Souleye Abdoulaye v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3023

SOULEYE ABDOULAYE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A095 869 507

ARGUED JANUARY 15, 2013 — DECIDED AUGUST 1, 2013

Before POSNER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge. Souleye Abdoulaye petitions for

review of a decision of the Board of Immigration Appeals (BIA)

rejecting his petition for adjustment of status, asylum, and

withholding of removal under 8 U.S.C. § 1231 and the Conven-

tion Against Torture (CAT). The Board based its action on a

finding that Abdoulaye’s participation in a 2002 military

2 No. 12-3023

mutiny in his home country of Niger amounted to “terrorist

activity” within the meaning of the Immigration and National-

ity Act (INA) and thus rendered him ineligible for any form of

relief. The Board also denied Abdoulaye’s request for deferral

of removal under the CAT, because he failed to show that it

was more likely than not he would be tortured if returned to

Niger, and Abdoulaye challenges that conclusion. Because we

conclude that the Board’s decisions on both points were

supported by substantial evidence, we deny the petition for

review.

I

A

Abdoulaye is a native and citizen of Niger who entered the

United States on a nonimmigrant visa on August 1, 2002.

Several months after his arrival, Abdoulaye (with the assis-

tance of counsel) filed an application for asylum, withholding

of removal, and protection under the CAT. In a written

statement accompanying that application, Abdoulaye stated

that he fled Niger because he feared “being sentenced to death

or killed due to [his] planning of a military mutiny” that was

planned and executed in late July and early August of 2002.

Abdoulaye explained that he was a corporal in the Nigerien

military and a supporter of the Rassemblement Démocratique

pour le Progrès (RDP), a left-wing political party loyal to former

President Ibrahim Baré Maïnassara. Following Baré’s death in

a 1999 coup, Abdoulaye and other RDP supporters in the

military were transferred to the remote town of Diffa, appar-

ently as punishment for their loyalty to the ousted Baré.

No. 12-3023 3

In July 2002, RDP-affiliated soldiers in Diffa hatched a plot

to mutiny in order to protest low wages and poor conditions

and to demand reform. The plot included plans to seize the

regional governor of Diffa and several other officials “to

demand our rights for better living conditions.” At multiple

points in his asylum application, Abdoulaye identified himself

as an organizer of the mutiny, stating (among other things): “I

was one of the organizers of this mutiny,” “I ordered others to

carry out the actions of this mutiny,” and “I participated in the

writing of a statement that was sent to the government with

our demands which all the organizers signed.” Abdoulaye

further noted that in the weeks leading up to the mutiny he

obtained two visas—one for Belgium and the other for the

United States—in anticipation of needing to flee Niger in its

wake.

The mutiny began on July 31. Several hundred soldiers in

Diffa rose up, seized the regional governor and six other

officials, and took over the town, erecting barricades and

imposing a curfew on residents. According to news reports, the

mutineers demanded five months’ back pay, the dismissal of

the military’s chief of staff, and a meeting with the prime

minister. The mutiny was suppressed several days later when,

following a brief skirmish in which two people were killed,

government troops retook the town.

Abdoulaye was no longer in Niger when the mutiny took

place. In his statement, he reported that he received word on

July 25 that the government had plans to arrest the mutiny’s

organizers, and based on that warning, he and six other

organizers fled to Nigeria. While several of his co-organizers

chose to seek asylum in Belgium, Abdoulaye made his way to

4 No. 12-3023

the United States, arriving in New York at the beginning of

August. He fears that if he is returned to Niger he would be

arrested and either held without trial, sentenced to death by a

military tribunal, or perhaps simply killed.

B

Abdoulaye attended an asylum interview in December

2002; in May 2007, the asylum officer referred his case to an

Immigration Judge (IJ). (The record does not reveal the reason

for the five-year delay.) After several continuances, the hearing

on the merits of Abdoulaye’s application commenced on

February 5, 2009, by which time Abdoulaye had added an

application for adjustment of status based on his marriage to

a U.S. citizen. The hearing quickly focused on Abdoulaye’s role

in the 2002 Diffa mutiny and specifically on whether his actions

amounted to “terrorist activity” as that term is defined by 8

U.S.C. § 1182(a)(3)(B). When it became clear that Abdoulaye’s

counsel was not prepared to address this issue, the IJ continued

the hearing until November 12.

At both the February and November hearings, Abdoulaye

insisted that his role in the mutiny was very minor. He

emphasized that he was merely a corporal and thus not in a

position to lead or give orders. He claimed that he intended

only to participate in the mutiny, just as hundreds of his fellow

soldiers had done. He denied having any significant role in

planning the mutiny and stated that he was following orders

from his superiors. Abdoulaye further objected to the charac-

terization of the mutiny as a violent uprising, arguing that it

was more akin to a peaceful protest. He maintained that he and

his fellow mutineers did not even have weapons. He also

No. 12-3023 5

denied that the governor or others had been taken hostage;

rather, as he understood it, the soldiers had done no more than

to speak to the governor. When presented with news reports

that gave a contrary account of the mutiny, Abdoulaye

suggested the reports were inaccurate and pointed out that, in

any event, he had fled Niger before the actual mutiny.

Abdoulaye additionally disputed the accuracy of a Nigerien

government document (even though he had submitted it) that

listed him as one of six organizers of the mutiny. He suggested

that the document listed him as an organizer only because the

government did not know his whereabouts.

Abdoulaye explained the discrepancies between his

testimony to the IJ and the statements made in his original

asylum application as the product of mistakes made in

translating his written statement from French into English. He

asserted that he was only about 30% proficient in French,

suggesting that this too could account for inaccuracies in his

asylum application. He made the latter argument notwith-

standing the fact that he had consistently listed French as his

native language and relied on a French interpreter throughout

his immigration proceedings up until his final appearance

before the IJ in November 2009.

After considering the evidence, the IJ concluded that

Abdoulaye’s role in the mutiny fell within the statutory

definition of “engag[ing] in a terrorist activity.” Section

1182(a)(3)(B)(iii)(II) defines terrorist activity to include the

following:

seizing or detaining, and threatening to kill, injure,

or continue to detain, another individual in order to

6 No. 12-3023

compel a third person (including a governmental

organization) to do or abstain from doing any act as

an explicit or implicit condition for the release of the

individual seized or detained.

The IJ observed that the Diffa mutineers’ seizure of the

regional governor in order to demand changes in government

policy fell squarely within this definition, and although

Abdoulaye was not present when the seizure took place, the IJ

found that he was involved in planning the mutiny. (The

statute defines “engag[ing]” in terrorist activity to include

p r e p a r ing and planning a t er r o r ist ac t iv it y.

§ 1182(a)(3)(B)(iv)(II).) The IJ rejected Abdoulaye’s character-

ization of the mutiny as a non-violent protest involving

nothing more than a “conversation” with the governor;

Abdoulaye’s version was not supported by any evidence

beyond his own testimony, and news reports of the mutiny

from the BBC and the United Nations Office for the Coordina-

tion of Humanitarian Affairs directly contradicted Abdoulaye’s

depiction of events. The IJ also rejected Abdoulaye’s disavowal

of his role as a planner of the mutiny. The judge commented

that even if he accepted that Abdoulaye’s asylum application

overstated his role, Abdoulaye’s own testimony demonstrated

that he had been involved with the mutiny at the planning

stages. Other evidence—including Abdoulaye’s flight from

Niger on the eve of the mutiny and the government document

identifying Abdoulaye as an organizer—corroborated the fact

that his involvement was non-trivial. All of this added up, in

the IJ’s view, to the conclusion that Abdoulaye had provided

material support for terrorism, as described in Section

No. 12-3023 7

1182(a)(3)(B)(iv)(VI). This served as an alternative basis for

Abdoulaye’s inadmissibility.

Although the terrorism finding rendered Abdoulaye

ineligible for adjustment of status, asylum, and withholding of

removal under both 8 U.S.C. § 1231 and the CAT, he remained

eligible for deferral of removal under the CAT. The IJ granted

this relief after concluding that Abdoulaye had established that

he would “more likely than not” be subjected to torture if

forced to return to Niger. The IJ based this conclusion on

Abdoulaye’s expressed fear of imprisonment and torture, as

well as on U.S. State Department reports indicating that the

Nigerien government had arrested and tried soldiers involved

in the 2002 mutiny, sentencing several to prison terms of three

to seven years.

C

Abdoulaye and the government cross-appealed to the BIA,

which affirmed the IJ’s determination that Abdoulaye engaged

in terrorist activity. It declined to reach the additional question

whether Abdoulaye provided material support for terrorism.

The Board first observed that the mutineers’ seizure of the

governor brought the Diffa mutiny within the statutory

definition of terrorist activity. It then concluded that the IJ’s

factual findings that Abdoulaye was both involved in planning

the mutiny and aware that the plans included a plot to seize

the governor were not clearly erroneous. It identified

Abdoulaye’s testimony that he was involved in planning the

mutiny, his written statement, the government document

listing him as an organizer, and his decision to obtain both the

Belgian and the U.S. visas as record evidence supporting the

IJ’s findings.

8 No. 12-3023

The Board disagreed, however, with the IJ’s decision to

grant Abdoulaye deferral of removal under the CAT. It

vacated that part of the IJ’s decision, concluding that

Abdoulaye had failed to meet his burden of showing it was

more likely than not he would be tortured if returned to Niger,

as opposed to merely being arrested and imprisoned as a

lawful sanction for his role in the mutiny. The Board acknowl-

edged Abdoulaye’s testimony that many mutineers had not

been heard from since their arrests, but it noted the absence of

any evidence to support this assertion. State Department

reports contradicted Abdoulaye’s contention; they indicated

that the Diffa mutineers were in fact receiving trials and

appeals and that their prison terms ranged from three to seven

years. And while the Board acknowledged reports showing

that prison conditions in Niger are poor and life-threatening,

it concluded that poor prison conditions do not amount to

torture unless the person can show that he would likely be

targeted for poor treatment in prison or that the poor condi-

tions are “specifically intended to inflict severe pain or suffer-

ing” on the prisoners. Abdoulaye now petitions for review of

the Board’s decision, challenging both the finding that he

engaged in terrorist activity and the conclusion that he failed

to establish his eligibility for CAT protection.

II

Abdoulaye contends that a number of the Board’s determi-

nations are unsupported by the record–in particular, (1) the

Diffa event was a mutiny (as opposed to a peaceful protest)

during which the governor was seized or detained; (2) he

played a non-trivial role in planning the mutiny; and (3) it was

not more likely than not that he would be tortured if returned

to Niger. We review the Board’s findings under the “substan-

tial evidence” standard, which requires us to assess whether

No. 12-3023 9

the Board’s determination is “‘supported by reasonable,

substantial, and probative evidence on the record considered

as a whole,’” and to “reverse only if the evidence compels a

contrary conclusion.” Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th

Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)). Where the Board adopts an IJ’s decision and supple-

ments it with its own reasoning—as the Board did here with

respect to whether Abdoulaye engaged in terrorist activ-

ity—we review the IJ’s decision as supplemented. See

Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010). By

contrast, where the Board issues its own opinion independent

of the IJ’s ruling—as it did with respect to whether Abdoulaye

was eligible for deferral of removal under CAT—we review the

Board’s decision only. See Martinez-Buendia v. Holder, 616 F.3d

711, 714-15 (7th Cir. 2010).

A

The central question in this petition is whether the Board’s

finding that Abdoulaye engaged in terrorist activity is properly

supported. The definition of terrorist activity in the INA

includes “[t]he seizing or detaining, and threatening to kill,

injure, or continue to detain, another individual in order to

compel a third person . . . to do or abstain from doing any act

as an explicit or implicit condition for the release of the individ-

ual seized or detained.” 8 U.S.C. § 1182(a)(3)(B)(iii)(II) (empha-

sis added). The Board reasonably concluded that this definition

encompasses hostage-taking of the sort that occurred when the

Diffa mutineers seized the regional governor and made

demands on the government. We note, though it is of no

moment here, that the statutory definition sweeps in far more

than such paradigmatic cases of political hostage-taking

because there is no requirement that the seizure or detention be

10 No. 12-3023

politically motivated; simple kidnapping, for example, would

appear to qualify as terrorism under the statute. See Hussain v.

Mukasey, 518 F.3d 534, 537-38 (7th Cir. 2008). We can readily

dispatch Abdoulaye’s argument that the IJ had no basis for

concluding that the Diffa mutiny was violent or that the

governor was technically “seized.” News articles from multiple

sources uniformly described the mutiny as an armed uprising

that involved the seizure of the governor, and the IJ stated that

he was crediting these reports over Abdoulaye’s contrary

description of events. In the face of conflicting evidence, the IJ

was entitled to credit the evidence supporting the govern-

ment’s position. See id. at 536. Abdoulaye produced no

evidence to indicate that the news reports of the Diffa mutiny

were inaccurate, nor can he maintain that sources such as the

BBC and the United Nations are so inherently biased or

unreliable that crediting their reports would be absurd.

Abdoulaye’s remaining objection to the IJ and Board’s

findings is equally unavailing. Though Abdoulaye emphati-

cally denies having participated in planning the mutiny,

considerable evidence in the record indicates otherwise. First,

Abdoulaye’s conduct in the days leading up to the mutiny was

not what one would expect of a low-level participant: he

obtained multiple visas in anticipation of the need to flee, and

he was gone the moment he realized that the government had

gotten wind of the mutiny plot. Second, a government docu-

ment listed Abdoulaye as an organizer of the mutiny. Third,

Abdoulaye acknowledged that he was involved in the plan-

ning to at least some degree, and the IJ and Board were free to

take the position that, were it otherwise, his decision to flee

Niger before the mutiny began would not have made much

sense. Finally, there is the written statement accompanying

Abdoulaye’s asylum application. Although Abdoulaye

No. 12-3023 11

attempts to avoid that statement as something that was the

product of mistranslation and his poor abilities in French, its

description of Abdoulaye’s role in the mutiny is consistent with

the other evidence tending to show that he played a non-trivial

role in the mutiny’s planning stages. Abdoulaye’s claim that he

did not understand the contents of the written statement

because of his difficulties with French is especially unpersua-

sive. Abdoulaye did not so much as hint that he had trouble

understanding French—to the contrary, he repeatedly identi-

fied French as his native language—until his final appearance

before the IJ, at which point the damaging nature of the

statement had already become clear. In short, there was ample

evidence in the record to support the IJ’s determination that,

rather than being “a simple soldier involved in the Diffa

mutiny,” Abdoulaye was “actively involved” in planning it.

B

Nor are we persuaded that Abdoulaye met his burden of

establishing that he would likely be tortured if returned to

Niger. (We note in passing that in overturning the IJ’s determi-

nation that Abdoulaye would more likely than not be subjected

to torture if returned to Niger, the Board applied de novo

review. This was in conflict with the holdings of four of our

sister circuits, see Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012);

Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v.

Holder, 667 F.3d 523 (4th Cir. 2012); Kaplun v. Att’y Gen., 602

F.3d 260 (3d Cir. 2010). We need not decide whether this was

correct, or if not, how any error may have affected

Abdoulaye’s petition. Abdoulaye did not object to the Board’s

standard of review in his petition to this court, and arguments

not raised in a petition for review are waived. Asere v. Gonzales,

12 No. 12-3023

439 F.3d 378, 381 (7th Cir. 2006); accord Ajayi v. Aramark Bus.

Servs., 336 F.3d 520, 529 (7th Cir. 2003).) The State Department

Country Reports in the record indicate that the people

involved in the Diffa mutiny have been arrested, tried, and

imprisoned. Neither these reports nor any other evidence,

however, indicates that any of the mutineers has been tortured,

killed, or even lawfully sentenced to death. Prison sentences

for the mutineers have ranged from three to seven years, and

some mutineers have succeeded in overturning their convic-

tions on appeal. Thus, although Abdoulaye expresses fear that

he will be detained indefinitely without trial or killed should

he return to Niger, the Board was entitled to conclude that his

testimony, without more, was insufficient to contradict the

record evidence suggesting that neither outcome was probable.

Abdoulaye emphasizes that the State Department reports

acknowledge that prison conditions in Niger are “poor and life

threatening.” The reports note that prisons are severely

overcrowded, that “nutrition, sanitation, and health conditions

[a]re poor,” and that deaths from disease occur. While we are

willing to assume that prison conditions in Niger are terrible,

this alone does not demonstrate that Abdoulaye will be

tortured if he finds himself in prison as a result of his role in

the Diffa mutiny. Unpleasant though it may be, imprisonment

imposed as part of a lawful sanction does not constitute torture

in and of itself. 8 C.F.R. § 1208.18(a)(3); see also Pavlyk v.

Gonzales, 469 F.3d 1082, 1091 (7th Cir. 2006). Abdoulaye could

establish eligibility for CAT protection by showing that he was

likely to be targeted for mistreatment in prison or that the

harsh conditions in Nigerien prisons are specifically intended

to inflict pain and suffering on the prisoners, see, e.g., Kang v.

Att’y Gen., 611 F.3d 157, 165 n.3 (3d Cir. 2010) (harsh prison

conditions are not themselves a basis for relief without show-

No. 12-3023 13

ing of some sort of targeted intent to harm the applicant); Eneh

v. Holder, 601 F.3d 943, 948 (9th Cir. 2010) (same); In re J-E, 23

I. & N. Dec. 291, 300-01 (B.I.A. 2002) (same), but he has not

presented any evidence that would support either determina-

tion. Based on the record before us, we cannot conclude that

the Board erred in finding that Abdoulaye failed to carry his

burden of proof on his CAT claim.

Finding no error in the Board’s decision, we DENY the

petition for review.