                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2008

Massaquoi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2417




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NOT-PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-2417


                                  TAI MASSAQUOI,

                                                     Petitioner
                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES.

                               _____________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A97-669-440)
                    Immigration Judge: Honorable Robert P. Owens
                                        ____
                              ____________________

                                Argued October 21, 2008

      Before: SMITH, COWEN, Circuit Judges, and THOMPSON, District Judge *

                               (Filed: November 20, 2008)

Benjamin D. Yerger (Argued)
126 East Chestnut Street
Lancaster, PA 17602
      Counsel for Petitioner




      *
         The Honorable Anne E. Thompson, Senior United States District Judge for the
District Court of New Jersey, sitting by designation.

                                           1
Edward J. Duffy
Jeffrey L. Menkin (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
       Counsel for Respondent
                              _______________________

                                      OPINION
                               _______________________


Thompson, District Judge.

       Tai Massaquoi, a native and citizen of Liberia, petitions to review a decision from

the Board of Immigration Appeals (“BIA”) ordering his removal to Liberia. The BIA, in

so doing, reversed a ruling of the Immigration Judge (“IJ”) to grant Massaquoi asylum.

Massaquoi contends that if he is removed, he will be persecuted due to his mental illness.

The Government argues Massaquoi has not sufficiently established his grounds for

asylum. This Court has jurisdiction pursuant to 8 U.S.C. § 1252. For the reasons stated

below, we will deny the Petition for Review.

       Massaquoi, 28, entered the United States on July 29, 1983. At entry, he was three

years-old. He was admitted on a visitor’s visa and never left. In 1997, Massaquoi was in

a car accident which left him with permanent brain damage, and subsequently doctors

diagnosed him with mental illness. His symptoms include auditory and visual

hallucinations, disorganized thought process, lack of concentration, and bizarre behavior.



                                             2
In June 2004, Massaquoi was convicted of indecent assault. Six weeks later, he was

convicted of theft, receiving stolen property and retail theft.

       In May 2006, the Government charged Massaquoi with removability on account of

his overstaying his visa and his crimes of moral turpitude, pursuant to his 2004

convictions. Massaquoi conceded removability, and, with the assistance of counsel,

sought asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). Massaquoi originally based his claims for relief on his membership in a

particular social group–the severely and obviously mentally ill–as well as his religion.

But, after speaking with counsel, Massaquoi narrowed his claim to his membership in a

particular social group–namely, the mentally ill.

       In May 2006, IJ Robert P. Owens heard testimony from Massaquoi and an expert

witness, Dr. Emmanuel Dolo. Dr. Dolo testified about the scarcity of mental health care

in Liberia as well as public perceptions associated with the mentally ill, and the

conditions awaiting Massaquoi in Liberia, should Massaquoi return. Citing Massaquoi’s

condition, Dr. Dolo testified that Massaquoi would have difficulty proceeding through the

airport. Dr. Dolo testified that Massaquoi would have his clothes and money taken and

that he would act out if his medical illness were to go untreated. Dolo stated he believed

Massaquoi would face persecution from Liberians who would misconstrue his behavior

as intentional or associated with witchcraft and would shun, stone or beat Massaquoi.

       The IJ found Massaquoi and Dr. Dolo credible but ultimately denied Massaquoi’s



                                               3
application for asylum and withholding of removal. The IJ concluded that Massaquoi had

not established it was more likely than not that each of Dr. Dolo’s predictions would

come true, citing In re J-F-F-, 23 I&N Dec. 912 (A.G. 2006). Applying In re J-F-F-, the

IJ denied withholding. The IJ also denied CAT relief, reasoning that although there is

only one certified psychiatrist in Liberia and no mental health clinics or other care for the

mentally ill, Liberia’s inability to provide mental health care because of limited resources

does not constitute torture. Massaquoi appealed to the BIA.

       The BIA held that the IJ had applied the wrong burden of proof in deciding

Massaquoi’s asylum claim and adjudicating whether persecution was too speculative

under In re J-F-F-. The BIA indicated that the correct standard in deciding Massaquoi’s

claim was not whether it was more likely than not that Massaquoi would face persecution,

but rather if Massaquoi had a well-founded fear of persecution if he were removed to

Liberia. The BIA remanded the matter back to the IJ.

       On remand, Massaquoi’s claim was heard once again by IJ Owens. He determined

Dr. Dolo’s predictions “could constitute persecution” and, accordingly, that Massaquoi

would suffer persecution on account of his mental illness. IJ Owens highlighted the

stigma or taboo of mental illness in Liberia because of its association with witchcraft; he

also noted the lack of mental health care available in Liberia and Massaquoi’s lack of

family there. Accordingly, the IJ concluded Massaquoi had presented a well-founded fear

of persecution and granted asylum, but did not rule on Massaquoi’s claims regarding



                                              4
withholding of removal or his claims under CAT. The Government appealed to the BIA.

       On appeal, the BIA reversed the IJ once more, concluding Massaquoi had not

submitted any evidence that the government of Liberia had a policy of state action against

the mentally ill. The BIA concluded that the potential for persecution based on Dr.

Dolo’s predictions was too speculative to establish a well-founded fear of persecution.

The BIA vacated the IJ’s grant of asylum, determined Massaquoi had failed to meet the

standards for withholding of removal and CAT relief, and ordered Massaquoi removed to

Liberia. Massaquoi now petitions this Court for review.

       To qualify as a “refugee” who may receive asylum, an alien must establish that he

is unable or unwilling to return to his or her country of nationality “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.” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (citation omitted). The persecution alleged must be at the hands of

“the government or forces the government is either unable or unwilling to control.” Gao

v. Ashcroft, 299 F.3d 266, 272 (3d. Cir. 2002) (citation omitted).

       The BIA and this Court have interpreted “persecution” to include conduct or

conditions “so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). Thus, “persecution does not encompass all treatment that

our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. at 1240.

The petitioner has to do more than merely string together a collection of suppositions. In



                                              5
re J-F-F-, 23 I&N Dec. 912 (A.G. 2006).

       Here, Massaquoi contends that because he suffers from mental illness, he is a

member of a group that warrants protection. He next alleges that his removal to Liberia

would subject him to harm on account of this illness. To support his claim, Massaquoi

relies heavily on the testimony of Dr. Dolo. Dr. Dolo opined that if Massaquoi were

removed to Liberia, upon arrival at the airport, he would likely have difficulty moving

through the country. Dr. Dolo further stated Massaquoi would have his clothes and

money taken and would likely be persecuted because native Liberians would misconstrue

his mental illness for witchcraft. Finally, the lack of adequate mental health treatment

centers would provide no assistance in rehabilitating Massaquoi.

       Applying In re J-F-F- to the instant matter, this Court concludes Massaquoi has

not established his claim for asylum with the specificity and certainty required of him.

Massaquoi has merely offered Dr. Dolo, whose testimony as to the harm awaiting

Massaquoi at the airport in Liberia is tenuous, speculative and uncorroborated. Neither

Massaquoi nor Dr. Dolo have presented any solid evidence that would substantiate the

claims of future persecution, allowing a reasonable factfinder to conclude that Massaquoi

had a well-founded fear of persecution.

       Moreover, Massaquoi has not presented any evidence that suggests authorities in

Liberia are unable or unwilling to control any harm that may befall Massaquoi, as

articulated in Gao. Gao, 299 F.3d at 272. Massaquoi presented no evidence that Liberia



                                             6
has a policy of state action directed against the mentally ill. Rather, he relies on the

possible fear of future harm at the hands of private actors, not under the control of the

government, as the basis of his asylum application.

       For Massaquoi to be successful in his claim, he must meet the showing outlined in

In re J-F-F-, and establish that his fear of persecution was well-founded. The evidence in

this record does not support Massaquoi’s assertion that he has satisfied this requirement.

Accordingly, we will deny the Petition for Review.




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