On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A097-121-795.
The opinion of the court was delivered by: Berzon, Circuit Judge
Argued and Submitted March 9, 2010 -- Seattle, Washington
Before: A. Wallace Tashima, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.
Under our immigration statute an applicant for asylum or withholding of removal can rely on persecution by private parties as a ground for relief from removal if he can show that the government of his country of origin is unable or unwilling to control that persecution. This case concerns the application of the unable or unwilling standard.
Stanley Afriyie, a citizen of Ghana, was persecuted by Muslims because he proselytized as a Baptist preacher in predominantly Muslim areas of Ghana. He fled to the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). 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 and, in the alternative, that Afriyie could safely relocate in his home country. We conclude the BIA erred by denying Afriyie asylum and withholding of removal, taking this opportunity to clarify the unable or unwilling standard applicable to non-governmental persecution. In light of our analysis of the "unable or unwilling" asylum and withholding issue, we also remand Afriyie's CAT claim for further consideration of whether Ghanaian police acquiesced in Afriyie's torture.
Stanley Afriyie is a forty-one-year-old citizen of Ghana, born in that country's capital, Accra. Afriyie became a Baptist in 1999, and the following year began to preach the gospel, traveling from town to town. Afriyie later founded and led a five-member group called "Lack of Knowledge My People Perish." The group proselytized in Ghanaian villages on weekends in heavily Muslim areas, attempting to convert people to the Baptist faith.
Afriyie testified that his religious activities aroused anger in the Muslim population and that, as a result, he was targeted for persecution on account of his religion. His first difficulties, he stated, came in April 2002, when he and the group went to a predominantly Muslim village. Afriyie preached, using a microphone, in the street. The Muslim villagers became hostile, complaining about Afriyie's attempt to convert them to the Baptist religion, and, as time went on, some turned violent: They chased and attacked Afriyie and his fellow group members with sticks. Afriyie was beaten unconscious and went to the hospital for treatment, where he stayed overnight. The following day, Afriyie became fearful that his attackers would find him if he remained in the area, so he left the hospital even though he had been told that he would need to remain hospitalized for two weeks.
Afriyie reported this attack to the police, who were located near, but not in, the town where Afriyie had been beaten. The police officers asked Afriyie to complete a written report of the crime. Afriyie did so, describing the crime but noting only the village in which the assault occurred, not the precise location. He did, however, give the police further details orally about the location of the crime. Afriyie testified at his hearing that although he later requested information about whether the police had investigated the assault, the police refused to disclose whether they had made any inquiries into the crime and, if so, what kind.
After the assault, Afriyie was afraid to preach in Muslim villages and so stopped proselytizing for a while. But, Afriyie testified, in time the Holy Spirit came to him when he was sleeping and urged him to begin proselytizing again. So, in March 2003, Afriyie and his group ventured into a different Muslim village, Aboabo. When Afriyie began preaching, a group of Muslim villagers opposed to attempts at conversion approached and warned him to stop his efforts. That night, Afriyie and his group stayed with a woman who offered them a room, but the home was invaded during the night and the group fled.
At some point-Afriyie did not say precisely when- Afriyie and his group asked the police for protection during their forthcoming preaching sessions, but the police had only one gun for the entire station. In any event, Afriyie testified, "[y]ou have to pay the police" to receive protection. Ordinarily, the police tell victims to get the culprits on their own and bring them to the police station.*fn1
The same month as the Aboabo assault, three of Afriyie's four group members were murdered in separate incidents. One of the group members was stabbed to death one week after the Aboabo incident. The victim's household reported the murder to the police, who stated that they had no evidence to solve the crime.
After the stabbing, the remaining members of Lack of Knowledge My People Perish met to discuss whether to continue proselytizing. Soon thereafter, a second group member, Isaac, was the victim of a planned attack: he encountered a tree blocking the road while driving and was beaten to death by a group of six to twelve people with sticks when he left his car. Afriyie did not attend Isaac's funeral because he believed his own life was in danger. A third group member was murdered at night that same month. Afriyie believed that all three group members were killed by Muslim villagers.
After the three murders, Afriyie went into hiding. Soon thereafter, visitors came to Afriyie's village and set afire his sister's house, where he had previously been staying. Afriyie's sister and nephew were killed in the blaze. After the fire, Afriyie's mother called him and told him that "whatever [he] was doing [he] should put a[n] end to it because it burned [his sister's] house." The fire and resulting death of Afriyie's sister were reported to the police, but there apparently was no resolution to the case.*fn2 Baptist church elders then told Afriyie "that from the look of things [he] should leave town." Afriyie then fled Ghana, eventually arriving in the United States, where he applied for asylum, withholding of removal, and relief under the Convention Against Torture.*fn3
Afriyie proceeded pro se in his immigration hearing, where he testified to the above facts. During the hearing, the government asked numerous questions about whether Afriyie could safely return to Ghana. Afriyie was sure he could not: "[I]f [he] were to go back the Muslims . . . [would] find out that [he was] there, [and] they[ ] [would] attack [him] again. . . . If [he] were to go to Ghana, once [he] start[s] preaching, then they'll know [him]." The government specifically asked Afriyie if he could do his missionary work in Accra; Afriyie responded that he had preached in a suburb of Accra but would be targeted anywhere in the country because of his reputation.
The government introduced two official reports to support its contention that Afriyie could relocate in Ghana: One, a Department of State report, indicated that Christians live throughout Ghana, making up 69 percent of the population, and that the majority of Muslims are concentrated in the northern part of the country and in urban centers, including Accra. The report indicated that Ghanaian authorities sought to protect religious freedom and "did not tolerate its abuse, either by governmental or private actors." In addition, a guidance document from the British Home Office stated that police in Ghana were criticized in 2004 for corruption and negligence, but that there were channels for complaints by the public against the police. As a result, the guidance document concluded, there was "no evidence that Christians and converts to Christianity are not able to seek and receive adequate protection from the state authorities."
The Immigration Judge (IJ) found Afriyie credible and concluded that he had suffered past religious persecution, relying on the incident in which Afriyie was beaten unconscious. Accordingly, the IJ determined, Afriyie was entitled to a presumption that he would be persecuted if he returns to Ghana. See 8 C.F.R. § 1208.13(b)(1). The IJ also decided, however, that "the evidence establishes the Government of Ghana would attempt to protect [Afriyie] from persecution on account of his religion," and that Afriyie would be able to relocate to another part of Ghana where he would be safe from persecution.
As to the relocation issue, it is not clear on whom the IJ placed the burden of proof: The IJ stated, on the one hand, that "but for [Afriyie's] testimony, he offered no evidence that [relocation in Ghana] would not be reasonable," and noted that Afriyie "ha[d] not established by competent[,] credible objective evidence that he could no[t] relocate to be safe in Ghana." But the IJ later described his conclusion as "find[ing] that the Government ha[d] rebutted the presumption that the respondent could not relocate in Ghana to be safe."
As to withholding of removal, the IJ found that Afriyie necessarily failed to qualify, as the standard is more stringent than for asylum. Finally, the IJ denied Afriyie's CAT claim on the ground that Afriyie had not established either that Ghana would not protect him from torture or ...