Imran v. Boente , 678 F. App'x 37 ( 2017 )

15-2230
Imran v. Boente
BIA
Straus, IJ
A201 290 632
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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of February, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
MOHAMED IMRAN,
Petitioner,
v. 15-2230
NAC
DANA J. BOENTE, ACTING UNITED
STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, Law
Office of Visuvanathan
Rudrakumaran, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John W.
Blakeley, Assistant Director;
Christina J. Martin, Trial Attorney,
* The Clerk of Court is respectfully requested to amend the caption
to conform to the above.
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.
Petitioner Mohamed Imran, a native and citizen of Sri
Lanka, seeks review of a June 15, 2015, decision of the BIA
affirming a January 29, 2014, decision of an Immigration Judge
(“IJ”) denying Imran’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Mohamed Imran, No. A201 290 632 (B.I.A. June
15, 2015), aff’g No. A201 290 632 (Immig. Ct. Hartford Jan. 29,
2014). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
We have reviewed both the IJ’s and the BIA’s opinions “for
the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
(2d Cir. 2006). The IJ concluded that Imran failed to establish
that his four arrests were motivated by Sri Lankan officials’
perception that he supported the Liberation Tigers of Tamil
Eelam (“LTTE”). For asylum and withholding of removal, an
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“applicant must establish that race, religion, nationality,
membership in a particular social group, or political opinion
was or will be at least one central reason for” the claimed
persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
“[A]n imputed political opinion, whether correctly or
incorrectly attributed, can constitute a ground of political
persecution within the meaning of the Immigration and
Nationality Act.” Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d
Cir. 2005) (internal alterations and quotations omitted). We
review the IJ’s nexus finding for substantial evidence,
upholding that finding unless we are compelled to conclude that
the alien was or will be persecuted on account of a protected
ground. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992);
Gjolaj v. Bureau of Citizenship and Immig. Servs., 468 F.3d 140,
143 (2d Cir. 2006). We review questions of law and applications
of law to undisputed fact de novo. See Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
At least as to Imran’s 2010 abduction, the IJ applied the
law incorrectly. Imran testified that in 2010, he was abducted
by Sri Lankan authorities who questioned him about his prior
arrests and his possible financial support for the LTTE, slapped
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him, and threatened to kill him. When Imran denied the
allegations, the officials forced him to pay a large bribe and
told Imran to leave Sri Lanka immediately, threatening to kill
him if he returned. The IJ concluded that the officials were
motivated by a desire to extort money, not their perception that
Imran supported the LTTE.
Although it is clear that the Sri Lankan officials extorted
money from Imran, that point is not dispositive. The IJ appears
to have concluded that criminal extortion was “the central
reason” for the 2010 abduction, Acharya v. Holder, 761 F.3d 289,
298 (2d Cir. 2014) (emphasis added), without considering
whether Imran’s suspected LTTE involvement was “at least one
central reason” for that abduction. 8 U.S.C.
§ 1158(b)(1)(B)(i); see Acharya, 761 F.3d at 299 (emphasis
added) (finding legal error where IJ, “by recasting his inquiry
as one into ‘the central’ as opposed to ‘at least one central’
reason for persecution,. . . vitiated the possibility of a mixed
motive claim”). “[T]he conclusion that a cause of persecution
is economic does not necessarily imply that there cannot exist
other causes of the persecution.” Osorio v. INS, 18 F.3d 1017,
1028 (2d Cir. 1994). Here, Imran provided “some evidence” that
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the officers were motivated by his imputed political opinion,
namely credible testimony that the officials questioned him
about his prior arrests and whether he provided financial
support for the LTTE. In Re S-P-, 21 I. & N. Dec. 486, 494 (BIA
1996) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 482-83
(1992)). This evidence strongly suggests that Imran’s
mistreatment was based on a protected ground.
Ultimately, the IJ “failed to consider the context in
which” Imran’s detention and extortion occurred. Uwais v. U.S.
Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007). In Uwais, the
petitioner was arrested and detained on suspicion that she
supported the LTTE, and officers tried to sexually assault her.
The BIA concluded that the assault was not on account of a
protected ground. We remanded, concluding that the
petitioner’s credible testimony “that she was arrested,
detained, interrogated, and severely questioned . . . based on
her suspected affiliation with the” LTTE was “by itself . . .
sufficient to establish that [her] subsequent maltreatment was,
at least in part, based on” an imputed political opinion. Id.
at 518. We further concluded that the BIA “should have been
sensitive to the obvious reality that if [the petitioner] had
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not been arrested and detained on account of her suspected
involvement with the Tamil Tigers, there would have been no
attempted sexual assault.” Id. (internal quotation marks
omitted).
Here, Imran provided credible testimony that he was
abducted and questioned about his suspected financial support
for the LTTE, after which officers extorted money and forced
him to leave Sri Lanka under pain of death. That testimony is
“by itself . . . sufficient to establish that [his]” arrest,
detention, death threats, and extortion “[were], at least in
part, based on” an imputed political opinion. Id. Moreover,
the IJ and BIA failed to consider “the obvious reality that if
[Imran] had not been arrested and detained on account of [his]
suspected involvement with the Tamil Tigers, there would have
been no” extortion or forced exile. Id. (internal quotation
marks omitted). Accordingly, the agency erred in its analysis
of whether Imran showed that the harm he suffered bore a nexus
to a protected ground.
Further, the agency should reconsider whether the harm rose
to the level of persecution in light of the context of the harm.
Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (“The
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BIA must, therefore, be keenly sensitive to the fact that a
‘minor beating’ or, for that matter, any physical degradation
designed to cause pain, humiliation, or other suffering, may
rise to the level of persecution if it occurred in the context
of an arrest or detention on the basis of a protected ground.”).
Moreover, in discussing the severity of the harm, the IJ failed
to mention that the government officials, while questioning
Imran, threatened to kill Imran while questioning him. The
agency is required to consider an applicant’s experiences
cumulatively, not in isolation. See Poradisova v. Gonzales,
420 F.3d 70, 79-80 (2d Cir. 2005). If found to have suffered
past persecution, as the evidence suggests, Imran will be
afforded a rebuttable presumption that he has a well-founded
fear of future persecution. 8 C.F.R. § 1208.13(b)(1).
Imran also challenges the denial of CAT relief. The CAT
prohibits the removal of any person to a country where it is
more likely than not that the individual “would be tortured.”
8 C.F.R. § 1208.16(c)(2). Here, the IJ acknowledged the State
Department report’s finding that Sri Lankan authorities
continue to detain and torture suspected LTTE sympathizers, but
concluded that, because Imran’s 2010 abduction was for purposes
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of extortion, he had failed to show that he was at risk of the
mistreatment described in the report. As noted above, Imran’s
credible testimony established that his suspected LTTE support
was at least one motivation for the mistreatment he received,
including threats that he would be killed for returning to Sri
Lanka.
Moreover, the IJ did not take into account the full scope
of Imran’s past harm. Cf. 8 C.F.R. § 1208.16(c)(3)(i). The
IJ stated that “the police officers who escorted [Imran] to the
airport in 2010 told him not to return to the country. But,
there is insufficient evidence that, upon his return to Sri
Lanka, these same officers or other authorities will subject
him to torture.” The officers did not merely forbid Imran from
returning to the country — they threatened to kill him if they
found him again. And the IJ noted that the country conditions
evidence shows that Sri Lankan authorities continue to detain
and torture suspected LTTE sympathizers.
Given Imran’s testimony and the country conditions
evidence, the IJ’s decision is not supported by substantial
evidence in the record. On remand, the agency should address
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whether Imran has established that it is more likely than not
that he will be tortured. 8 C.F.R. § 1208.16(c)(2).
Finally, Imran also argues that the IJ ignored affidavits
from his family and that the IJ was biased in favor of the
Government. These arguments are meritless. The IJ explicitly
stated that he considered the affidavits. Imran’s allegation
of bias is based on the IJ’s solicitation of the Government’s
opinion as to whether Imran met his burden of proof. However,
the IJ also asked Imran’s attorney about legal issues in the
case during the same discussion. Accordingly, there was no
bias.
For the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED 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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