Sealed v. Sealed , 829 F.3d 379 ( 2016 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60697 FILED
July 15, 2016
SEALED PETITIONER, Lyle W. Cayce
Clerk
Petitioner
v.
SEALED RESPONDENT,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Petitioner, a native and citizen of Ethiopia, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”), upholding the
Immigration Judge’s (“IJ”) denial of his application for asylum and withholding
of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1158 and 1231(b)(3). Petitioner arrived in the United States without a valid
entry document. He then applied for asylum and withholding of removal under
the INA, and protection under the Convention Against Torture (“CAT”). In the
subsequent applications and hearings, Petitioner testified that he had been
tortured by the Ethiopian government because it suspected he and his family
members supported a terrorist organization called the Ogaden National
No. 14-60697
Liberation Front (“ONLF”). The IJ denied relief because Petitioner did not
show that he was persecuted on account of a protected ground as required by
§§ 1158 and 1231(b)(3). However, the IJ withheld his removal under CAT.
Because the IJ and the BIA did not consider several factors essential to
determining whether one central reason for the Ethiopian government’s
maltreatment of Petitioner was persecution on account of a protected ground,
we remand for that consideration.
I.
A.
The country of Ethiopia is divided into several regional states based on
ethnic and linguistic distinctions. The Somali Regional State lies in the
eastern part of the country and is inhabited largely by ethnic Somalis. There
is a large clan of ethnic Somalis called the Ogaden who live mainly in five of
the Somali Regional State’s nine zones, including Fik. The ONLF is an armed,
violent, and fragmented separatist group that operates in the Somali Regional
State and is primarily made up of members of the Ogaden clan. The ONLF
interacts regularly with civilians, obtaining food and water from a network of
civilian supporters in the towns and villages of the Ogaden area. In 2007, the
ONLF attacked an oil installation, which resulted in the capture and death of
seventy civilians and Chinese oil workers. In response to that attack, the
Ethiopian government created the Liyu police force to carry out a
counterinsurgency campaign in the Ogaden area. The ONLF is one of five
groups designated as terrorist organizations by the Ethiopian government in
June 2011.
Petitioner testified to the following. Petitioner’s father owned a grocery
store in Fik, a city in which approximately 97% of the population belongs to
the Ogaden clan. Petitioner and his family are members of the Ogaden clan.
In January 2012, five armed members of the Liyu police force arrived at the
2
No. 14-60697
grocery store where Petitioner and his father were present. The Liyu officers
accused Petitioner’s father of using proceeds from his store to support the
ONLF. Petitioner’s father denied being an ONLF supporter, but the officers
did not believe him. The officers punched, slapped, and kicked Petitioner’s
father, and hit him with the butts of their rifles. They then arrested him,
warning Petitioner to close the store and leave. Petitioner’s father was
detained at a military camp in Fik for approximately six months without being
criminally charged. At the end of the six months, he was killed. Officials at
the military camp stated that they shot him during an escape attempt. When
Petitioner asked why his father was being detained, he was only told that
government officials had a “strong suspicion” that he was an ONLF supporter.
In August 2012, the Liyu police approached Petitioner’s maternal uncle,
Abdi Yusuf Ali, while he was teaching school and asked Ali to join them in
fighting the ONLF. Ali refused, stating that he was a teacher and had no
military training. Ali was then arrested, and a week later, he was killed while
in detention. When Ali’s father, Petitioner’s grandfather, went to the camp to
find out why Ali had been killed, Petitioner’s grandfather was accused of being
an ONLF supporter and was arrested. Petitioner’s grandfather was still in
custody at the police station in Fik at the time of Petitioner’s asylum hearing
in February 2014.
A year after his father’s killing, Petitioner obtained a permit from a city
administrator allowing him to reopen his father’s grocery store. He worked at
the grocery store for approximately one month before three armed Liyu
policemen arrived in December 2012 and asked if Petitioner was continuing
his father’s work of supporting the ONLF. Petitioner responded that he did
not support the ONLF and wished only to support his family. In response, the
officers beat him, arrested him, and brought him to the same military camp
where his father and uncle had been taken.
3
No. 14-60697
Petitioner was detained at the military camp for two months and ten
days. During that time, two members of the Liyu police force interrogated and
physically abused Petitioner approximately six times. The officers punched
and slapped Petitioner, and kicked him with their boots. They also hit him
with the butts of their rifles, leaving a scar on his forehead. They slashed his
neck with a knife, burned toenails on each of his feet with a cigarette lighter,
and pulled two toenails from his feet. While the officers were physically
abusing Petitioner, they insisted he confess to being an ONLF supporter and
give them names of other ONLF supporters in Fik. Petitioner was told that he
would remain in custody until he agreed to cooperate with the Liyu police and
act as a spy for them. Petitioner agreed and was released. However, he fled
the region the next day. Petitioner is not a member of the ONLF, and he does
not know any members of the ONLF.
B.
Petitioner arrived in the United States in August 2013 without a valid
entry document. Upon arrival, he applied for admission in Brownsville, Texas,
and was issued a notice to appear for a charge of removability as an immigrant
without a valid entry document at the time of his application for admission
under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Following his appearance, the IJ ordered
he be removed, and Petitioner subsequently filed an application for asylum and
withholding of removal under the INA and withholding of removal under CAT.
The IJ then conducted several hearings to determine Petitioner’s eligibility for
relief. The IJ issued an oral decision, denying Petitioner asylum and
withholding of removal under the INA, but granting him relief under CAT.
The IJ found that Petitioner had testified credibly and that he had
presented corroborating evidence. He acknowledged Petitioner’s contention
that the Ethiopian government’s actions against him were based (1) on a
political opinion that the government imputed to him and (2) on his
4
No. 14-60697
membership in the particular social groups of the Ogaden tribe and of his
family. The IJ assumed arguendo that the two claimed groups were particular
social groups within the meaning of the INA and that Petitioner was a member
of both groups. The IJ did not address whether Petitioner’s treatment rose to
the level of persecution and instead focused on the reason for the government’s
interest in Petitioner. He found that the sole reason the Ethiopian government
took any action against Petitioner was because it was “attempting to suppress
the violent activities of the ONLF and it believed, even if wrongly, that
[Petitioner] was a financial supporter of the ONLF like his father was” and
that Petitioner “knew supporters of the ONLF in Fik who[m] he could reveal
to the government.” The IJ cited several cases from this circuit and the BIA
stating that investigation of terrorism is not harm perpetrated on account of a
protected ground for asylum purposes. The IJ then denied Petitioner’s
applications for asylum and withholding of removal under the INA.
The IJ also considered Petitioner’s claim for protection under CAT. He
noted that Petitioner had “suffered serious physical abuse by Ethiopian
government agents,” that he had been released from prison only because he
agreed to work as a government spy, and that he had fled Ethiopia as soon as
he was released from prison. The IJ found that it was likely that the Ethiopian
government would still be interested in Petitioner based on its belief that he is
an ONLF supporter and that it was more likely than not that Petitioner would
be tortured by the Ethiopian government no matter where in that country he
tried to settle. The IJ thus ordered that Petitioner’s removal to Ethiopia be
withheld pursuant to CAT. Petitioner timely appealed the denial of his
application for asylum and withholding of removal under the INA.
On appeal, the BIA affirmed the IJ’s conclusions. In a one-page decision,
a single member of the BIA found that the IJ had “correctly applied the case
law regarding terrorism investigations.” It noted that the IJ had considered
5
No. 14-60697
Petitioner’s “argument that the government arrested and harmed him for
reasons other than suspected terrorist support” and that the IJ had “concluded
that investigation of [Petitioner’s] ties to ONLF was the only reason (i.e. there
was no other reason, central or otherwise)” for his persecution. Finding no
clear error in the IJ’s determination, the BIA concluded that Petitioner did not
meet his burden of proof for asylum or withholding of removal under the INA.
Petitioner timely sought review in this court.
II.
A.
Generally, we review only the final decision of the BIA. Zhu v. Gonzales,
493 F.3d 588, 593 (5th Cir. 2007). When, as in the present case, the BIA’s
decision is affected by the IJ’s ruling, however, we also review the IJ’s decision.
Id. We review the legal conclusions of the IJ and the BIA de novo, and we
review their factual findings for substantial evidence. Majd v. Gonzales, 446
F.3d 590, 594 (5th Cir. 2006). Under the substantial evidence standard, “the
BIA’s finding is conclusive unless, based on the evidence presented in the
record, any reasonable adjudicator would be compelled to conclude to the
contrary.” Martinez-Martinez v. Holder, 769 F.3d 897, 899 (5th Cir. 2014).
B.
Petitioner challenges the IJ’s denial of his asylum application, arguing
that the IJ made legal errors when reaching this conclusion and that
substantial evidence did not support a finding that he failed to meet the
requirements of 8 U.S.C. § 1158. Under § 1158(b)(1), the Attorney General has
the discretion to grant asylum to refugees who meet certain requirements. “To
establish that the applicant is a refugee within the meaning of
[§ 1101(a)(42)(A)], the applicant must establish that race, religion, nationality,
membership in a particular social group, or political opinion was or will be at
6
No. 14-60697
least one central reason for persecuting the applicant.” 1 8 U.S.C.
§ 1158(b)(1)(B)(i). “[A]lthough a statutorily protected ground need not be the
only reason for harm, it cannot be incidental, tangential, superficial, or
subordinate to another reason for harm.” Sharma v. Holder, 729 F.3d 407, 411
(5th Cir. 2013) (alteration in original) (quoting Shaikh v. Holder, 588 F.3d 861,
864 (5th Cir. 2009)). 2 However, the BIA recognizes actionable mixed motive
cases, where persecutors may have legitimate reasons for their actions, but an
additional central reason for their actions is persecution on account of a
protected category. See In Re S-P-, 21 I. & N. Dec. 486, 492 (BIA 1996).
Petitioner argues that the IJ erred in concluding that “the Ethiopian
government took actions against the respondent only because it [was]
attempting to suppress the violent activities of the ONLF” and it believed that
Petitioner was supporting the ONLF and knew other supporters that he could
reveal to the government. Petitioner argues that there was not substantial
evidence to support a finding that he was solely persecuted on account of the
government’s investigation into the ONLF, because evidence supported that
another central reason for the persecution was his ethnic or familial
membership. 3 Petitioner also asserts that persecution on account of a
mistaken belief that he was a supporter of the ONLF is persecution on account
of imputed political opinion. Finally, Petitioner argues that the IJ made a legal
error by not considering several factors that suggest that the terrorism
investigation was pretext for persecution on account of another central reason.
1 The IJ and the BIA did not address whether Petitioner established a well-founded
fear of persecution as required to be eligible for asylum. See Abdel-Masieh v. INS, 73 F.3d
579, 583–84 (5th Cir. 1996).
2 Congress passed the REAL ID Act in 2005 and clarified that “on account of” means
“one central reason for.” 8 U.S.C. § 1158(b)(1)(B)(i).
3 The IJ “assume[d] arguendo that both of these claimed groups are particular social
groups within the meaning of the Act, and that [Petitioner was] a member of both of those
groups.”
7
No. 14-60697
Determining “[a] persecutor’s actual motive” when considering whether
an alien is eligible for asylum is a factual finding. In re N-M-, 25 I&N Dec.
526, 532 (BIA 2011). Therefore, we review for substantial evidence the IJ’s
determination that the persecutor was solely motivated by a legitimate
suspicion of Petitioner’s being an ONLF supporter. See Majd, 446 F.3d at 594.
“[W]e nevertheless may reverse a decision that was decided on the basis of an
erroneous application of the law.” Mikhael v. INS, 115 F.3d 299, 305 (5th Cir.
1997).
C.
The IJ and the BIA ultimately concluded that Petitioner was not
persecuted on account of a protected ground because the Liyu police were solely
investigating terrorism. As the BIA characterized it, “The [IJ] concluded that
the harm respondent suffered was not persecution because it occurred during
a terrorism investigation.” Importantly, the IJ fully credited Petitioner’s
testimony, which included the assertions that the Liyu police suspects all
Ogaden clan members of being ONLF members and that Petitioner does not
support the ONLF and does not know any members of the ONLF.
As noted by the IJ, this court has frequently upheld the BIA’s conclusion
that an alien was mistreated solely on account of a terrorist investigation. See
Mwembie v. Gonzalez, 443 F.3d 405, 414 (5th Cir. 2006); Ozdemir v. INS, 46
F.3d 6, 8 (5th Cir. 1994); Perez v. INS, No.94-40491, 1995 WL 313962, at *1
(5th Cir. May 5, 1995) (unpublished). However, in each of those cases, the
record supported that the investigation into terrorism was legitimate, and
substantial evidence did not support that an additional central reason for the
mistreatment was persecution on account of a protected ground. See also In re
R-, 20 I. & N. Dec. 621, 624 (BIA 1992) (“[T]here is no indication that the police
actions against the applicant extended beyond the investigation of and reaction
against those thought–rightly or wrongly–to be militants seeking the violent
8
No. 14-60697
overthrow of the government.”). Moreover, this court has recognized that
“excessive or arbitrary” punishment for criminal conduct can qualify as
persecution. Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir. 1996).
The BIA recognizes a distinction between legitimate investigation and
what is instead pretext for persecution. In cases where this distinction must
be made, “it is not an easy task to evaluate an asylum applicant’s claim that
harm was inflicted because of [a protected ground] rather than a desire to
obtain intelligence information,” and “there may have been . . . a combination
of these motives.” In re S-P-, 21 I&N Dec. at 493. In S-P-, the BIA listed
several factors for courts to consider when determining the motive of a
persecutor:
1. Indications in the particular case that the abuse was
directed toward modifying or punishing opinion rather than
conduct . . . ;
2. Treatment of others in the population who might be
confronted by government agents in similar circumstances;
3. Conformity to procedures for criminal prosecution or
military law including developing international norms regarding
the law of war;
4. The extent to which antiterrorism laws are defined and
applied to suppress political opinion as well as illegal conduct . . . ;
5. The extent to which suspected political opponents are
subjected to arbitrary arrest, detention, and abuse.
Id. at 494. 4 In S-P-, the alien was detained in a prison for six months following
accusations that he was involved in the ongoing conflict with a liberation group
4 While S-P- specifically addressed whether the alien was persecuted on account of an
imputed political opinion, “political opinion” could be replaced with any of the
§ 1158(b)(1)(B)(i) protected grounds. Contrary to the Government’s position, the BIA has
held that the REAL ID Act only altered how central the motive must be and not how the court
determines what the persecutor’s motive was. In re J-B-N- & S-M-, 24 I&N Dec. 208, 212–
14 (BIA 2007) (citing S-P- with approval and noting that when Congress enacted the Act, it
cited a Fifth Circuit mixed motive case, Girma v. INS, 283 F.3d 664 (5th Cir. 2002), with
approval). This court has accepted the BIA’s interpretation of the REAL ID Act. Shaikh, 588
F.3d at 864. It is in this context that we must read our statement in an unpublished decision:
“[T]he ‘mixed motives’ doctrine was altered by the passage of the REAL ID Act, which
9
No. 14-60697
and a recent attack. Id. at 487. During that time, he was often tortured and
threatened with death. Despite the facts that there was ongoing civil strife,
the government accused the petitioner of being a member of a terrorist group,
and the government questioned him about the identity and location of
members of that group, the court noted that “the harm inflicted upon the
applicant . . . went well beyond the bounds of legitimate questioning for
intelligence gathering.” Id. at 495. Differentiating between persecution and a
legitimate investigation, the BIA considered the length of the questioning, the
nature of the questions, the harm suffered, and the broader context of the
conflict. Id. When holding that the petitioner was persecuted on account of an
imputed political opinion, the BIA also emphasized that young males of
petitioner’s ethnicity were often targeted as suspects. Id. at 495.
Despite the similarities to S-P-, in Petitioner’s case, the IJ did not
consider that the investigation could have been pretext for persecution or that
the investigators could have had multiple central motivations for their actions.
The IJ also did not recognize any distinction between Petitioner’s case and the
cases in which this court has affirmed findings that the sole motivation for the
harm and detention was a legitimate investigation into criminal activity.
The IJ did not consider evidence which suggests that this terrorist
investigation may have been pretext for persecution, despite the fact that the
IJ credited Petitioner’s testimony. Petitioner testified that the Ethiopian
government suspected all Ogaden clan members to be ONLF members,
including business owners in Fik and anyone that did not support the
government. The record also established that there are few judicial protections
for those accused of being associated with the ONLF and that protections for
amended a number of provisions of the Immigration and Nationality Act.” Haile v. Holder,
496 F. App’x 459, 460–61 (5th Cir. 2012)
10
No. 14-60697
those not charged with illegal conduct are often ignored. Petitioner was never
criminally charged for illegally supporting the ONLF, but he was held in
custody for two months. In addition, Petitioner’s uncle and father were both
detained and killed, and petitioner’s grandfather remains detained, all without
ever being charged for illegal conduct. There was also no evidence of a recent
ONLF terrorist attack in Petitioner’s region. Had the IJ properly considered
these factors, he may have concluded that the Liyu police in Fik typically acted
without reasonable suspicion, beyond the bounds of clearly established laws,
and not for the sole purpose of investigating illegal conduct.
The IJ also did not consider that the Ethiopian government’s
maltreatment of Petitioner went well beyond investigatory. Petitioner was
accused of supporting the ONLF after he opened a grocery store that his father
previously operated. Although the Liyu police originally suspected his father
of supporting the ONLF through the store, Petitioner opened the store a year
after his father’s execution. Petitioner operated the store for only a month
before he was arrested, and the Liyu police directly asked him “if he wanted to
go the same way his father went.” On this tenuous suspicion of support for a
terrorist organization, Petitioner was detained for two months and violently
tortured without ever being criminally charged. In addition, Petitioner was
released only when he agreed to act as a spy for the government. Each of these
factors distinguishes this case from previous cases where the record supported
that the only central reason for the petitioner’s mistreatment was a legitimate
investigation into terrorism or criminal activity.
Contrastingly, in cases in which this court or the BIA has found a
legitimate investigation to be the sole purpose of mistreatment, the alien was
very closely linked to the terrorist group or criminal activity being
investigated. In addition, those cases often involved lesser periods of
persecution and active terrorist activity. See Mwembie, 443 F.3d at 414 (alien
11
No. 14-60697
was in the building at the time of an assassination and considered a suspect
for murder); Ozdemir, 46 F.3d at 7 (alien participated in an anti-government
demonstration, numerous terrorist incidents had occurred in the area, and the
alien was detained for only three days); Perez, 1995 WL 313962, at *1 (alien
was only questioned once and was accused of being a member of the guerilla
group and having knowledge about the leader).
Petitioner’s argument also finds support in a June 24, 2015 unpublished
BIA decision in which a three-judge panel discredited the Liyu police’s
investigation into the ONLF. In that case, which Petitioner submitted to this
court in a 28(j) letter, the BIA relied on S-P- and distinguished this court’s
decisions noted above. The BIA considered the Liyu officers’ treatment of the
petitioner and the petitioner’s relatives and the “brutal” campaign against
anyone the Liyu police believed to be associated with the ONLF. Concluding
that the petitioner was persecuted on account of imputed political opinion, the
BIA noted that “there is evidence in the record that the government targets
the Ogaden local population as suspected ONLF followers, and evidence that
these suspected individuals are persecuted for their imputed anti-government
political opinion.” This BIA decision supports our conclusion that the IJ must
properly consider whether the very similar investigation in this case was only
motivated by a legitimate suspicion of Petitioner’s support of the ONLF.
Because the BIA did not consider whether the Liyu police’s investigation
was legitimate or pretextual, the BIA concluded that Petitioner was not
persecuted on account of a protected ground. The IJ erred by not conducting
the mixed motive analysis described above, and the IJ’s reasoning cannot be
reconciled with S-P- and other cases describing factors that should be
considered when determining an alleged persecutor’s true motives. As a result,
we remand for the BIA to examine the record “in light of the agency’s own
established standards for mixed motive claims.” Vumi v. Gonzales, 502 F.3d
12
 No. 14-60697
150, 159 (2d Cir. 2007) (directing the BIA to apply S-P-); see INS. v. Orlando
Ventura, 537 U.S. 12, 17 (2002) (encouraging courts to “giv[e] the BIA the
opportunity to address the matter in the first instance in light of its own
expertise”); Diaz-Resendez v. INS, 960 F.2d 493, 498 (5th Cir. 1992);
Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006) (“Thus, where, as
here, the IJ misapplies the law in evaluating a request for asylum, the
appropriate remedy is to remand so that the agency may apply the correct legal
standard in the first instance.”); Hirpa v. Holder, 327 F. App’x 265, 268 (2d Cir.
2009) (“Accordingly, because the agency failed to consider the political context
of Hirpa’s alleged persecution, we remand to give the BIA the opportunity, in
the first instance, to properly analyze Hirpa’s claim.”).
Because the basis of the Liyu police’s maltreatment is unclear, on
remand, the BIA should determine whether one central reason for the Liyu
police’s maltreatment was on account of his political opinion, his ethnicity, or
his family, 5 Sharma, 729 F.3d at 411—especially given that three other
members of Petitioner’s family were detained or killed before Petitioner and
that the Liyu police’s belief that Petitioner was supporting the ONLF was
mistaken. If the BIA concludes that Petitioner was persecuted on account of a
protected ground, the BIA should then determine whether Petitioner
established a well-founded fear of persecution. See Abdel-Masieh, 73 F.3d at
583–84. However, we note that the BIA did find that Petitioner “suffered
serious physical abuse by Ethiopian government agents” entitling him to CAT
protection, and this court has held that proving “torture” under CAT is a more
5 Family background is not an enumerated protected ground under the INA. We note
that each court that has addressed the issue has concluded that family background can
constitute a particular social group under the INA. Crespin-Valladares v. Holder, 632 F.3d
117, 125 (4th Cir. 2011) (citing Al–Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009),
Ayele v. Holder, 564 F.3d 862, 869 (7th Cir. 2009), Jie Lin v. Ashcroft, 377 F.3d 1014, 1028
(9th Cir. 2004), and Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993)).
13
No. 14-60697
stringent standard than “well-founded fear of persecution.” See Roy v.
Ashcroft, 389 F.3d 132, 140 (5th Cir. 2004); see also Ighodaro v. Holder, 354 F.
App’x 152, 155 (5th Cir. 2009).
III.
Because the IJ failed to consider factors central to determining whether
the only reason for Petitioner’s detention and maltreatment was a legitimate
investigation into terrorism, we grant the petition for review and remand this
case to the BIA for further proceedings consistent with this opinion.
14