Camara v. Holder , 413 F. App'x 371 ( 2011 )

10-238-ag
Camara v. Holder
BIA
Sichel, IJ
A095 869 931
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 10th day of March, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 ROBERT A. KATZMANN,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 MAMADOU NEGUE CAMARA,
14 Petitioner,
15
16 v. 10-238-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Ronald S. Salomon, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ada E. Bosque, Senior
28 Litigation Counsel; Jonathan
29 Robbins, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
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 Mamadou Negue Camara, a native and citizen
6 of Guinea, seeks review of a December 28, 2009, decision of
7 the BIA affirming the January 25, 2008, decision of
8 Immigration Judge (“IJ”) Helen J. Sichel, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Mamadou
11 Negue Camara, No. A095 869 931 (B.I.A. Jan. 25, 2008), aff’g
12 No. A095 869 931 (Immig. Ct. N.Y. City Sept. 12, 2006). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
18 Cir. 2008). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 As an initial matter, we decline to address Camara’s
22 argument that the IJ erred in making an adverse credibility
2
1 finding because, as the BIA stated, the IJ did not make any
2 such finding. Camara also argues that the agency erred in
3 ignoring background evidence regarding conditions in Guinea.
4 However, there is no indication that the agency ignored any
5 material evidence. See Xiao Ji Chen v. United States Dep’t
6 of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e
7 presume that an IJ has taken into account all of the
8 evidence before him, unless the record compellingly suggests
9 otherwise.”). Indeed, the IJ specifically stated that she
10 had reviewed the evidence of country conditions in
11 evaluating Camara’s claim.
12 We nevertheless conclude that the agency erred in its
13 analysis of Camara’s claim of past persecution. Camara
14 testified that he was arrested, and later abused, by the
15 Guinean military because he wore a shirt indicating support
16 for the Union for Progress and Renewal (“UPR”), a political
17 opposition party. The IJ stated, without explanation, that
18 Camara did not establish that the arrest occurred and, that
19 if it did occur, the arrest and mistreatment did not
20 constitute past persecution. The BIA further found that
21 Camara did not demonstrate that he was harmed because of
22 political activity. These findings cannot stand.
3
1 We have explained that an asylum applicant’s burden of
2 proof can be met where the applicant provides “consistent,
3 detailed, and credible testimony,” unless corroboration is
4 required by the agency. Diallo v. INS, 232 F.3d 279, 285
5 (2d Cir. 2000). We further elaborated that, before denying
6 a claim solely because of an applicant’s failure to provide
7 corroborating evidence, the agency must “explain
8 specifically, either in its decision or otherwise in the
9 record: (1) why it is reasonable under the BIA’s standards
10 to expect such corroboration; and (2) why [the applicant’s]
11 proffered explanations for the lack of such corroboration
12 are insufficient.” Id. at 290.
13 In this case, the agency did not make an adverse
14 credibility finding, and so we assume arguendo that Camara’s
15 detailed testimony about his arrest and detention was
16 credible. Id. at 288 (finding that whether an applicant is
17 credible “is an assessment that the IJ and then the BIA
18 should make in the first instance” and assuming credibility
19 for purposes of review). Further, the agency did not
20 specify why evidence corroborating Camara’s arrest and
21 detention was required under the circumstances present here.
22 Accordingly, assuming his testimony to be credible, Camara
4
1 established that he was arrested and beaten.
2 Moreover, if the operative events happened as Camara
3 described, the testimony compels the conclusion that Camara
4 was arrested and detained because of either political
5 opinion or imputed political opinion. See 8 U.S.C.
6 § 1252(b)(4)(B). While the BIA found that Camara did not
7 establish that he suffered past persecution on account of
8 political opinion, the finding was based on Camara’s lack of
9 knowledge about the UPR and his lack of involvement with the
10 group and Guinean politics while in the United States. This
11 finding supports the agency’s conclusion that Camara is not
12 a committed UPR activist who, if returned to Guinea, would
13 be involved in politics; it does not, however, address the
14 specific issue of whether Camara was arrested and beaten
15 because of a political opinion or an imputed political
16 opinion.
17 Camara testified that he and several friends wore UPR
18 t-shirts to signify their support for the party and because
19 Camara’s father had been arrested by the Guinean government
20 as a UPR activist. Camara stated that, after a fight
21 started by students who supported the party in power, the
22 military arrested and detained only those students wearing
5
1 UPR t-shirts. Camara also testified that the chief in the
2 location where he was detained advised him that, “if [he]
3 ever return[ed] to this kind of trouble about political
4 issues . . . they [would] lock [him] up for the rest of
5 [his] life or kill [him].” This testimony indicates that
6 Camara was arrested and beaten by the military because of
7 his support for the UPR, i.e., on account of a political
8 opinion. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
9 (2d Cir. 2005). Accordingly, remand is necessary for the
10 agency to consider whether Camara suffered past persecution
11 during this incident.
12 While the IJ stated that, even if Camara established
13 that he was arrested, the arrest did not constitute past
14 persecution, she did not provide any reasoning for that
15 conclusion. Persecution requires that the harm suffered be
16 sufficiently severe, rising above “mere harassment.”
17 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
18 Cir. 2005). The difference between harassment and
19 persecution is one of degree, which must be assessed with
20 regard to “the context in which the mistreatment occurs.”
21 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).
22 Accordingly, we have cautioned the agency to be “keenly
6
1 sensitive” to the fact that a “minor beating, or for that
2 matter, any physical degradation designed to cause pain,
3 humiliation, or other suffering, may rise to the level of
4 persecution if it occurred in the context of an arrest or
5 detention on the basis of a protected ground.” Id. at 226;
6 see also Baba v. Holder, 569 F.3d 79, 85 (2d Cir. 2009).
7 Here, Camara testified that he was detained for three
8 days, during which he was beaten with a stick and burnt with
9 cigarettes. Given the detention context, such violent
10 conduct may be said to exceed “the mere annoyance and
11 distress that characterize harassment,” and may rise to the
12 level of persecution. Ivanishvili, 433 F.3d at 342; see
13 also Beskovic, 467 F.3d at 226; Baba, 569 F.3d at 85.
14 Nevertheless, “[w]e have never held that a beating that
15 occurs within the context of an arrest or detention
16 constitutes persecution per se.” Jian Qiu Li v. Holder, No.
17 09-5258-ag, slip op. at 4 (2d Cir. Jan. 24, 2011).
18 Accordingly, assuming credibility, Camara’s testimony
19 may establish that he was persecuted on account of a
20 political opinion. Because an applicant who has established
21 past persecution receives a rebuttable presumption that he
22 has a well-founded fear of future persecution, see 8 C.F.R.
7
1 §§ 1208.13(b)(1), 1208.16(b)(1), we vacate the agency’s
2 opinion and remand for further consideration of Camara’s
3 claim of past persecution based on his own or an imputed
4 political opinion and for consideration of whether the
5 government can rebut a presumption of future persecution if
6 in fact the agency finds past persecution. See INS v.
7 Orlando Ventura, 537 U.S. 12, 16-17 (2002) (remanding for
8 consideration in the first instance of matters entrusted to
9 the agency by statute).
10 We also vacate the agency’s finding that Camara did not
11 establish his eligibility for CAT relief because the
12 agency’s analysis was premised in part on its conclusion
13 that Camara did not establish that he was arrested and
14 abused in Guinea. In evaluating his claim for CAT relief,
15 the agency should properly determine whether Camara
16 established that he suffered past torture in Guinea and, if
17 so, whether that mistreatment indicates that he faces a
18 likelihood of torture if he is removed. See 8 C.F.R.
19 § 1208.16 (c)(3)(i) (providing that the agency shall
20 consider “[e]vidence of past torture inflicted upon the
21 applicant” in evaluating claims for CAT relief).
22 For the foregoing reasons, the petition for review is
8
1 GRANTED, and the case REMANDED for further proceedings
2 consistent with this order. As we have completed our
3 review, any pending motion for a stay of removal in this
4 petition is DISMISSED as moot. Any pending request for oral
5 argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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