evidence did not support a nexus
between the attack on Kante and her father’s political activity; (3) in finding that women
subjected to rape as a form of government control do not constitute a “particular social
group;” and (4) in finding that Kante did not have a well-founded fear of future
persecution should she return to Guinea. She also raises for the first time in this appeal
the fact that the military junta that came to power in December 2008 constitutes
“changed circumstances” in Guinea that warrant a remand for further proceedings as to
whether she can establish a well-founded fear of future persecution under this new
regime should she return to Guinea. She does not pursue her claim under the
Convention Against Torture.
Substantial Evidence Supports the Adverse Credibility Finding and the Finding
that Past Persecution of Kante Was Not Based on the Political Activity of Her Father
A refugee is a person unable or unwilling to return to her country “because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). The persecution must be by “the government, or persons [the]
government is unwilling or unable to control.” Pilica v. Ashcroft, 388 F.3d 941, 950 (6th
Cir. 2004). If past persecution is established, a rebuttable presumption arises that the
applicant has a well-founded fear of future persecution, shifting the burden to the
government to rebut the presumption by establishing that conditions in the applicant’s
home country have changed to such an extent that the applicant no longer has a well-
founded fear of future persecution should she return. See 8 C.F.R. § 208.13(b)(1).
Alternatively, an applicant can demonstrate a well-founded fear of future persecution by
showing that she has a genuine fear and that a reasonable person in her circumstances
would fear persecution on account of a statutorily-protected ground if she returned to her
No. 08-4043 Kante v. Holder Page 6
native country. The applicant must present evidence establishing an “objective
situation” under which her fear can be deemed reasonable. Perkovic v. INS, 33 F.3d 615,
620-21 (6th Cir. 1994).
Substantial evidence supports the immigration judge’s finding that Kante failed
to establish that the attack she suffered was caused by Guinea government forces
motivated by retribution for her father’s political activity with the RPG. First, Kante
changed her description of her attackers between her first and second asylum
applications. In her original application and in the asylum interview she stated that she
did not know if the “rebels” were from Guinea or Sierra Leone, or whether they were
affiliated with any government group as they lacked insignia or uniforms that would
identify them and they did not indicate where they were from. It was only in her second
application that she specifically identified them as being affiliated with the Guinea
government.
Second, in her original application for asylum she claimed that the attackers took
money and property from her family and offered no proof that the rebels, even if they
were somehow affiliated with the Guinea government, were motivated by politics
instead of financial gain. It is only in her second application that she claimed that
“government security forces” came to her father’s store and stole goods and threatened
her father for his support of the RPG, and then at the hearing she testified that she heard
the rebels say during the attack that they had previously warned her father not to
associate with the RPG and he did not listen, indicating the attack may have been
politically motivated.
Based on these inconsistencies, the immigration judge found Kante not credible
and denied her claims for asylum and withholding of removal. The Board also pointed
to these inconsistencies in dismissing the appeal. Because the adverse credibility
findings are supported by the record, we affirm the denial of the application for asylum
and withholding of removal. Kante cites cases from the First and Ninth Circuits to
support her assertion that the “failure to file an application that is not as complete as
petitioner’s testimony does not mean the testimony is not credible.” Kante Br. at 10.
No. 08-4043 Kante v. Holder Page 7
However, this does not mean relevant inconsistencies should be ignored. Rather, as this
court has explained, “[w]hile it is true that ‘irrelevant inconsistencies cannot constitute
the basis for an adverse credibility determination,’ discrepancies may be relevant if they
can ‘be viewed as attempts by the applicant to enhance his claims of persecution.’”
Ndrecaj v. Mukasey, 522 F.3d 667, 674-75 (6th Cir. 2008) (citation omitted) (quoting
Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004)). Because the immigration judge used
the discrepancies in Kante’s application and testimony to inform an issue at the heart of
her application — that is, whether Kante suffered persecution on account of an imputed
political opinion — they could be characterized as relevant inconsistencies. Therefore,
the immigration judge did not err in basing his credibility determination on these
inconsistencies.
Besides finding that Kante did not show past persecution based on imputed
political opinion, the immigration judge also found that she did not have a well-founded
fear of future persecution should she return to Guinea. The attack by the rebels was an
isolated incident and Kante reported no more trouble once she left Macenta and stayed
with friends in Conakry and Camsar. To the extent that Kante argues that her claims
should be remanded due to current country conditions in Guinea, this Court is unable to
address that concern because we are limited to deciding Kante’s petition “only on the
administrative record on which the order of removal is based.” 8 U.S.C.
§ 1252(b)(4)(A). Moreover, we do not have the ability to remand this case to the Board
for additional fact finding, as Congress has explicitly forbidden us to do so. See Fang
Huang v. Mukasey, 523 F.3d 640, 655-56 (6th Cir. 2008). Though the conditions in
Guinea have reportedly deteriorated badly since the formation of the administrative
record, such developments are beyond the scope of our review. Should Kante believe
that recent developments affect her eligibility for asylum, the proper remedy is to file a
motion with the Board to reopen her asylum application pursuant to 8 C.F.R.
§ 1003.2(c)(3)(ii).2
2
A party must generally file a motion to reopen “within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(I); see also 8 C.F.R. § 1003.2(c)(2).
However, one exception to this ninety-day time limit is for motions “based on changed country conditions
arising in the country of nationality or the country to which removal has been ordered, if such evidence
No. 08-4043 Kante v. Holder Page 8
Kante Failed to Show Membership in a “Particular Social Group” of “Women
Subjected to Rape as a Method of Government Control”
Kante also contends that she was targeted for the attack and rape because she is
a member of a “a particular social group” of “women subjected to rape as a method of
government control” because the attack was committed by members of the Guinean
armed forces or political enemies of the RPG in retaliation for her father’s support of the
RPG. The immigration judge, as well as the Board, did not make such a finding, noting
that the definition of the “particular social group” submitted by Kante is “overly broad”
and otherwise does not meet the parameters of a “particular social group.”
The phrase “membership in a particular social group” is not statutorily defined,
but several Board decisions have refined and articulated the requirements to include:
(1) a shared “immutable” or “fundamental” characteristic; (2) “social visibility;”
(3) “particularity;” and (4) the group “cannot be defined exclusively” by the fact that its
members have been subject to harm. Matter of A-M-E & J-G-U, 24 I.&N. Dec. 69, 74
(BIA 2007), aff’d sub nom. Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007);
accord Castellano-Chacon v. INS, 341 F.3d 533, 546-50 (6th Cir. 2003), modified on
other grounds, Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). Due to the
generalized and far-reaching nature of Kante’s submitted classification, it has not
previously served as a definable limitation. See Castellano-Chacon, 341 F.3d at 548.
In addition, the group posited by Kante is circularly defined by the fact that it suffers
persecution, and the group does not share any narrowing characteristic other than the risk
of being persecuted. We have held that a social group may not be circularly defined by
the fact that it suffers persecution. In other words, the individuals in the group must
share a narrowing characteristic other than their risk of being persecuted. See Castro-
Paz v. Holder, 375 F. App’x 586, 590-91 (6th Cir. 2010). Moreover, as a factual matter,
Kante did not show that government forces used rape as a means of maintaining control
is material and was not available and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) (“The time and numerical
limitations . . . shall not apply to a motion to reopen proceedings . . . [t]o apply or reapply for asylum or
withholding of deportation based on changed circumstances arising in the country of nationality or in the
country to which deportation has been ordered, if such evidence is material and was not available and
could not have been discovered or presented at the previous hearing[.]”).
No. 08-4043 Kante v. Holder Page 9
or that the Guinean society viewed females as a group specifically targeted for
mistreatment.
Therefore, the immigration judge reasonably concluded that the social group
identified by Kante did not constitute a particular social group warranting relief within
the meaning of the Immigration and Naturalization Act and her applications for asylum
and withholding of removal on this ground were properly denied.
For the foregoing reasons, we deny the petition.