REVISED FEBRUARY 25, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60295
SOSSINA GIRMA,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
February 20, 2002
Before JONES, WIENER, and PARKER, Circuit Judges.
PER CURIAM:
Sossina Girma, appeals a decision by the Board of Immigration
Appeals (hereinafter “BIA”) denying her application for asylum and
withholding of deportation.1 Finding a proper application of the
1
Although this opinion refers only to Sossina Girma, the case
involves a joint deportation proceeding where Sossina Girma’s
request for asylum and withholding of deportation was joined with
that of her minor daughter, Elshaday Abdo, who is seeking
derivative asylum on the basis of Girma’s application pursuant to
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mixed motive standard and substantial evidence to support the BIA’s
factual conclusions, we affirm.
BACKGROUND
Girma, a native Ethiopian citizen of Amharic ethnicity,
entered the United States as a non-immigrant visitor in November
1991, with authorization to remain in the United States until
November 11, 1992. After failing to depart as required, Girma
filed an application for asylum and withholding of deportation in
the fall of 1995. In December 1995, the INS issued an Order to
Show Cause.
At her evidentiary hearing in the spring of 1996, Girma
testified to the following: On June 30, 1991, Girma was abducted
from her home/restaurant in Ethiopia by five masked men wearing
army fatigue type clothing. Girma was then blindfolded, placed in
a vehicle and driven to a warehouse full of wooden furniture where
she was held for two hours and then questioned concerning her
involvement with the All Amhara People’s Organization (hereinafter
“AAPO”). After she admitted her affiliation with the AAPO, the
abductors demanded that Girma pay a ransom for her release.
Insisting that she had no money, Girma refused to pay the ransom.
Angered by Girma’s refusal, the abductors assaulted and raped her.
The abductors then drove Girma approximately 30 miles from the
warehouse and set her free. Girma informed the local police of the
incident; however, they did not believe her story and informed her
that she would be “persecuted” if she continued “telling lies.”
Girma was then admitted to a hospital where she remained for
approximately one month. Between the time of her release from the
hospital in late July and her departure to the United States in
8 U.S.C. § 1158(b)(3).
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November 1991, Girma suffered no further encounters with her
abductors.
In support of her testimony and application for asylum, Girma
submitted a letter on AAPO letterhead dated July 17, 1991,
identifying her as an AAPO member. Although Girma was in Ethiopia
on July 17, 1991, the letter strongly advised Girma not to return
to Ethiopia and failed to mention that Girma had been raped or
beaten on June 30, 1991. Girma also submitted various articles
discussing the political conditions in Ethiopia, including an
Amnesty International study from 1995 indicating that the AAPO was
not formed until 1992.
Based upon the evidence presented, the Immigration Judge
(hereinafter “IJ”) denied Girma’s application. In March 2000, the
BIA conducted a complete review of the record under a mixed motive
analysis and affirmed the IJ’s ruling upon a finding that Girma did
not present adequate evidence from which one would reasonably
conclude that the harm she suffered was motivated, at least in
part, on account of her membership in a particular social group,
her actual or imputed political opinions, or any other protected
ground. In reaching its decision, the BIA found that Girma failed
to adequately establish who attacked her and that they were
motivated on account of a protected ground rather than an
unprotected one. Girma now challenges the BIA’s decision.
STANDARD OF REVIEW
“We have authority to review only an order of the BIA, not the
IJ, unless the IJ’s decision has some impact on the BIA’s
decision.” Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997)
(citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)). Here, the
BIA did not adopt the decision of the IJ, but conducted a complete
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review of the record. Thus, our review is limited to the BIA’s
decision. The BIA’s legal conclusions are reviewed de novo, while
factual conclusions are reviewed for substantial evidence. See
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996)
(citations omitted). “Under the substantial evidence standard
applicable to review of denials of asylum, we must defer to the
BIA’s factual findings unless the evidence is so compelling that no
reasonable fact finder could fail to find otherwise.” Mikhael, 115
F.3d at 304. “The BIA’s determination that [Girma] was not
eligible for asylum must be upheld if supported by reasonable,
substantial and probative evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812,
815, 117 L. Ed. 2d 38 (1992) (internal quotations and citation
omitted).
DISCUSSION
On appeal, Girma argues that the BIA erred in denying her
asylum application and that she is entitled to relief because of
her past persecution and well-founded fear of future persecution on
account of her political opinion and association with the AAPO.
Specifically, Girma contends that the BIA incorrectly required her
to prove that her persecutors were motivated by a protected ground
to the exclusion of other motivations, and therefore, failed to
properly apply the mixed motive standard. Furthermore, Girma
maintains that she satisfied the evidentiary burden set forth in
Elias-Zacarias, by providing some evidence that the persecution she
suffered was motivated, at least in part, by a protected ground.
The Attorney General may grant asylum to an alien who is a
refugee. 8 U.S.C.A. § 1158(b)(1) (West 1999). The term alien is
defined as “any person not a citizen or national of the United
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States.” 8 U.S.C.A. § 1101(a)(3) (West 1999). An alien is a
refugee when he or she “is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection
of, that country 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.A. §
1101(b)(42) (West 1999).
“The level of proof required to satisfy the requirements for
withholding of deportation is more stringent than for asylum
purposes.” Mikhael, 115 F.3d at 306 (citations omitted). To avoid
deportation, “an alien must establish a clear probability of
persecution.” INS v. Stevic, 467 U.S. 407, 413, 104 S. Ct. 2489,
2492, 81 L. Ed. 2d 321 (1984). Thus, where an alien fails to
satisfy the requirements for asylum, he or she will also have
failed to satisfy the requirements for withholding of deportation.
A. Mixed Motive Analysis
Oftentimes, persecutors will convey to their victims the
motivation behind the persecution. Other times they may not.
Persecution may also result from a mixture of motivations.
Although our research reveals no Fifth Circuit case, and neither
Girma nor the government have brought one to our attention, which
involves a mixed motive analysis in the context of asylum law,2 the
BIA and at least two other circuit courts have applied a mixed
motive analysis. In re S-P-, 21 I. & N. Dec. 486 (BIA 1996); Borja
2
Girma suggests that our decision in Rivas-Martinez v. INS, 997
F.2d 1143 (5th Cir. 1993), involved a mixed motive case. However,
that case recognized that when an asylum applicant has voiced a
non-political excuse to avoid conscription, he is not thereafter
precluded from demonstrating that the conscriptors either knew or
would learn of the applicant’s political opposition by extraneous
evidence. Rivas-Martinez, 997 F.2d at 1148.
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v. INS, 175 F.3d 732 (9th Cir. 1999)(en banc); Osorio v. INS, 18
F.3d 1017 (2nd Cir. 1994).
Under a mixed motive analysis, an applicant need not show past
persecution or fear of future persecution “solely on account of” a
protected ground. Borja, 175 F.3d at 735 (quoting Osorio, 18 F.3d
at 1028. Stated another way, “the presence of possible mixed
motives need not [necessarily] defeat an asylum claim.” Kozulin v.
INS, 218 F.3d 1112, 1117 (9th Cir. 2000) (internal quotations and
citations omitted) (discussing the holding in Borja, 175 F.3d
732). An applicant must only show that one of the persecutor’s
motives falls within a statutorily protected ground. Singh v.
Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995). Furthermore, an
applicant is not required to provide direct proof of her
persecutor’s motives but rather some evidence of it, direct or
circumstantial. Elias-Zacarias, 502 U.S. at 483, 112 S. Ct. at
816-17. The evidence presented, however, must compel a reasonable
fact-finder to conclude that the harm suffered by an applicant was
motivated, at least in part by, a protected ground. Borja, 175
F.3d at 736.
In the instant case, the BIA concluded that Girma “did not
establish by sufficient evidence that those who harmed her were
motivated at least in part by a protected ground.” Particularly
important in this conclusion, was the BIA’s determination that
Girma failed to adequately establish who attacked her. The BIA
reached this conclusion because Girma admitted in her evidentiary
hearing that her persecutors “could have been government officials
or common criminals.” The BIA also found that Girma did not
sufficiently establish that her persecutors were motivated by her
membership in the AAPO or political opinion, rather than her
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financial status as a business woman. The BIA reached this
conclusion upon a finding that the record indicated that Girma’s
persecutors were interested in her money and only began to harm her
when she indicated that she could not pay the ransom sum they
demanded from her. Furthermore, the BIA noted that Girma
“acknowledged that she fears future harm from the government
because the government believes that the respondent has money.”
Girma contends that in reaching its decision, the BIA erred in
its mixed motive analysis by requiring her to demonstrate, to the
exclusion of all other motivating factors, that her persecutors
were motivated by a protected ground. Girma bases her argument
concerning exclusivity of motivation upon a single sentence in the
BIA decision which reads: “In addition, she did not sufficiently
establish that her attackers were motivated by the respondent’s
membership in the All Amhara People’s Organization (“AAPO”) or
political opinion, rather than her financial status as a business
woman.”
Although this sentence, read alone, may appear at first to
support Girma’s argument, when read in the context of the entire
BIA decision, Girma’s argument fails. In its decision, the BIA
acknowledged that it was employing a mixed motive analysis, and
that under this inquiry, the predominant motive for the abuse is
not determinative. The BIA further acknowledged that an applicant
for asylum must present evidence sufficient for one to reasonably
believe that the harm suffered was motivated in meaningful part by
a protected ground. A mixed motive analysis, by its very nature,
requires that there be more than one possible factor motivating the
persecutor. Here, the BIA examined motivations based upon
economics, political opinion and membership in a social group. The
BIA also acknowledged that Girma testified that she was kidnaped,
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questioned, beaten and raped on account of her AAPO membership, but
found that “the record indicate[d] that the respondent’s attackers
were interested in the respondent’s money and only began to harm
her when she indicated that she could not pay the ransom sum.”
Although an applicant is not required to present evidence showing,
to the exclusion of all other factors, that the persecutor was
motivated by a protected ground, the evidence must still be of such
weight that it compels the fact-finder to conclude that the
applicant suffered past persecution or has a well-founded fear of
future persecution on account of a protected ground. Borja, 175
F.3d at 735.
After a complete review of the record, the BIA determined
that Girma “did not establish by sufficient evidence that those who
harmed her were motivated at least in part by a protected ground.”
The BIA’s use of the phrase “rather than,” was not an expression of
a mutual exclusivity standard between protected and unprotected
grounds but an explanation of its findings concerning the
sufficiency of the evidence relative to multiple possible
motivating grounds, two of which are protected and one which is
not. The analysis performed by the BIA was consistent with a mixed
motive inquiry’s requirements under Borja.
B. Substantial Evidence
Girma maintains that she has satisfied her evidentiary burden
under Elias-Zacarias by providing some evidence, both direct and
circumstantial, that her persecutors were motivated in part by a
protected ground. Elias-Zacarias involved a Guatemalan native who
fled his country to avoid conscription by Guatemalan guerillas.
The issue before the Court was whether forced conscription by a
guerilla organization necessarily constituted persecution. At his
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asylum and withholding of deportation hearing before the IJ, Elias-
Zacarias admitted that he did not want to join the guerillas for
fear of retaliation from the government. The IJ ultimately denied
his application and the BIA affirmed the IJ’s decision. On appeal,
the Ninth Circuit reversed the BIA’s decision and held that a
guerilla organization’s coercive acts of conscription constitute
persecution on account of political opinion because resisting
conscription is, in effect, expressing a political opinion contrary
to that of the persecutor, whose political motive underlies the
coercive acts.
The Supreme Court reversed the Ninth Circuit and held that
conscription by coercive acts does not necessarily constitute
persecution on account of political opinion, as even a person who
supports a guerilla organization might resist recruitment for a
variety of reasons unrelated to any political opinion. Elias-
Zacarias, 502 U.S. at 482, 112 S. Ct. at 815-16. The Court did not
decide whether Elias-Zacarias’s failure to take sides with any
political faction constituted the affirmative expression of a
political opinion. The Court did hold, however, that even assuming
Elias-Zacarias’s failure to politically align himself with one side
or the other constituted a political opinion, he must still
“establish that the record also compels the conclusion that he has
a ‘well-founded fear’ that the guerillas will persecute him because
of that political opinion, rather than because of his refusal to
fight with them.” Elias-Zacarias, 502 U.S. at 483, 112 S. Ct. at
816. (emphasis in original). In answer to Elias-Zacarias’s
objection that he could not provide direct proof of his
persecutor’s motives, the Court held that direct proof was not
required, but rather some evidence of it, direct or circumstantial,
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and in order to warrant reversal of the BIA’s determination, the
evidence presented must be “so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483, 112 S. Ct. at 816-17.
Reversal of a BIA determination under a substantial evidence
standard does not hinge upon the quantity of evidence presented,
but rather the quality. To reverse the BIA’s determination, the
evidence presented must compel a reasonable fact-finder to conclude
that Girma suffered past persecution or has a well-founded fear of
future persecution because of a protected ground. Id. Although
Girma unquestionably presented some evidence that her persecutors
were motivated by a protected ground, the record also contains
evidence which questions its credibility. It remains for the BIA,
however, to determine whether the evidence is sufficient to warrant
a grant of asylum. Rivas-Martinez, 997 F.2d at 1148. Here, after
conducting a complete review of the record, the BIA properly
applied the mixed motive analysis and found the evidence presented
to be insufficient to reasonably conclude that the harm suffered by
Girma was motivated, at least in part, on account of her membership
in a particular social group, her actual or imputed political
opinions, or any other protected ground. Any disagreement we might
have with the BIA’s evaluation of the facts is not a sufficient
ground for reversal. A reasonable fact-finder could have found the
evidence presented by Girma sufficient to establish past
persecution or a well-founded fear of future persecution. We do
not find, however, that the evidence presented would compel a fact-
finder to do so. Accordingly, we find that the BIA decision
reflects a proper application of the mixed motive standard and is
supported by substantial evidence.
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CONCLUSION
For the reasons stated above, the decision of the BIA is
affirmed.
AFFIRMED.
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