Filed: Feb. 01, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-1-2006 Rodgers v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2007 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Rodgers v. Atty Gen USA" (2006). 2006 Decisions. Paper 1652. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1652 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-1-2006 Rodgers v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2007 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Rodgers v. Atty Gen USA" (2006). 2006 Decisions. Paper 1652. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1652 This decision is brought to you for free and open access by the Opinions ..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-1-2006
Rodgers v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2007
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Rodgers v. Atty Gen USA" (2006). 2006 Decisions. Paper 1652.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1652
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-2007
___________
OMALI ADEKA RODGERS,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A97-133-163)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 17, 2006
Before: ROTH, FUENTES, and BECKER Circuit Judges.
( Filed: February 1, 2006 )
________________________
OPINION
________________________
FUENTES, Circuit Judge:
Petitioner Omali Adeka Rodgers (“Rodgers”) seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial
of his applications for asylum, withholding of removal, and protection under the
Convention Against Torture. In so ruling, the BIA affirmed without opinion the findings
of the IJ that Rodgers did not have a well-founded fear of future persecution. For the
reasons that follow, we deny the petition for review.1
I. Facts
Because we write only for the parties, we recite only the essential facts.
Rodgers is a twenty-seven-year-old single father of two children and is a native
and citizen of Guyana. He alleges that, on October 25, 2002, while visiting cousins in
Georgetown, Guyana, he and his cousins witnessed an altercation involving gunfire
between policemen and members of a gang known as the “Phantom Force.” The next
day, he read about the incident in the newspaper and learned that the Phantom Force was
working with the police. When he returned to his hometown of Linden, he told family
and friends about what he witnesses. One month later, approximately ten men stopped
him on the street and beat him, telling him to stop talking about what he witnessed in
Georgetown. He recognized one of the men as a drug dealer for the Phantom Force in
Linden. He was taken to the hospital and reported his beating to the police, who told him
1
Where, as here, the final order of the BIA summarily affirms or defers to the decision
of the IJ, this Court “must review the IJ’s decision.” Abdulai v. Ashcroft,
239 F.3d 542,
549 n. 2 (3d Cir. 2001).
2
that they lacked sufficient evidence to investigate the matter.
Rodgers’s cousins left Guyana two months after they witnessed the shooting, but
returned four months later. Rodgers’s cousins were killed approximately one month after
their return. Rodgers alleges that his cousins were killed in a manner that strongly
suggests they were murdered by the Phantom Force. Rodgers left Guyana on April 14,
2003, shortly after the death of his cousins.
Rodgers alleges that the Phantom Force will murder him if he returns to Guyana.
He alleges that the Phantom Force will kill him in order to silence him because it is under
investigation by the United States Federal Bureau of Investigation (the “FBI”). He
believes that the FBI is investigating the Phantom Force because he read this in a
December 2002 newspaper in Guyana. He alleges that the Phantom Force would know of
his return to Guyana because deportees are well-publicized. At his hearing before the IJ,
Rodgers presented his mother, Sandra Rodgers (“Mrs. Rodgers”), as a witness. She
corroborated Rodgers’s story of the November 2002 beating, and testified that she
believed Rodgers would be killed if he returned to Guyana. However, she was unable to
corroborate Rodgers’s allegations that his cousins had been murdered.
The IJ denied Rodgers’s applications for asylum, withholding of removal, and
protection under the CAT on September 23, 2003, based on lack of objective evidence
demonstrating that Rodgers had a well founded fear of future persecution upon his return
to Guyana. The IJ concluded that Rodgers had not been persecuted because of
3
membership in a particular political or social group, or because of his race, religion, or
nationality. The IJ also found no evidence to support Rodgers’s claim that there was an
FBI investigation of the Phantom Force, the Phantom Force’s alleged motivation to kill
Rodgers. Moreover, the IJ held that the record did not establish that the police were
unable or unwilling to protect Rodgers.
Rodgers appealed to the BIA, raising for the first time the argument that he had
been persecuted as a member of a particular social group – namely as a witness to the
altercation between the Phantom Force and the police. He again argued that the police
are unwilling or unable to protect him because the Phantom Force controls the police.
The BIA affirmed the IJ’s decision without opinion on March 16, 2004.
II. Discussion
We review the IJ’s decision under the substantial evidence standard. See Gao v.
Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002). We conclude that substantial evidence
supports the IJ’s conclusion that Rodgers has failed to demonstrate that the Guyanese
government is unwilling or unable to protect him.
Where violence is “primarily wrought by fellow citizens” rather than “government
action or acquiescience,” an application for asylum will be denied. Lie v. Ashcroft,
396
F.3d 530, 537-38 (3d Cir. 2003). An application for asylum based on the action of private
citizens must therefore demonstrate that the government condones the conduct or takes no
action to stop it. See Abdille v. Ashcroft,
242 F.3d 477, 494 (3d Cir. 2001). Here, the
4
evidence presented simply does not compel Rodgers’s conclusion that the police worked
in tandem with the Phantom Force or that they were unwilling or unable to help Rodgers.
The IJ based her decision on articles in the record demonstrating that, although criminal
gangs are active in Guyana, the Guyanese government and police are working to control
them. Moreover, as the IJ noted, the police did not act indifferently in response to
Rodgers’s report of his November 2002 beating, but rather were unable to pursue it due to
lack of evidence. Therefore, we find that the IJ’s decision denying asylum is supported
by substantial evidence. For largely the same reasons, we find that substantial evidence
supports the IJ’s denial of withholding of removal and protection under the CAT.
Rodgers also argues that the BIA erred in affirming the IJ’s decision without
opinion because he had raised a new argument in his appeal that he was a member of a
particular social group. Because we conclude that substantial evidence supports the IJ’s
holding that Rodgers failed to show the police were unable or unwilling to protect him,
Rodgers’s argument that, as a witness to the shooting incident, he was a member of a
particular social group is immaterial. Even if the BIA were to find that Rodgers was a
member of a particular social group, substantial evidence supports the IJ’s finding that he
has not demonstrated a well-founded fear of persecution as a member of that group.
III. Conclusion
For all of the foregoing reasons, the IJ’s decision was based upon substantial
5
evidence. Therefore, we will deny the petition for review.
_________________________
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