Aung Soe Lwin v. Holder , 361 F. App'x 261 ( 2010 )

09-0441-ag
Lwin v. Holder
BIA
Lamb, IJ
A099 423 142
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of January, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 ________________________________
12
13 AUNG SOE LWIN,
14 Petitioner,
15
16 v. 09-0441-ag
17 NAC
18
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 __________________________________
23
24 FOR PETITIONER: Sandy Khine, New York, New York.
25
26 F O R RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Michelle
28 Gorden Latour, Assistant Director;
29 Tracie N. Jones, Trial Attorney,
30 Office of Immigration Litigation,
31 U.S. Department of Justice,
32 Washington, D.C.
33
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is GRANTED.
5 Petitioner Aung Soe Lwin, a native and citizen of
6 Burma, seeks review of an January 8, 2009 order of the BIA
7 affirming the June 28, 2006 decision of Immigration Judge
8 Elizabeth A. Lamb, denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Aung Soe Lwin, No. A099 423
11 142 (B.I.A. Jan. 8, 2009), aff’g No. A099 423 142 (Immig.
12 Ct. N.Y. City June 28, 2006). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We review the agency’s factual findings under the
16 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
17 see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
18 2008). Questions of law and the application of law to
19 undisputed fact are reviewed de novo. Salimatou Bah v.
20 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
21 This Court has concluded that a “minor beating, or for
22 that matter, any physical degradation designed to cause
23 pain, humiliation, or other suffering, may rise to the level
2
1 of persecution if it occurred in the context of an arrest or
2 detention on the basis of a protected ground.” Gjolaj v.
3 BCIS, 468 F.3d 140, 142 (2d Cir. 2006) (internal quotation
4 marks omitted). Lwin testified that he was arrested once in
5 1988 when, as a student, he distributed anti-government
6 pamphlets. According to Lwin, he was interrogated and
7 beaten throughout the night and released the following
8 morning. Although the BIA recognized that Lwin was
9 detained, “interrogated, slapped, kicked at, and hit with a
10 rubber stick,” it concluded that he “failed to establish
11 past harm rising to the level of persecution.” Given that
12 the BIA assumed Lwin’s physical mistreatment was on account
13 of a protected ground and occurred in detention, the basis
14 of its conclusion that it did not constitute past
15 persecution is unclear.
16 The agency’s erroneous analysis concerning Lwin’s 1988
17 arrest and detention would likely be an insufficient basis
18 for remand were it to have been the only error in its
19 decision. Indeed, the arrest occurred over 20 years ago,
20 and, following that incident, Lwin left and returned to
21 Burma on multiple occasions. As we have noted,
22 “administrative law cases from both the Supreme Court and
23 our court strongly suggest that we should disregard errors”
3
1 in the asylum context when no change in the outcome would
2 result on remand. Cao He Lin v. U.S. Dep’t of Justice, 428
3 F.3d 391, 401 (2d Cir. 2005).
4 The agency’s decision, however, reflects other errors.
5 To be eligible for asylum, “[t]he applicant must establish
6 that [a protected ground] was or will be at least one
7 central reason for” the claimed persecution. 8 U.S.C. §
8 1158(b)(1)(B)(i). Although the agency found that Lwin was a
9 victim of simple extortion, Lwin argues that his political
10 opinion motivated the authorities to demand money from him.
11 In addition to his arrest in 1988, he testified that, in
12 1993, while working abroad, he sent money to Burma to secure
13 the release of his brother-in-law, a pro-democracy activist.
14 In 1998, Lwin distributed pamphlets with his brother-in-law
15 and made donations to pro-democracy students who had become
16 refugees. In 2000, Lwin helped his brother-in-law flee
17 Burma, and he testified that military intelligence officials
18 mentioned Lwin’s brother-in-law when demanding money and
19 told Lwin that he was “guilty of anti-government
20 activities.” Neither the BIA nor the IJ appears to have
21 considered this testimony. Instead the IJ stated that Lwin
22 “has not taken part in any political activities in Burma.”
23 For its part, the BIA stated that Lwin has “had only a very
4
1 brief and peripheral involvement with the pro-democracy
2 movement.”
3 As the BIA has recognized, persecutors may have
4 multiple motives for their acts, only some of which are
5 related to a protected ground. See In re S-P-, 21 I. & N.
6 Dec. 486, 489 (BIA 1996). In such cases, “an applicant does
7 not bear the unreasonable burden of establishing the exact
8 motivation of a ‘persecutor’ where different reasons for
9 action are possible.” Id. at 489-90 (BIA 1996) (quoting
10 Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988)).
11 This Court has similarly held that “[t]he plain meaning of
12 the phrase ‘persecution on account of the victim’s political
13 opinion,’ does not mean persecution solely on account of the
14 victim’s political opinion.” Osorio v. INS, 18 F.3d 1017,
15 1028 (2d Cir. 1994). The IJ may have been correct that the
16 police singled out Lwin because they believed he had money.
17 However, this does not preclude the possibility that they
18 were also motivated by their perceptions of Lwin’s political
19 opinion. We express no opinion as to whether this was the
20 case. Rather, because it is not apparent to us that the
21 agency gave full consideration to the record, we remand.
22 See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.
5
1 2005).
2 However, Lwin has waived any challenge he might have
3 raised to the agency’s denial of his CAT claim. See Yueqing
4 Zhang v. Gonzales, 426 F.3d 540, 541 n.5, 545 n.7 (2d Cir.
5 2005).
6 For the foregoing reasons, the petition for review is
7 GRANTED and the case is remanded to the BIA for further
8 proceedings consistent with this order. Having completed
9 our review, any stay of removal that the Court previously
10 granted in this petition is VACATED, and any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
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