Law School Case Brief
Afriyie v. Holder - 613 F.3d 924 (9th Cir. 2010)
As with asylum, to show past persecution, an applicant for withholding of removal must show that government forces have either directly persecuted him or were unable or unwilling to control private persecutors. Moreover, also as with asylum, for the purpose of withholding, a finding of past persecution triggers a presumption of future persecution. 8 C.F.R. § 1208.16(b)(1)(i). The government can rebut such a presumption by showing that internal relocation is both safe and reasonable under all the circumstances. § 1208.16(b)(1)(i)(B). Section 1208.16(b)(3) outlines the same reasonableness considerations as exist in the asylum context.
Petitioner Stanley Onusu Afriyie, aka Stanley Owusu Afriyie, a citizen of Ghana, was persecuted by Muslims because he proselytized as a Baptist preacher in predominantly Muslim areas. He fled to the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture. The Board of Immigration Appeals (BIA) denied his application for asylum and withholding of removal, concluding that Afriyie failed to show that the Ghanaian government was unable or unwilling to protect him. Alternatively, the BIA concluded that Afriyie could safely relocate in his home country. Afriyie filed a petition for review.
Did Afriyie sufficiently establish that the Government of Ghana would not protect him from torture if he returned?
The court of appeals granted the petition for review as to Afriyie's claims for asylum, withholding of removal, relief under the Convention Against Torture and his motion to expand the record as to a Department of State country report. The court denied the petition for review as to Afriyie's motion to expand the record so as to include a certain news article discussing persecution of Christians by Muslims. The court ruled that the BIA made numerous factual errors in its "unable or unwilling" analysis, ignoring evidence favorable to Afriyie, misstating the his testimony, and improperly treating as irrelevant police reports made by individuals other than Afriyie. A reasonable fact-finder would have been compelled to conclude that the government of Ghana was unable, or in the alternative unwilling, to protect Afriyie. The BIA ignored portions of Afriyie's testimony that specifically indicated the Ghanaian police forces lacked the resources necessary to protect him. The BIA also ignored Afriyie's testimony that even if the police could protect him if they so desired, they demanded bribes for their services. The case was remanded to the BIA to ensure that it evaluated the relocation issue in accord with the proper burden of proof and that it considered the requisite regulatory factors pertinent to the reasonableness analysis.
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