Sulaiman v. Holder , 371 F. App'x 224 ( 2010 )

09-2172-ag
Sulaiman v. Holder
BIA
A095 462 090
A095 462 091
A095 462 092
A095 462 093
A095 462 094
A095 462 095
A095 462 096
A095 462 097
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of April, two thousand ten.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_________________________________________
ZAID SULAIMAN, INTESAR ALWI, KHAZANA
SULAIMAN, YOSRA SULAIMAN, ABDULLA SULAIMAN,
MOHAMED SULAIMAN, SULAIMAN SULAIMAN, SAMAH
SULAIMAN,
Petitioners,
v. 09-2172-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONERS: Genet Getachew, Brooklyn, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; John B. Holt,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is GRANTED.
Petitioners, citizens of Yemen, seek review of a May 4,
2009, order of the BIA affirming the June 10, 2008, decision
of Immigration Judge (“IJ”) Elizabeth A. Lamb, denying their
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zaid
Sulaiman, et al., Nos. A095 462 090-097 (B.I.A. May 4,
2009), aff’g Nos. A095 462 090-097 (Immig. Ct. N.Y. City
June 10, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we consider both
the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008)(internal quotation marks omitted). The applicable
standards of review are well-established. See Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Shu Wen Sun v.
BIA, 510 F.3d 377, 379 (2d Cir. 2007).
Because the BIA assumed Sulaiman * to be credible for
purposes of its analysis, we will do the same. See Yan Chen
v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005).
*
We refer exclusively to Zaid Sulaiman (“Sulaiman”)
throughout this order because he was the lead applicant for
asylum during his family’s removal proceedings. The
remaining Petitioners, his wife and children, were
derivative applicants.
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Proceeding under this assumption, we find error in the
agency’s analysis.
In his asylum application and during his merits
hearing, Sulaiman claimed he was elected to the Yemeni
Parliament from 1993 to 1997 as a representative from
southern Yemen and during the 1994 uprising of southern
Yemen, his political rivals convinced the President that he
was a secessionist. He stated that in 1997, although he had
hoped to be an Ambassador, the President appointed him to
the lower position of Charge D’Affairs in Indonesia, which
he took as a rebuke for his political stance in 1994.
According to his application, in 1999 Sulaiman was called
back to Yemen to answer charges that he encouraged the
Yemeni community in Indonesia to oppose the Yemeni regime,
but the charges were dropped for lack of proof. Sulaiman
stated that in September 1999 the Foreign Ministry
transferred him laterally to the Yemeni Embassy in the
Netherlands. Then, in June 2001, a year before the end of
his assignment, ordered him to return to Yemen and suspended
him from his position due to ongoing rumors that he was a
secessionist. During this time, Sulaiman continued to draw
a salary. He claimed that after his return to Yemen, two
attempts were made on his life and that he believed the
government was behind both incidents although he could not
identify the assailants. He stated that following these
incidents, his “friends in high places in the regime”
advised him to leave the country to ensure his safety.
The BIA concluded that Sulaiman’s belief that the
government targeted him on account of a political opinion
imputed to him was impermissibly “speculative,” and that he
“failed to show a nexus between the incidents where his car
and house were shot at by unknown persons and any protected
ground.” This analysis ignores material record evidence,
and, accordingly, it is erroneous. See Tian-Yong Chen v.
INS, 359 F.3d 121, 128 (2d Cir. 2004). Sulaiman testified
that prior to the attempts on his life in September and
November of 2001, he was warned by the Deputy President to
be careful because the President was “not happy” with him
and that the President had accused him of being a
secessionist. Sulaiman also submitted into evidence a
bulletin dated January 2002, sent to Aden Airport Security,
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stating that “[t]he traitor secessionist Zaid Ahmed Sulaiman
is to be placed among the wanted list and to be delivered to
the political security upon his arrival.” In finding that
Sulaiman failed to show a nexus to a protected ground, the
agency made no reference to this evidence. While the agency
need not “parse or refute on the record” each piece of
evidence an applicant submits, see Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir. 2006), it
is required to indicate that it has considered all of the
material evidence supporting the claim, Poradisova v.
Gonzales, 420 F.3d 70, 77 (2d Cir. 2005). Because the
agency did not indicate that it considered the material
evidence Sulaiman submitted and because it is not clear that
the agency would have reached the same conclusion had it
done so, remand is necessary. See Cao He Lin v. U.S. Dep’t
of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Poradisova,
420 F.3d at 77.
We note that the agency’s determination that there was
no nexus to a protected ground finding also failed to
consider the shooting incidents in the broader context of
Sulaiman’s testimony. Instead it focused first on
Sulaiman’s demotion, disposing of it separately as not
amounting to persecution, and then turned to the shootings
and considered them discretely. See Manzur v. U.S. Dep’t of
Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007); see also
Poradisova, 420 F.3d at 79-80. While the BIA’s
determination that Sulaiman’s demotion itself did not amount
to persecution was reasonable, see Guan Shan Liao v. U.S.
Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002), the BIA
erred in failing to consider how Sulaiman’s political
history and demotion informed the question of whether the
shooting incidents were on account of his imputed political
opinion. See Manzur, 494 F.3d at 290.
Because these errors concern the core of Sulaiman’s
claim of past persecution and fear of future persecution, we
cannot find that remand would be futile. Xiao Kui Lin v.
Mukasey, 553 F.3d 217, 224 (2d Cir. 2009); see also Li Hua
Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 111 (2d Cir.
2006). On remand the agency is directed to reevaluate
whether Sulaiman established his eligibility for asylum,
withholding of removal, and CAT relief, taking into
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consideration: (1) his testimony regarding the warning he
received from the Deputy President; (2) the airport
bulletin; and (3) the broader context of his political
career and demotion. See Cao He Lin, 428 F.3d at 406.
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED to the BIA for further
proceedings consistent with this order. As we have
completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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