Boubakary Kaba v. Eric Holder, Jr.
OPINION filed : The evidence in the administrative record before us supports the immigration judge s determination that Kaba failed to establish a prima facie case for the relief sought. It likewise supports the Board s orders dismissing his appeal and denying the motion to reopen. We therefore DENY the consolidated petitions for review, decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Martha Craig Daughtrey, AUTHORING Circuit Judge and Helene N. White, DISSENTING Circuit Judge. [11-3219, 11-3760]
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0208n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
ERIC H. HOLDER, JR., United States
Feb 27, 2013
ON PETITION FOR REVIEW
OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before: SILER, DAUGHTREY, and WHITE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Boubakary Kaba,
is a native and citizen of Cote d’Ivoire who seeks review of decisions by the Board of
Immigration Appeals dismissing his appeal from the immigration court and denying his
motion to reopen deportation proceedings. The Board ordered him removed based on the
immigration judge’s decision denying his applications for asylum, withholding of removal,
and protection under the U. N. Convention Against Torture. Kaba moved to reopen,
arguing that in the 15 months following the merits hearing in his case, conditions in Cote
d’Ivoire had deteriorated to such an extent that he would face certain persecution if he
were removed to Cote d’Ivoire. The Board denied the motion, holding once again that
Kaba had not established prima facie eligibility for asylum, in spite of the new information
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attached to his motion to reopen. Although that information reflected the existence of
violence and civil strife affecting the country as a whole, the Board determined that it did
not support a finding that Kaba would be singled out for persecution upon return or that
there existed a pattern or practice of persecution of similarly-situated persons in Cote
d’Ivoire. It therefore concluded that, based on the new information, Kaba still had failed
to demonstrate an objectively reasonable fear of future persecution. Because the denial
of relief is supported by substantial evidence, we must deny Kaba’s petitions for review.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2003, Kaba filed an application for asylum and withholding of removal
with the Department of Homeland Security. He claimed to have entered the United States
using a false passport in December 2002, but he produced no proof to confirm his date of
entry. After Kaba failed to appear at his scheduled interview, the Department of Homeland
Security determined that he was subject to removal and ordered him to appear in front of
an immigration judge and show cause why he should not be removed from the United
States. At that proceeding, Kaba conceded removability but again indicated his desire to
apply for asylum, withholding of removal, and relief under the Convention Against Torture.
In August 2009, he filed an amended application for asylum, in which he claimed that he
had been persecuted in the past and that he feared that, because of his Dioula ethnic
background, he would be killed if he returned to Cote d’Ivoire.
Kaba v. Holder
Kaba’s claims of persecution were based on a failed coup attempt in 2002 that split
control of Cote d’Ivoire between the rebel New Forces in the north and the official
government in the south. The situation eventually evolved into a full-fledged rebellion. In
2004, after the failure of peace accords, the United Nations sent 6,000 peacekeepers to
join the 4,000 French peacekeepers already in the country. In 2007, the president and the
rebel leader signed a peace agreement, which mandated elections and dismantled the
zone dividing the north and south. On October 31, 2010, the country held its first
presidential election in 10 years. After losing the election to Alassane Ouattara in a runoff,
the incumbent president, Laurent Gbagbo, refused to leave office. The two men took
separate oaths of office and remained in a standoff over the presidency until the capture
of Gbagbo on April 11, 2011.
At the hearing before an immigration judge in January 2010, Kaba was the only
witness. He testified that he was an ethnic Dioula born in Boundiali, in northern Cote
d’Ivoire. He said that during the 2002 rebellion in the northern part of the country, many
Dioulas were associated with rebel forces. According to Kaba, in December of that year,
12 “gendarmes” – secret police loyal to then-President Gbagbo – came to his shop and
accused him of being involved with the rebels. Kaba testified that one of the gendarmes
hit him with his rifle butt while others kicked him; that he was handcuffed and taken
outside, where he saw other Dioulas who were also being detained; and that he witnessed
the gendarmes kill two Dioulas who tried to escape. When he denied involvement with the
rebel forces, the gendarmes beat him and threatened to kill him. Kaba said that he was
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jailed for five days before rebels attacked the city, stormed the jail, freed the prisoners, and
killed all the gendarmes who had detained him.
Kaba also testified that he tried to return home but could not, because government
forces were fighting insurgent rebels in his neighborhood. He went instead to his aunt’s
house, where he learned that gendarmes had killed his parents and siblings. He said that
he took his passport, identification card, and birth certificate from his aunt and boarded a
bus for Mali. According to Kaba, as they neared the border, gendarmes stopped the bus
and confiscated his passport and identification card.
He claimed that one of the
gendarmes recognized him and threatened to kill him. The gendarmes then stopped a
second bus and, while their attention was diverted, Kaba joined a group that fled across
the Malian border.
In Mali, Kaba testified, he met a man who helped him travel to the United States
using a false passport and find work in Cincinnati, Ohio. He further testified that in 2005,
he went to Seattle, Washington, where his birth certificate was confiscated during a raid
by immigration agents. He claimed that he was not placed into immigration proceedings
at that time “because they were looking for a particular person.” Kaba concluded his
testimony by expressing fear that he would be killed if he returned to Cote d’Ivoire. The
stated basis for his fear was a phone conversation with his aunt in 2003, during which he
claimed that she told him not to return home because “securities” were looking for him. He
told the immigration judge that he had not spoken with anyone in Cote D’Ivoire since that
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phone call over six years earlier because he no longer had the address or phone number
of anyone living there.
At the conclusion of the hearing, the immigration judge delivered an oral opinion
denying Kaba’s requests for relief and ordering him removed to Cote d’Ivoire. After
addressing several inconsistencies in Kaba’s testimony and asylum applications, the
immigration judge found that Kaba was not credible. He also found that Kaba was subject
to the one-year asylum bar because he failed to establish, by clear evidence, the time,
place, and manner of his entry into the United States. The immigration judge next
determined that, because Kaba failed to establish a nexus between the beating he
described and a protected ground, he had not met his burden of establishing past
persecution and was therefore not entitled to a presumption of well-founded fear of future
persecution. Alternatively, the immigration judge held that Kaba could not demonstrate an
objectively reasonable fear of future persecution. He determined that, by the time of the
hearing on January 27, 2010, the civil war in Cote D’Ivoire had ended, international
authorities had intervened, the gendarmes that allegedly persecuted Kaba were, by his
own admission, long dead, and the report that he was being sought by security forces was
both uncorroborated and more than five years old. The immigration judge concluded that
the 2008 State Department country report “d[id] not support that [Kaba] would be
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specifically targeted [or] that it would be likely that he would be subjected to future
persecution in the Ivory Coast.”1
Without relying on the immigration judge’s credibility determination, the Board
dismissed Kaba’s appeal. Based on the record, we conclude that the Board could have
denied relief on any one of the bases articulated by the immigration judge. But, specifically,
the Board agreed with the immigration judge’s determination that “the end of the civil war
in [Cote d’Ivoire], the intervention of the United Nations, as well as the death of the
gendarmes that allegedly detained [Kaba] in 2002, establish that the respondent’s fear of
returning to [Cote d’Ivoire] is no longer objectively reasonable.” Because the asylum claim
depended on Kaba’s own “self-serving statements” and referred only to overall conditions
in Cote d’Ivoire, the Board held that Kaba had failed to meet his burden of proving risk of
future persecution in light of the fundamental change in circumstances. The Board
concluded that because he failed to establish his eligibility for asylum, Kaba necessarily
failed to establish his eligibility for withholding of removal and protection under the
Convention Against Torture. See Vasha v. Gonzales, 410 F.3d 863, 875 (6th Cir. 2005).
The Board dismissed Kaba’s appeal on February 16, 2011, and Kaba filed a petition to
review that decision in this court on March 3, 2011.
Kaba’s contention that the presum ption of future persecution cannot be rebutted solely on the basis
of country reports is not supported by the law of this circuit. See Ramaj v. Gonzales, 466 F.3d 520, 531 (6th
Cir. 2006) (holding that country reports “constitute substantial evidence supporting the conclusion that country
conditions in Albania have im proved to the point that any presum ption of a well-founded fear of future
persecution is rebutted”).
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8 U.S.C. § 1229a(c)(7)(C)(ii). In his brief in support of the motion to reopen, he challenged
the Board’s determination that there had been a change in circumstances sufficient to
rebut a well-founded fear of future persecution. According to Kaba, the later 2010 State
Department country report detailed extreme violence in Cote d’Ivoire in the 15 months after
the merits hearing, so as to require a remand to the immigration court for consideration of
his claims. That report, which was attached to Kaba’s motion to reopen, indicated that
political instability in Cote d’Ivoire prior to the election and the arrest of Gbago led to
various human rights abuses on both sides, including “arbitrary and unlawful killings” by
Gbago’s security forces, torture and other inhumane punishment, rape of civilians, illegal
arrests and detentions, denial of fair public trial, “sometimes life-threatening” prison
conditions, “harassment” of Ivorians with northern names, and violence against women.
Significantly, however, the evidence submitted by Kaba did not mention persecution of
Dioulas or other northern Ivorians. Moreover, the most current reports reflecting conditions
after Gbago’s capture on April 11, 2011, indicated that the situation in Cote d’Ivoire had
calmed, although order had not returned to some neighborhoods around the capital.
The Board denied the motion to reopen on June 28, 2011, holding that the evidence
submitted by Kaba still did not establish his prima facie eligibility for asylum. Kaba then
filed a petition asking us to review the Board’s denial of reopening. That petition (No. 113760) was later consolidated with Kaba’s initial petition (No. 11-3219). Although Kaba’s
brief also asks us to grant his request for asylum, the sole issue he raises on appeal
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appears to address only the propriety of the Board’s denial of the motion to reopen,
specifically “[w]hether conditions have changed in Ivory Coast since the evidence was
closed on January 27, 2010 [the date of the immigration judge’s denial of asylum], so as
to require a remand to the Immigration Court for consideration of the Petitioner’s claims in
light of changed circumstances.”
“We review a denial of a motion to reopen for abuse of discretion.” Mezo v. Holder,
615 F.3d 616, 620 (6th Cir. 2010). “The Supreme Court has made clear that reopening is
discretionary with the [Board] and that the [Board] retains broad discretion to grant or deny
such motions.” Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (citing INS v.
Doherty, 502 U.S. 314, 323 (1992)). Moreover, “[b]ecause the [Board] has such broad
discretion, a party seeking reopening or reconsideration bears a heavy burden.” Id.
(citation and internal quotations marks omitted). As a result, we will overrule the Board
only if “the denial ‘was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as invidious discrimination
against a particular race or group.’” Acquaah v. Holder, 589 F.3d 332, 334 (6th Cir. 2009)
(quoting Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009)).
A motion to reopen “shall state the new facts that will be proven . . . and shall be
supported by affidavits or other evidentiary material” and “must be accompanied by the
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appropriate application for relief and all supporting documentation.”
§ 1003.2(c)(1). The motion “shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing.” Id. Alternatively, the Board may deny the
motion if the movant fails to establish prima facie eligibility for the relief sought. See
Doherty, 502 U.S. at 323; Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008). Kaba
thus bears the “heavy burden” of establishing that, if the proceedings were reopened, the
new evidence would likely change the outcome of the case. Matter of Coelho, 20 I. & N.
Dec. 464, 473 (BIA 1992).
In denying Kaba’s initial appeal, the Board held that, because of a fundamental
change in circumstances in Cote d’Ivoire between 2002, when Kaba left the country, and
2010, when the immigration judge denied relief, Kaba could not establish a well-founded
fear of future persecution. In his motion to reopen in front of the Board, Kaba argued that,
in the months following the merits hearing in his case, conditions in Cote d’Ivoire
deteriorated “so as to require a remand to the Immigration Court for consideration of his
claims in light of changed circumstances.” After analyzing the evidence attached to the
motion, the Board found that Kaba still could not make out a prima facie case of his
statutory eligibility for asylum.2
As previously noted, Kaba argued that he was entitled to a presum ption of future persecution based
on past persecution, apparently referring to the provision in 8 C.F.R. § 1208.13(b)(1). The Board explicitly
declined to address Kaba’s credibility and whether or not he had established past persecution. Instead it
determ ined that, even if Kaba were entitled to the presum ption, it had been rebutted by the governm ent’s
evidence of changed country conditions, as perm itted under § 1208.13(b)(1)(i)(A).
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We agree. Under standards adopted by the Board, prima facie evidence is proof
that “reveals a reasonable likelihood that the statutory requirements for relief have been
satisfied.” In Re S-V-, 22 I & N Dec. 1306, 1308 (BIA 2000). The Attorney General has
the “discretion to grant asylum to a refugee who shows that [he] has suffered past
persecution ‘on account of race, religion, nationality, membership in a particular social
group, or political opinion,’ or that [he] has a well-founded fear of future persecution on
these grounds.” Bi Xia Qu v. Holder, 618 F.3d 602, 606 (6th Cir. 2010) (quoting 8 U.S.C.
§ 1101(a)(42)). To establish a well-founded fear of future persecution, an asylum applicant
must demonstrate: “‘(1) that [he] has a fear of persecution in [his] home country on account
of race, religion, nationality, membership in a particular social group, or political opinion,
(2) that there is a reasonable possibility of suffering such persecution if [he] were to return
to that country, and (3) that [he] is unable or unwilling to return to that country because of
such fear.’” Id. (quoting Singh v Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005)). A wellfounded fear of future persecution can be based either on a likelihood of harm specifically
targeted at the applicant or a pattern or practice of harm to others similarly situated. See
Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005) (citation omitted); 8 C.F.R.
The dissenting judge asserts that “for purposes of this appeal, Kaba is entitled to a presum ption that
he had a well-founded fear of future persecution” but fails to locate the basis for such an entitlem ent. As
indicated above, such a presum ption results from proof of past persecution. However, there is no finding by
either the im m igration judge or the Board that Kaba suffered past persecution. The m ost that the record
dem onstrates is an assumption of past persecution by the Board, one obviously presented arguendo and,
therefore, com pletely hypothetical in nature.
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In this case, the Board determined that Kaba had not met the “heavy burden” of
establishing that the new evidence would change the result in his case, stating:
We agree with [the Department of Homeland Security] that the respondent
has not submitted material evidence demonstrating his prima facie eligibility
for asylum. First, although the background evidence discusses violence and
the overall poor conditions in the [Cote d’Ivoire], this evidence does not alter
our prior finding that there has been a fundamental change in circumstances
in [Cote d’Ivoire] due to the intervention of the United Nations and the death
of the gendarmes that allegedly detained and beat the respondent. Further,
the government held its fi[r]st presidential election in 10 years and the leader
in charge during the respondent’s alleged past persecution, President
Laurent Gbagbo, was ousted from power in April 2011. Moreover, as
observed by [the department], the background documents submitted by the
respondent reflect conditions of general civil strife, which impact the country
as a whole, and do not demonstrate the respondent’s prima facie eligibility
The record fully supports the Board’s determination. The documents that Kaba
submitted in connection with his motion to reopen describe general instability and a
number of instances of violence between pro-Ouattara and pro-Gbagbo forces during the
fallout from the disputed presidential election. But Kaba does not argue that he is a
member of either political group or that there has been systematic persecution of Dioulas
or northern Ivorians by the current government. Although the 2010 country report does
refer to violence in Kaba’s hometown, Kaba does not allege that Dioulas face greater risks
than other Ivorians. In fact, the circumstances alluded to in the motion to reopen affect
every resident of Cote d’Ivoire.
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Hence, what Kaba identifies is “civil unrest between competing political factions . . .
not persecution.” Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (citation and internal
quotation marks omitted). The only evidence indicating that Kaba was at risk for
individualized persecution was the alleged phone call to his aunt, back in 2003, but there
was no evidence in the record to corroborate this claim. As a result, the Board did not
abuse its discretion in determining that this isolated incident, even if proven, was
insufficient to support a finding of well-founded fear of future persecution. See Mapouya
v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007) (“[A]n applicant cannot rely on speculative
conclusions or mere assertions of fear of possible persecution, but instead must offer
reasonably specific information showing a real threat of individual persecution.” (citation
and internal quotation marks omitted)).
In summary, Kaba claims that “reasonable persons are afraid to return home . . .
because of the climate of fear,” but he has presented no evidence indicating that he might
be singled out if he is deported to Cote d’Ivoire.3 It is well established that “conditions of
political upheaval which affect the populace as a whole or in large part are generally
insufficient to establish eligibility for asylum.” Ali, 366 F.3d at 410 (citation omitted).
Because Kaba has not demonstrated “more than the existence of a generalized or random
Although Kaba contends that the m otion to reopen introduced new evidence dem onstrating that
country conditions had “devolved into a disaster of international scale,” none of his evidence rebuts the
Board’s conclusion that the fall of Gbagbo and the presence of international peacekeepers virtually elim inated
the risk of persecution of Kaba individually. The evidence attached to the m otion is largely irrelevant to his
asylum claim . See Liti v. Gonzales, 411 F.3d 631, 639 (6th Cir. 2005) (“Though the docum ents subm itted by
the [respondents] detail a num ber of instances of violence, corruption, and protest within the country, nothing
specifically supports their claim that were they to return, they would be persecuted.”).
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possibility of persecution,” he has not established a prima facie case for the relief sought.
Castellano-Chacon v. INS, 341 F.3d 533, 550 (6th Cir. 2003).
The evidence in the administrative record before us supports the immigration
judge’s determination that Kaba failed to establish a prima facie case for the relief sought.
It likewise supports the Board’s orders dismissing his appeal and denying the motion to
reopen. We therefore DENY the consolidated petitions for review.
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HELENE N. WHITE, Circuit Judge, dissenting.
Because I believe that the government did not establish by a preponderance of the
evidence that changed country conditions in Cote D’Ivoire obviated Kaba’s fear of future
persecution, I respectfully dissent.
In considering the BIA’s dismissal of Kaba’s appeal from the IJ decision denying
Kaba’s asylum claim, we review the BIA’s legal determinations de novo and its factual
conclusions for substantial evidence. Sanusi v. Gonzales, 474 F.3d 341, 345 (6th Cir.
2007). Under the substantial evidence standard, the BIA’s findings are “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (citations
The BIA did not address whether Kaba had established past persecution, but
instead determined that assuming Kaba had faced past persecution, there was a
fundamental change of circumstances that rebutted the presumption of future persecution.
To reach that conclusion, the BIA agreed with the IJ’s holding that,
[T]he end of the civil war in the Ivory Coast, the intervention of the United
Nations, as well as the death of the gendarmes that allegedly detained the
respondent in 2002, establish that the respondent’s fear of returning to the
Ivory Coast is no longer objectively reasonable.
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The BIA further found that “[w]hile the Department of State Country Reports and other
objective evidence contained in the record do discuss the overall poor conditions in the
Ivory Coast, none of this evidence specifically discusses the respondent.” Accordingly, the
BIA held that Kaba had not established a well-founded fear of future persecution.
Because for purposes of this appeal Kaba is entitled to a presumption that he had
a well-founded fear of future persecution,1 the burden is on the government to establish by
a preponderance of the evidence that changed country conditions in Cote D’Ivoire obviate
that fear. Vincent v. Holder, 632 F.3d 351, 356 (6th Cir. 2011). Kaba argues that the end
of the civil war, the intervention of the United Nations, and the death of the gendarmes who
detained him are each insufficient to rebut this presumption.
The third reason cited by the BIA—that the gendarmes who detained Kaba in 2002
were subsequently killed by rebels—clearly cannot support a finding that Kaba no longer
had a well-founded fear of persecution. Kaba never alleged that he was personally being
targeted by specific individuals, but rather that the government’s security forces were
targeting Dioulas as a group because the government believed Dioulas were members of
Because the BIA proceeded on the assum ption that Kaba suffered past persecution, we m ust
proceed on that basis on appeal. The logic of this position is self-evident. If a lower tribunal concedes an
issue in a party’s favor, the appellate tribunal cannot deny the party the benefit of that concession in deciding
the issues on appeal. Hypothetical or not, our review proceeds on the assum ption that Kaba suffered past
persecution. Further, the statute provides that where there is past prosecution, the petitioner enjoys the
presum ption of a well-founded fear of future prosecution. See 8 C.F.R. § 1208.13(b)(1). That presum ption
does not disappear where the past persecution is assum ed arguendo. The BIA recognized this and found
that the presum ption had been overcom e. The only issue in this appeal is whether that finding is adequately
supported by the record. Hence, in this appeal, Kaba is entitled to the presum ption of a well-founded fear of
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rebel groups, and that Kaba was persecuted on account of that belief. Accordingly, that
the specific individuals who detained him may have died has no bearing on whether Kaba
continues to have a well-founded fear of persecution by government security forces on
account of his status as Dioula.
The first two reasons cited—the end of the Civil War and involvement of the United
Nations—theoretically offer greater support that the country conditions have fundamentally
changed. However, on the basis of the 2008 U.S. State Department Human Rights Report,
upon which the government primarily relied to argue that the country conditions had
changed, it is a close case whether the government could have carried its burden to rebut
the presumption to which Kaba was entitled. Although the report notes that the President
and rebels signed the Ouagadougou Political Agreement (OPA) in 2007 to hold elections
and dismantle the “zone of confidence” dividing north and south Cote D’Ivoire, which
resulted in some improved civil administration and the distribution of birth certificates, the
report notes that “implementation of other key tenets of the OPA—including disarmament
of armed factions and determination of citizenship—remained incomplete.” The report also
noted that “[t]he government’s human rights record improved slightly during the year but
continued to be poor,” and that “[s]ecurity forces continued to commit extrajudicial killings
with impunity, and government militia groups were responsible for killings, disappearances,
and harassment. These crimes often went unreported or underreported due to fear of
reprisals.” The report specifically attributes some of the violent crimes to progovernment
militia groups and gendarmes, which are the same groups, led by the same government
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leaders, that Kaba alleged imprisoned him in 2002.2 Although the report does not mention
Kaba’s ethnic group by name, it does note that “police officers continued to extort bribes
from persons of northern origin or with northern names,” such as Kaba. And nothing in the
report suggests that Kaba’s ethnic group had ceased to be a target, or that his town had
become peaceful. See Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004) (agreeing
with every Court of Appeals that has so far considered the issue, that “evidence of changed
country conditions can successfully rebut an alien’s fear of future persecution based on
past persecution only if that evidence addresses the specific basis for the alien’s fear of
persecution; generalized improvements in country conditions will not suffice as rebuttals
to credible testimony and other evidence establishing past persecution”), abrogated on
other grounds, Nbaye v. Attorney General of United States, 665 F.3d 57, 59–60 (3d Cir.
The governm ent of Cote D’Ivoire was led by form er President Gbagbo at the tim e of the civil war in
2002 as well through the rest of the decade. He was arrested in April 2011, a fact which m ay have bearing
on the m otion to reopen, but which this Court m ay not consider in evaluating whether the BIA erred in its initial
dism issal of the appeal. Lin v. Holder, 565 F.3d 971, 978–79 (6th Cir. 2009) (holding that this Court m ay not
take judicial notice of facts, including country reports, outside the adm inistrative record). For the sam e reason,
the supplem ental cases subm itted by the governm ent, which stand for the proposition that a presum ption of
past persecution m ay be rebutted in political persecution cases by a showing that the persecutor is no longer
is in power, are also not relevant. Even if this Court could take judicial notice of the fact that Gbagbo was
arrested, those cases deal with political persecution, not ethnic persecution, and in any event do not establish
a per se rule that a leader’s rem oval from power rebuts a presum ption of future persecution. See e.g. Trifoni
v. Holder, 351 F. App’x. 19, 23 (6th Cir. 2009) (“[T]he Governm ent can often rebut the presum ption in political
persecution asylum cases by showing that the applicant’s persecutors are no longer in power.”) (em phasis
added); Chieh v. Holder, 411 F. App’x 800, 803 (6th Cir. 2011) (upholding the BIA’s finding that Charles
Taylor’s “rem oval from power [in Liberia], and the salutary changes flowing from the ouster, established that
[petitioner’s] fear of future persecution . . . is not well founded”).
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Kaba argues that the OPA has had virtually no effect on the conditions in Cote
D’Ivoire. In fact, an article that was included in the administrative record notes that a UN
Panel was warned of escalating violence “as parties are rearming despite an UN arms
embargo imposed since 2004.”
The BIA cited Ramaj v. Gonzales, 466 F.3d 520, 531 (6th
Cir. 2006), in rejecting Kaba’s contention that the presumption of future persecution cannot
be rebutted solely on the basis of a Department of State Country Report. However, in
Ramaj, the applicant sought asylum based on persecution in Albania on the basis of
various political activities, but an IJ found that the country reports established that in recent
years a consensus had developed among international and nongovernmental
organizations that “Albanians have been able to exercise freely their right to change their
government through democratic means and that such a right includes the ability to
organize and campaign broadly, free from government interference.” Id. at 523, 531. This
Court found that those reports constituted substantial evidence supporting the conclusion
that the country conditions had improved to the point of rebutting a presumption of a wellfounded fear of future persecution. Id.
Here, the country reports are not nearly as clear-cut. Although the parties to the
conflict signed an agreement to hold elections, the reports did not establish that the parties
to the conflict had disarmed or disbanded. On the other hand, the government is correct
to assert that the civil war of 2002–03 had ended and the United Nations had deployed
peacekeepers to the country in 2004. But on the basis of reports of continued violence
committed by the same forces, and directed towards the same rebel groups towards which
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it was directed in 2002, it is more than likely that substantial evidence does not support the
conclusion that the government has established that the changes in the conditions are so
fundamental that they are sufficient to rebut the presumption that Kaba’s fear is wellfounded.
Accordingly, I would vacate the BIA’s finding that Kaba has not established a wellfounded fear of future persecution, and remand to the BIA to rule on whether Kaba was
credible and whether he established past persecution.
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