Abdallah Issakh v. Atty Gen USA ( 2011 )

IMG-041 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2557
___________
ABDALLAH ISSAKH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-169-731)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 16, 2011
Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges
(Opinion filed May 10, 2011 )
___________
OPINION
___________
PER CURIAM
Petitioner Abdallah Issakh, a native and citizen of Chad, petitions for review of a
final order of removal from the Board of Immigration Appeals (“BIA”), dismissing his
1
appeal from the denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons that follow,
we will grant the petition for review, vacate the final order of removal, and remand to the
BIA for further proceedings.
I.
Issakh first entered the United States on July 23, 2002, on a business visa. On
February 10, 2003, he filed an application for asylum claiming that the Chadian
government persecuted him on the basis of his race and membership in a particular social
group, the Guran tribe. That application was denied.1 Issakh returned to Chad in 2007.
He re-entered the United States on July 10, 2008, and was immediately placed in removal
proceedings. Issakh conceded removability and applied for asylum, withholding of
removal, and protection under CAT on the basis that while in Chad he was persecuted on
account of an imputed political opinion or his ethnicity.
At his merits hearing, Issakh testified that he had returned to Chad in 2007
because he had lost his authorization to work in the United States, and he had received
news that his family was in shambles and his home village had been destroyed as a result
of continuing civil strife in the country. He returned to Chad via Sudan, which he entered
1
Issakh‟s appeal to the BIA was dismissed on March 10, 2005. He subsequently
filed a motion to reconsider that was denied on June 27, 2005. The BIA denied his
motion to reopen on November 18, 2005. The United States Court of Appeals for
the Seventh Circuit denied his petition for review challenging the denial of his
motion to reopen on January 11, 2007. See Issakh v. Gonzales, No. 05-4636, 2007
2
with a fraudulent Sudanese passport. After spending approximately three weeks in a
border refugee camp in Sudan, Issakh crossed into Chad to exchange his United States
currency. While in the exchange shop, he was approached by a government security
officer who asked Issakh for his identity card. Issakh told the officer that he had come
from Libya. Issakh testified that the agent became suspicious of his lack of official
documents and made a phone call. Within minutes, additional officers arrived and
arrested Issakh. They detained him in a local jail, beat him, and demanded to know who
he was and who he was related to. AR 168. Issakh gave them the address of a man that
he had stayed with at the refugee camp, Mohamed, and Mohamed was found and brought
in the next morning. Issakh testified that Mohamed told them everything he knew about
Issakh‟s situation, including that he had just returned from the United States. AR 169.
The next day, Issakh was transported to another jail that was several hours away by car.
He was detained there for ninety days, during which time he was accused of being a rebel
against the governing regime, and was severely beaten. Issakh testified that the guards
told him they knew he was a rebel because of the fact that he had money, and because he
lied about his identity. The officers accused his whole family of being rebels and
demanded that he give them the name of a relative in Chad. AR 170.
Issakh maintained his story that he was from Libya, but disclosed the name of an
acquaintance with whom he had commercial transactions in the 1990s. AR 171. The
U.S. App. LEXIS 1025, at *13 (7th Cir. Jan. 11, 2007).
3
police found the man and brought him to the prison. The man confirmed that Issakh was
a business acquaintance whom he had known for a long time. After this, Issakh testified,
his situation grew much worse. AR 172. He was taken from his cell to a room and
interrogated by an alleged “attorney” who asked him again if he was a rebel and exhorted
him to “tell the truth.” AR 173. When Issakh maintained his story about being from
Libya, he was struck on the back with a rifle butt, causing him to hit his head on the table.
He was also tied up by the hands and feet, hung upside down from the ceiling, and beaten
severely. The officers hit him with fists and boots, lashed him with a whip, and
threatened that they would kill him unless he told the truth. AR 174. When Issakh
became totally exhausted from the beating, they put him back in his cell. This was
repeated again the next day, and the officers struck Issakh on the bottoms of his feet until
his feet were swollen and raw. AR 174. Issakh testified that he was completely
incapacitated after this beating, and could not walk or even stand. AR 175. He was only
released when a rebel force took over the city and freed all prisoners in or around
February 2008. AR 176. Issakh remained in Chad for the next five months, moving
from house to house to avoid detection. AR 176-77. He was able to obtain a government
issued national identity card. He then purchased a fraudulent passport to leave Chad and
returned to the United States.
At the merits hearing, the IJ considered Issakh‟s testimony, as well as the State
Department Reports relevant to Chad. The IJ did not make an adverse credibility finding
4
against Issakh and acknowledged that his testimony appeared to be plausible in light of
the background material detailing Chad‟s ongoing problems with civil strife and rebel
groups, and its poor human rights record. AR 111. However, the IJ ultimately concluded
that Issakh failed to meet his burden of demonstrating eligibility for asylum. With
respect to the arrest and detention, the IJ found that Issakh was targeted as a consequence
of his intentional misrepresentation of his identity, and not on account of a protected
ground. In support of the conclusion that the authorities did not appear interested in
harming Issakh on account of his ethnicity or actual or imputed political opinion, the IJ
cited the fact that Issakh remained in Chad for five months following his detention
unharmed, and was issued a national identification card with his true identity by a
government office. The IJ further held that this was not a mixed motive case. In
addition, the IJ faulted Issakh for failing to submit any medical documentation to
evidence that he was mistreated as he claimed.
The BIA dismissed Issakh‟s appeal for the reasons stated by the IJ. In doing so,
the BIA noted that the IJ did not find that Issakh was not credible, rather than he had
failed to satisfy his burden of proof. The BIA also noted Issakh‟s lack of corroborative
evidence, and the fact that Issakh failed to seek medical attention in either Chad or in the
United States. 2
2
The BIA also determined that the IJ had not erred in refusing to allow Issakh to
present evidence about the persecution he suffered prior to 2006 that formed the
basis of his first asylum application. Issakh has not raised that issue in this appeal.
5
The instant petition for review followed.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review final orders of
removal issued by the BIA. Hashmi v. Att‟y Gen., 531 F.3d 256, 259 (3d Cir. 2008).
Where, as here, the Board adopts and affirms the decision of the IJ, as well as provides its
own reasoning for its decision, “[we] review[] both the decisions of the IJ and the BIA.”
Id. We review the BIA‟s legal conclusions de novo, subject to established principles of
deference. See Kaplun v. Att‟y Gen., 602 F.3d 260, 265 (3d Cir. 2010). “We review an
IJ‟s factual findings, including his or her determination of whether an alien was subject to
persecution or has a well-founded fear of future persecution, under the substantial
evidence standard.” Toure v. Att‟y Gen., 443 F.3d 310, 316 (3d Cir. 2006); see also
Wong v. Att‟y Gen., 539 F.3d 225, 230 (3d Cir. 2008). Although substantial evidence
review is deferential, such that we may reverse only if a reasonable adjudicator would be
compelled to conclude to the contrary, see 8 U.S.C. § 1252(b)(4)(B), that deference is
conditioned on support in the record. An IJ must support her factual determinations with
“specific, cogent” reasons such that her conclusions “flow in a reasoned way from the
evidence of record and are [not] arbitrary and conjectural in nature.” Toure, 443 F.3d at
316 (quoting Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc)). Deference is
not due where findings and conclusions are based on inferences or presumptions that are
not supported by “reasonable, substantial and probative evidence on the record
6
considered as a whole.” Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 20003); see
also Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
III.
In order to be eligible for asylum, Issakh must demonstrate that he is unable or
unwilling to return to Chad “because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158. Although not entirely
clear from the IJ‟s oral opinion and the BIA‟s order, we read these decisions as finding
that Issakh failed to demonstrate past persecution. AR 3, 114. To the extent they made
such findings, we are compelled to reverse. We have defined persecution as “extreme
conduct” that includes “threats to life, confinement, torture, and economic restrictions so
severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240
& n.10 (3d Cir. 1993). In determining whether harm rises to the level of persecution, the
harm must be more than “mere harassment.” See Ivanishvili v. U.S. Dep‟t of Justice, 433
F.3d 332, 341 (2d Cir. 2006). However, persecution need not rise to the level of torture
to be a ground for asylum. Kibinda v. Att‟y Gen., 477 F.3d 113, 119 (3d Cir. 2007).
Issakh was held for ninety days—a substantial period of time—and there is no
indication that he would have been released at all if it had not been for the rebel takeover
of the prison. Over that time, he was beaten on multiple occasions, once to the point
where he could no longer stand and could only crawl. He was also bound and strung
7
upside down, flogged with a whip, and his life was threatened. He bears permanent scars
from the ordeal. This treatment far exceeds mere harassment and is sufficiently severe to
rise to the level of persecution. See Toure, 443 F.3d at 318-19; see also Baba v. Holder,
569 F.3d 79, 85 (2d Cir. 2009) (finding persecution where individual was imprisoned for
three days, then a week, beaten daily and threatened with death if he did not cease his
political activity).
Moreover, we believe the IJ‟s findings and conclusions regarding corroboration
are not supported by substantial evidence in the record. We note at the outset that the IJ
did not make a credibility finding in this case, meaning that Issakh‟s testimony is entitled
to a “rebuttable presumption of credibility on appeal.” 8 U.S.C. § 1158(b)(1)(B)(iii);
Camara v. Att‟y Gen., 580 F.3d 196, 201 (3d Cir. 2009). An alien‟s testimony by itself,
if credible, can satisfy the burden of establishing a claim for relief by objective evidence.
See 8 C.F.R. § 1208.13(a); Kibinda, F.3d 113 at 120 n.5. Because Issakh does bear the
burden of proof, however, he is required to submit corroborating evidence “when it is
reasonable to expect corroborating evidence and there is no satisfactory explanation for
its absence.” Sandie v. Att‟y Gen., 562 F.3d 246, 252 (3d. Cir. 2009). “„[N]o court shall
reverse a determination made by a trier of fact with respect to availability of
corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is unavailable.‟” Id. (quoting 8
U.S.C. § 1252(b)(4)). As the IJ noted, however, unreasonable demands are not placed on
8
an asylum applicant to present evidence to corroborate particular experiences. See In re
S-M-J, 21 I. & N. Dec. 722, 725 (BIA 1997).
In this case Issakh testified that his beatings rendered him temporarily unable to
stand or walk, that his feet were swollen and some of the skin was stripped, and that he
still had a scar on his head and lash marks on his body. Additionally, he submitted a
letter from the acquaintance who identified him, stating that “I noticed signs of torture on
him and he appeared to be very week [sic].” AR 267. Issakh‟s attempts to display the
scarring on his feet to the IJ during his merits hearing were harshly rebuffed. AR 175.
Thus, given that the IJ did not find that Issakh was not credible, the IJ must have rested
her conclusion that Issakh failed to provide persuasive evidence of his mistreatment on
the fact that Issakh did not seek medical attention. But that is inconsistent with our
decision in Issiaka v. Attorney General, where we rejected an IJ‟s adverse credibility
finding that was in part based on the respondent‟s failure to testify that he had received
medical care. 569 F.3d 135, 140-41 (3d Cir. 2009) (stating that “even „if best practices‟
would require that Issiaka receive stitches, there is nothing here to suggest that he had
access to that kind of medical care. He was, after all, in rural West Africa, and it appears
that the IJ never even considered that circumstance or context before drawing a negative
inference from Issiaka‟s failure to say that he received stitches.”). As in Issiaka, the IJ
and BIA do not appear to have considered Issakh‟s particular circumstances or context
before drawing a negative inference from his failure to seek medical attention. Issakh
9
testified that he was essentially living on the lam for the few months following his release
until he could secure safe passage to the United Sates, and the State Department Country
Report for Chad paints a picture of a country disrupted by civil strife, where it appears
unlikely that medical intervention is readily available. Indeed there was no evidence
submitted that Issakh was privy to medical care that he did not avail himself of. Nor was
there any evidence submitted that would tend to suggest that Issakh was not mistreated in
prison as he attests. Accordingly, this is a situation in which a reasonable trier of fact
would conclude that corroborating medical documentation is unavailable.
We next consider Issakh‟s claim that the IJ incorrectly determined that the record
did not establish that he was persecuted on account of a protected ground, specifically,
because of his political opinion or an opinion imputed to him based on his membership in
the Guran tribe. A “key task for any asylum applicant is to show a sufficient „nexus‟
between persecution and one of the listed protected grounds.” Ndayshimiye v. Att‟y
Gen., 557 F.3d 124, 129 (3d Cir. 2009). An asylum applicant, however, need not
demonstrate that the protected ground was the exclusive motivation behind the alleged
persecution. He may prevail if he can provide some evidence that a protected
characteristic was or will be at least “one central reason” for the alleged persecution. Id.;
see also INA § 208(b)(1)(B)(i); 8 U.S.C. § 1158(b)(1)(B)(i). A persecutor‟s motives may
be mixed if part of the motivation is covered under the statute. See Chang v. INS, 119
F.3d 1055, 1065 (3d Cir. 1997). The statute does not require that the motive alleging a
10
protected basis occupy a higher rank than any other unprotected motive. Ndayshimiye,
557 F.3d at 130. However, “asylum may not be granted if a protected ground is only an
incidental, tangential, or superficial reason for persecution of an asylum applicant.” Id.In this case, the IJ found that Issakh was persecuted solely because he made
misrepresentations to the authorities, and summarily rejected the claim that this was a
mixed-motive case. 3 We find that conclusion to be unsupported by the record. Although
the record does support the IJ‟s finding that Issakh was initially detained because he
lacked identity documents, there is substantial evidence that over the course of his
detention, the officials learned information about Issakh‟s identity that gave them reason
to believe he was a ethnic Guran and/or a rebel, or to impute that status or political
opinion to him. The record reflects both that the police repeatedly accused Issakh of
being a rebel, and that Issakh‟s treatment at the hands of the police significantly
worsened once they verified his true identity. Specifically, it was only after Issakh‟s
former acquaintance told the police that he “had known [Issakh] for a long period of time
and that was a long, long, time ago,” AR 172, that Issakh received his most severe
beatings. This testimony is inconsistent with the IJ‟s conclusion that, once the authorities
were aware of Issakh‟s identity, they did not appear interested in harming him on account
of his ethnicity or actual or imputed political opinion. AR 16, 78.
3
We also note that although the IJ‟s finding that there was no mixed motive was
challenged by Issakh on direct appeal, the BIA failed to address that argument in
its opinion.
11
In addition, the IJ failed to consider Issakh‟s testimony that two different
individuals disclosed information to the authorities regarding Issakh‟s true identity.
Indeed, the IJ appeared to misunderstand Issakh‟s testimony on this issue. The IJ recalled
that Issakh stated that the officials insisted that he “disclose the truth and that the
respondent was a rebel from Libya,” AR 67, when in fact Issakh‟s testimony is clear that
the officers continued to harass him because they either knew or suspected that he was
not Libyan at all. AR 168, 170-173. The fact that Issakh was able to obtain an identity
card and remain unharmed in Chad for five months while in hiding is not substantial
evidence that Issakh‟s ordeal was not motivated, at least in part, on account of a protected
ground. Although it may have been reasonable to conclude from the record that Issakh‟s
initial detention stemmed from his lack of identity documents, the IJ did not meaningfully
consider Issakh‟s argument that, after verifying Issakh‟s identity, the officers were
operating with mixed motives. Given the evidence in the record and the lack of analysis
of this claim, we are compelled to vacate the IJ‟s summary conclusion that there was no
mixed motive in this case.4
IV.
4
We do not address Issakh‟s claim under the CAT because he did not
administratively exhaust this claim on appeal to the BIA, nor does he raise it in his
petition for review.
12
Accordingly, we will grant the petition for review. The final order of removal will
be vacated and this matter will be remanded to the BIA for further proceedings consistent
with this opinion.
13