03-40052-ag(L)
Manzur v. DHS
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 – – – – – –
5
6 August Term, 2006
7
8 (Argued: January 26, 2007 Decided: July 13, 2007)
9
10 Docket Nos. 03-40052-ag(L), 03-40054-ag(con),
11 03-40056-ag(con), 03-40068-ag(con)
12 ________________________________________________________________
13
14 RANA YASMEEN MANZUR, ZOHEB MANZUR,
15 SHAFQAT MUHAMMED MANZUR, and RUBANA MANZUR
16
17 Petitioners,
18
19 -v.-
20
21 U.S. DEPARTMENT OF HOMELAND SECURITY,
22
23 Respondent.
24 ________________________________________________________________
25
26 Before: KEARSE, SOTOMAYOR, Circuit Judges, and KOELTL, District
27 Judge.*
28 ________________________________________________________________
29
30 On petition for review of a decision of the Board of
31 Immigration Appeals summarily affirming the Immigration Judge’s
32 denial of the petitioners’ applications for asylum and withholding
33 of deportation pursuant to the Immigration and Nationality Act and
34 withholding of deportation under the Convention Against Torture.
35 Because the decision of the Immigration Judge is deficient in
36 several significant respects, depriving the Court of the
37 opportunity to conduct a meaningful judicial review, the petition
38 for review is GRANTED. The decision of the BIA is VACATED, and
39 the case is REMANDED for further proceedings consistent with this
40 opinion.
41
42 WALTER H. RUEHLE, Legal Aid Society,
43 Rochester, New York, for Petitioners.
44
45 JOHN C. TRUONG, Assistant United States
46 Attorney, Washington, D.C. (Kenneth L.
*
The Honorable John G. Koeltl of the United States District Court
for the Southern District of New York, sitting by designation.
1
1 Wainstein, United States Attorney for the
2 District of Columbia, and Madelyn E.
3 Johnson and Heather R. Phillips,
4 Assistant United States Attorneys,
5 Washington, D.C., on the brief), for
6 Respondent.
7
8
9 KOELTL, District Judge:
10 Rana Yasmeen Manzur and three of her adult children, Zoheb
11 Manzur, Shafqat Muhammed Manzur, and Rubana Manzur, all natives
12 and citizens of Bangladesh, petition for review of the May 15,
13 2003 orders of the Board of Immigration Appeals (“BIA”) affirming
14 without opinion the January 31, 2002 decision of Immigration Judge
15 (“IJ”) Michael Rocco, denying the petitioners’ applications for
16 asylum and withholding of deportation (now “withholding of
17 removal”) pursuant to the Immigration and Nationality Act (“INA”
18 or the “Act”) and withholding of deportation under the Convention
19 Against Torture (“CAT”).1 Because the IJ’s analysis is deficient
20 in several significant respects, depriving this Court of the
21 opportunity to conduct a meaningful judicial review, we grant the
22 petition, vacate, and remand.
23
24
25
26
1
The procedure now referred to as “withholding of removal” was
previously described as “withholding of deportation,” the term used in
the IJ’s decision. See Tandia v. Gonzales, 437 F.3d 245, 247 n.5 (2d
Cir. 2006).
2
1 I.
2 A.
3 The petitioners are the immediate family members of the late
4 Major General Mohammad Abul Manzur, a former high-ranking official
5 in the Bangladeshi military and a leading Bengali “freedom
6 fighter” in the 1971 Bangladeshi war for independence from
7 Pakistan. Rana Manzur, the lead petitioner, is General Manzur’s
8 widow, and co-petitioners Zoheb, Shafqat, and Rubana Manzur are
9 three of the couple’s four children.2
10 The last time Rana Manzur saw her husband, and the children
11 their father, was in May 1981 when three military officers entered
12 the Manzurs’ home in the middle of the night and took General
13 Manzur away. According to the petitioners, that incident marked
14 the beginning of a pattern of persecution that lasted
15 approximately twelve years, through 1993, around the time the last
16 of the petitioners, Rana Manzur, finally left Bangladesh.
17 The following morning, after General Manzur was taken away,
18 Rana Manzur and her four young children awoke to find the
19 telephone disconnected and their normal security detail replaced
20 by more than one hundred armed guards, acting under military
21 command. Rana Manzur also learned that the night before, the same
2
The fourth child, Karishma Manzur, had her applications for
asylum and withholding of deportation under the Act, and withholding of
deportation under the CAT, denied together with those of the rest of her
family, but she was granted a suspension of deportation and thus is not
a party to this petition for review.
3
1 night General Manzur was taken away, the Bangladeshi president,
2 Ziaur Rahman (known as “Zia”), had been assassinated. When Rana
3 Manzur tried to escape to find a telephone to call her husband,
4 she was captured by the guards, returned to her home, and
5 handcuffed. Her children were tied up. The guards then looted
6 the house. Rana Manzur was handcuffed intermittently over the
7 next several days as the family remained under house arrest.
8 About three days after their house arrest began, a Lieutenant
9 Colonel Mohammed Abdul Awal, who was married to General Manzur’s
10 younger sister, came to visit Rana Manzur at her home. Colonel
11 Awal was a “razakar,” a Bengali officer formerly in the Pakistani
12 army who fought against Bangladeshi independence in the 1971 war
13 and against freedom fighters like General Manzur. Colonel Awal
14 convinced Rana Manzur to leave her home and accompany him to
15 Dhaka, where he told her General Manzur had been taken.
16 Escorted by Colonel Awal and armed guards, the family was
17 transported by military helicopter to the capital city of Dhaka.
18 Once there, the family was driven to a two-story house in a remote
19 area. They never saw General Manzur. Instead, for the next
20 month, the family was detained in that house, confined to a single
21 room on the second floor. During that time, the family was under
22 constant guard by armed men dressed in civilian attire. These men
23 told Rana Manzur that they were with the “foreign service,” but
24 she suspected that they were with the Directorate of General
4
1 Forces Intelligence (“DGFI”), a government intelligence
2 organization, then headed by a razakar. The guards refused to
3 tell Rana Manzur why the family was being detained. After about a
4 month, the family was released.
5 Once released, Rana Manzur learned that her husband, General
6 Manzur, had been killed. According to the account provided by the
7 Bangladeshi government, General Manzur was executed for his
8 alleged role in a coup d’etat attempt that led to President Zia’s
9 assassination. In addition, thirteen other military officers,
10 eleven of whom were freedom fighters, were eventually executed for
11 their alleged involvement in the coup, including a nephew of
12 General Manzur; for the same alleged reason, two hundred freedom
13 fighters were dismissed from the army. Allegedly, Lieutenant
14 General Hossain Mohammed Ershad, a razakar who was then head of
15 the Bangladeshi army, ordered General Manzur’s execution.
16 The petitioners contend--consistent with at least one account
17 of the events surrounding the 1981 coup--that General Ershad
18 fabricated General Manzur’s involvement in the alleged coup and
19 orchestrated the president’s assassination as part of a high-level
20 conspiracy designed simultaneously to eliminate the president,
21 suppress political opposition from the freedom fighters,
22 particularly General Manzur, and clear the path for General
23 Ershad’s eventual rise to power. In 1982, General Ershad seized
24 control from Bangladesh’s interim government in a bloodless,
5
1 military coup, imposed martial law, and, in 1983, declared himself
2 president.
3 The petitioners allege that General Ershad was the driving
4 force behind their persecution in Bangladesh, both before and
5 after their release from detention. A friend in the military
6 informed Rana Manzur that after the 1981 coup, General Ershad
7 wanted to kill her and her children, but was talked out of the
8 idea by other officers. Another friend, whose husband was in the
9 military and privy to such information, informed Rana Manzur of a
10 government report alleging that she was involved in antigovernment
11 activity.
12 After the Manzurs’ release from confinement, the family
13 remained under constant surveillance, which lasted throughout
14 their time in Bangladesh; they were followed frequently by what
15 they perceived to be agents of the DGFI. For about six months
16 after their release, the petitioners lived with various extended
17 family members, but were forced to move frequently, in part
18 because these family members were fearful of what they perceived
19 to be a significant threat from ongoing government surveillance.
20 At this time, the DGFI would come to the house where the
21 petitioners were staying and ask personal questions of those with
22 whom the petitioners lived.
23 During their time in Bangladesh, the petitioners allege that
24 they suffered other harms as well, which they attributed to
6
1 General Ershad and his regime. These harms included alleged
2 economic privation, based on, for example, the government’s
3 refusal to provide Rana Manzur with the benefits to which she
4 believed she was entitled as a military officer’s widow,
5 obstruction of her employment opportunities, and the denial of a
6 bank loan to start a business. These alleged harms also included,
7 among other things, restrictions on travel, societal
8 discrimination, the denial of medical care to Rubana Manzur, and
9 several attempted rapes of Rana Manzur by an army officer who
10 accompanied her and her daughter on a trip outside the country.
11 In December 1990, General Ershad was ousted from power and
12 forced to resign by a democratic movement led in part by Begum
13 Khaleda Zia, the widow of former President Zia. Khaleda Zia was
14 elected Prime Minister of Bangladesh and assumed the office in
15 March 1991. Between September 1990 and September 1991, all of the
16 petitioners except for Rana Manzur left Bangladesh for the United
17 States.
18 Rana Manzur remained in Bangladesh after General Ershad was
19 ousted from power to investigate General Ershad’s involvement in
20 her husband’s death and to pursue his prosecution for the
21 execution of her husband. She was inspired by campaign statements
22 made by Khaleda Zia while running for Prime Minister accusing
23 General Ershad of the assassination of Khaleda Zia’s husband,
24 former President Zia, and stating that General Ershad should be
7
1 brought to justice. Immediately after General Ershad resigned,
2 Rana Manzur began speaking with lawyers about the possibility of
3 prosecuting General Ershad and, after Khaleda Zia’s election as
4 Prime Minister, attempted to meet and speak with Prime Minister
5 Zia on the subject. Her efforts, however, were unsuccessful.
6 Prime Minister Zia refused to meet with Rana Manzur, and the
7 lawyers with whom Rana Manzur spoke refused to take the case, at
8 least one of whom expressed fear for his safety.
9 In 1992, after Rana Manzur commenced her efforts to have
10 General Ershad prosecuted, she began receiving threatening phone
11 calls. The calls became more frequent in 1993. The calls
12 normally came in the middle of the night. The callers told her
13 that they knew her every move, knew about her attempts to meet
14 with Prime Minister Zia, and threatened that if she continued her
15 efforts, she would suffer the same fate as her husband. Apart
16 from the threatening anonymous calls, Rana Manzur received one
17 call from a Major Mizzan, a member of Prime Minister Zia’s
18 political party and a family friend, who advised her not to do
19 “anything silly” and not to pursue the subject, because she should
20 remember how her husband died.
21 Around this time, Rana Manzur was also visited on several
22 occasions by the “anticorruption police,” who asked her personal
23 questions about her life, income, and children. Further, after
24 her absence from a military ceremony in 1993, she received calls
8
1 from the DGFI inquiring as to her absence and accusing her of
2 trying to “conflict with the government.” Finally, in the fall of
3 1993, Rana Manzur observed an army jeep with what she perceived to
4 be DGFI agents parked openly in front of her house for the first
5 time. After that, she abandoned her efforts to pursue General
6 Ershad’s prosecution, went into hiding, and began seeking a way to
7 leave for the United States. She entered the United States
8 several months later, in January 1994, on a visitor’s visa.
9
10 B.
11 The IJ held a series of hearings on the petitioners’
12 applications for asylum and withholding of deportation. The
13 hearings commenced on July 22, 1997 and concluded with a final
14 hearing in January 2000. In a written decision dated January 31,
15 2002, the IJ denied the petitioners’ applications, but granted the
16 petitioners’ requests for voluntary departure.
17 The IJ found that the petitioners had “failed to show that
18 their experiences, whether considered singly or in the aggregate,
19 establish persecution within the meaning of the [INA].” While the
20 IJ did not appear to question the credibility of the petitioners
21 with respect to the individual incidents about which they
22 testified and provided evidence, he analyzed each of the incidents
23 and found that each incident did not support a finding of
24 persecution. He found, for example, that the petitioners’ release
9
1 from confinement in 1981 “without harm” did not rise to the level
2 of persecution or reveal action motivated by a desire to punish
3 the petitioners based on a protected ground such as membership in
4 a particular social group or political opinion. He found that the
5 petitioners’ testimony about harassment by individuals they
6 believed to be agents of the government of Bangladesh did not
7 describe harm that rose to the level of persecution under the INA.
8 The IJ rejected any claims of economic deprivation because the
9 petitioners failed to establish that they were unable to support
10 themselves, and because their economic conditions were more
11 consistent with economic reality than with conspiratorial design.
12 The IJ also found that the petitioners had not established that
13 whatever threats they received constituted persecution or
14 persecution on account of a protected ground.
15 On May 15, 2003, the BIA issued a separate order for each
16 petitioner affirming without opinion the decision of the IJ.
17 Thereafter, the petitioners filed this petition for review.
18
19 II.
20 To qualify for asylum, which is available at the Attorney
21 General’s discretion, an applicant bears the burden of
22 establishing that the applicant is “unable or unwilling” to return
23 to the applicant’s native country because of persecution or a
24 well-founded fear of persecution “on account of” a protected
10
1 ground: “race, religion, nationality, membership in a particular
2 social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42),
3 1158; see Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir.
4 2006); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
5 2004). While “persecution” is not defined in the INA, this Court
6 has explained that
7 persecution includes more than threats to life and
8 freedom, and therefore encompasses a variety of forms of
9 adverse treatment, including non-life-threatening
10 violence and physical abuse, or non-physical forms of
11 harm such as the deliberate imposition of a substantial
12 economic disadvantage. In short, persecution is the
13 infliction of suffering or harm upon those who differ on
14 the basis of a protected statutory ground. . . .
15
16 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.
17 2006) (internal citations, alterations, and quotation marks
18 omitted). A showing of past persecution on account of a protected
19 ground triggers a rebuttable presumption that the applicant has a
20 well-founded fear of future persecution on that ground. See Uwais
21 v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007); Secaida-
22 Rosales v. I.N.S., 331 F.3d 297, 306 (2d Cir. 2003).
23 In contrast to asylum, withholding of removal (formerly
24 “withholding of deportation,” see supra note 1, at 2) is
25 nondiscretionary, but requires the applicant to satisfy the more
26 stringent showing that “it is more likely than not” that the
27 applicant’s “‘life or freedom would be threatened’” on account of
28 one of the protected grounds if the applicant were returned to the
29 applicant’s native country. Ramsameachire, 357 F.3d at 178
11
1 (quoting 8 U.S.C. § 1231(b)(3)(A)); see Edimo-Doualla, 464 F.3d at
2 281; Yan Fang Zhang v. Gonzales, 452 F.3d 167, 172 (2d Cir. 2006).
3 To obtain withholding of removal under the CAT, an applicant must
4 show that it is more likely than not that the applicant would be
5 tortured if removed. 8 C.F.R. § 208.16(c); see Edimo-Doualla, 464
6 F.3d at 281.
7 Where, as here, the BIA affirms the decision of the IJ
8 without issuing an opinion, this Court reviews the decision of the
9 IJ directly, as the final agency determination. See Twum v.
10 I.N.S., 411 F.3d 54, 58 (2d Cir. 2005); Secaida-Rosales, 331 F.3d
11 at 305; see also 8 C.F.R. § 1003.1(e)(4).
12 Legal questions, including mixed questions of law and fact
13 and the application of law to fact, are reviewed de novo. See
14 Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005); Secaida-
15 Rosales, 331 F.3d at 307. This Court reviews the IJ’s factual
16 findings under the substantial evidence standard; findings of fact
17 are treated as “conclusive unless any reasonable adjudicator would
18 be compelled to conclude to the contrary.” 8 U.S.C.
19 § 1252(b)(4)(B); see also Zhou Yun Zhang v. U.S. I.N.S., 386 F.3d
20 66, 73 (2d Cir. 2004). An IJ’s factual finding will be affirmed
21 if it is “supported by evidence that is ‘reasonable, substantial,
22 and probative’ when considered in light of the record as a whole.”
23 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
12
1 2005) (quoting Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir.
2 2000)).
3 Despite the deference typically afforded IJ and BIA
4 decisions, this Court “require[s] a certain minimum level of
5 analysis from the IJ and BIA opinions denying asylum, and indeed
6 must require such if judicial review is to be meaningful.”
7 Poradisova, 420 F.3d at 77. Where the BIA has affirmed without
8 issuing an opinion, our review is limited “‘to the reasoning of
9 the IJ, and we will not search the record independently for a
10 basis to affirm the BIA.’” Jin Chen, 426 F.3d at 113 (quoting
11 Secaida-Rosales, 331 F.3d at 305); see also Cao He Lin v. U.S.
12 Dep’t of Justice, 428 F.3d 391, 400 (2d Cir. 2005). “[T]he
13 immigration court must adequately link its decision to the record
14 evidence in a reasoned opinion that properly applies the
15 law. . . .” Ivanishvili, 433 F.3d at 337.
16 This Court retains substantial authority to vacate and remand
17 BIA and IJ decisions that result from flawed reasoning, a
18 sufficiently flawed fact-finding process, or the application of
19 improper legal standards. See Rizal v. Gonzales, 442 F.3d 84, 89
20 (2d Cir. 2006); Cao He Lin, 428 F.3d at 400–01, 406; see also
21 Ivanishvili, 433 F.3d at 337. This Court also will not hesitate
22 to vacate and remand where the BIA or IJ analysis is insufficient
23 to determine whether the correct legal standard was applied. See
24 Beskovic v. Gonzales, 467 F.3d 223, 224 (2d Cir. 2006); Mirzoyan
13
1 v. Gonzales, 457 F.3d 217, 221 (2d Cir. 2006) (per curiam). Such
2 defects “are not excused by the fact that a hypothetical
3 adjudicator, applying the law correctly, might also have denied
4 the petition for asylum.” Jin Shui Qiu v. Ashcroft, 329 F.3d 140,
5 149 (2d Cir. 2003). This Court “will vacate BIA conclusions, as
6 to the existence or likelihood of persecution, that a perfectly
7 reasonable fact-finder could have settled upon, insofar as the BIA
8 either has not applied the law correctly, or has not supported its
9 findings with record evidence.” Id.
10 Finally, even if an IJ’s decision contains errors, the
11 decision will not be vacated and remanded if doing so would be
12 futile. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339
13 (2d Cir. 2006). This Court will decline a remand as futile if we
14 can “‘confidently predict’ that the agency would reach the same
15 decision absent the errors that were made.” Id. (quoting Cao He
16 Lin, 428 F.3d at 395); see also Edimo-Doualla, 464 F.3d at 282.
17
18 III.
19 The IJ in this case found, among other things, that the
20 petitioners failed to establish past persecution within the
21 meaning of the Act. The IJ never made a specific adverse
22 credibility determination. Instead, the IJ analyzed each of the
23 petitioners’ alleged incidents of persecution seriatim and
24 disposed of each claim individually by concluding--for various
14
1 reasons--that the incidents did not constitute past persecution.
2 Cf. Edimo-Doualla, 464 F.3d at 282. The IJ’s finding that the
3 petitioners failed to establish past persecution is deficient in
4 several respects. The IJ’s analysis is inadequate for us to
5 determine whether he properly considered the petitioners’ claims
6 in the aggregate, and his individual analysis of several of the
7 alleged incidents of harm contains both legal and factual errors.
8 Because we cannot confidently predict whether the IJ would adhere
9 to his decision absent these defects, we vacate the decision and
10 remand the case for further consideration.
11
12 A.
13 The IJ’s analysis is inadequate for this Court to determine
14 whether the IJ properly considered in the aggregate the incidents
15 of harm constituting the petitioners’ claim of past persecution.
16 While the IJ recited that he considered the petitioners’
17 experiences both singly and in the aggregate, there is no
18 reasoning in the decision that reflects that he did so. He
19 considered each of the incidents separately without determining
20 how they affected the significance of the other incidents.
21 However, this Court has cautioned against precisely this sort of
22 approach. See Poradisova, 420 F.3d at 79 (“Also troubling is the
23 IJ’s apparent (and erroneous) technique of addressing the severity
15
1 of each event in isolation, without considering its cumulative
2 significance.”); see also Edimo-Doualla, 464 F.3d at 283.
3 “Taking isolated incidents out of context may be misleading.
4 The cumulative effect of the applicant’s experience must be taken
5 into account.” Poradisova, 420 F.3d at 80 (quoting Office of the
6 United Nations High Commissioner for Refugees, Handbook on
7 Procedures and Criteria for Determining Refugee Status Under the
8 1951 Convention and the 1967 Protocol Relating to the Status of
9 Refugees (Geneva 1992)); see also Edimo-Doualla, 464 F.3d at 283
10 (“A series of incidents of mistreatment may together rise to the
11 level of persecution even if each incident taken alone does
12 not.”).
13 The petitioners’ claim of past persecution in this case is
14 primarily predicated on the alleged pattern of harms to which the
15 petitioners were subjected over approximately a twelve-year period
16 in Bangladesh. This pattern of incidents is significant in at
17 least two respects. First, accumulation of harm from the
18 individual incidents may rise to the level necessary for
19 persecution even though an individual incident may not. Second,
20 “the motive for the harm inflicted must be analyzed in light of
21 the context in which the harm occurred.” Uwais, 478 F.3d at 517
22 (emphasis added). The pattern provides context for the
23 petitioners’ claims and may lend evidentiary support to a
24 conclusion that individual incidents of harm were in fact “on
16
1 account of” a ground protected by the Act, such as political
2 opinion or social group membership.
3 The IJ’s practice of dividing this pattern of harms into
4 isolated incidents and disposing of each on different grounds,
5 without explaining the cumulative significance--if any--of each of
6 these harms on the petitioners’ aggregate claim of persecution,
7 both misconstrues the nature of the petitioners’ claim and
8 deprives this Court of the opportunity to review meaningfully any
9 aggregate analysis the IJ may have conducted. Thus, although the
10 IJ stated that he considered the petitioners’ claim both “singly”
11 and “in the aggregate,” there is no analysis in the decision that
12 shows that the IJ correctly applied this standard.
13
14 B.
15 Apart from the IJ’s apparent failure to consider adequately
16 the petitioners’ claim of past persecution in the aggregate, the
17 IJ also erred in his individual analysis of several of the alleged
18 incidents of harm.3
19
20
21
3
Although we discuss the IJ’s analysis of certain individual
claims, the IJ should address and--if appropriate--consider, as part of
his aggregate analysis, all of the events that the petitioners have
alleged as contributing to their persecution. See supra at 7–8 (listing
other alleged harms).
17
1 1.
2 First, the IJ erred in analyzing whether the petitioners’
3 month-long confinement in 1981 was persecution on account of a
4 protected ground. The IJ concluded, without further explanation,
5 that the petitioners’ “release from confinement in 1981 without
6 harm does not [1] describe harm that rises to the level of
7 persecution or [2] reveal action motivated by a desire to punish
8 the [petitioners] on account of familial relationship, political
9 beliefs or any political belief imputed to them.” The IJ’s
10 conclusions are unsupported.
11 The meaning of the IJ’s finding that the petitioners were
12 released “without harm” is unclear, and to the degree that it
13 means that their confinement did not support a finding of
14 persecution, it is unfounded. If the IJ meant, somewhat
15 trivially, that the petitioners suffered no harm at the moment of
16 their release, the IJ failed to consider adequately the harm
17 suffered during the petitioners’ month-long confinement. The
18 phrase “without harm” could also be a finding that the
19 petitioners’ month-long detention was not at all harmful. If so,
20 the IJ’s finding is not supported by substantial evidence. For
21 example, the IJ did not appear to consider that the petitioners
22 have been diagnosed with post-traumatic stress disorder based on
23 their alleged persecution in Bangladesh, which includes their
24 detention by authorities. Finally, “without harm” might refer to
18
1 the fact that the petitioners did not allege that they suffered
2 physical harm during their month-long detention. If the IJ meant
3 to suggest that a showing of physical harm is always required to
4 demonstrate persecution, this conclusion was error. No such
5 requirement has ever been established. See Ivanishvili, 433 F.3d
6 at 341 (“[P]ersecution includes . . . non-life-threatening
7 violence and physical abuse or non-physical forms of harm such as
8 the deliberate imposition of a substantial economic disadvantage.”
9 (internal quotation marks, alterations, and citations omitted)).
10 Other than the statement that the petitioners were released
11 “without harm,” the IJ provided no further explanation for his
12 finding that the petitioners’ month-long confinement did not rise
13 to the level of persecution. The IJ thus failed adequately to
14 link his decision to the evidence in the record and in doing so
15 deprived this Court of the opportunity to exercise any meaningful
16 review of this finding.
17 The IJ also rejected the evidence of confinement as a factor
18 in establishing a claim of past persecution because he found that
19 there was no evidence that those responsible for the confinement
20 sought to harm the petitioners “on account of familial
21 relationship, political beliefs or any political belief imputed to
22 them.”
23 The IJ noted that “there is no persuasive evidence that those
24 responsible [for General Manzur’s death] sought to harm the
19
1 [petitioners] for his opinions.” However, an asylum applicant can
2 establish a persecutor’s motives by either direct or
3 circumstantial evidence. See I.N.S. v. Elias-Zacarias, 502 U.S.
4 478, 483 (1992); Uwais, 478 F.3d at 517.
5 In this case, the petitioners were detained without
6 explanation immediately after General Manzur was taken away by
7 military officers in the middle of the night and, as petitioners
8 later learned, executed. The petitioners’ relationship to General
9 Manzur was no secret. Rana Manzur repeatedly asked about her
10 husband throughout the family’s detention. Furthermore, General
11 Ershad and Colonel Awal, who took the petitioners into detention,
12 were members of a political group that General Manzur had fought
13 against. Indeed, there was evidence that General Ershad wanted to
14 kill Rana Manzur and her children after the 1981 coup, but was
15 dissuaded from doing so. At the very least, the IJ erred in
16 apparently failing to consider this probative circumstantial
17 evidence that the Manzurs were detained on account of General
18 Manzur’s political opinions that were imputed to them or because
19 of their membership in a particular social group, defined by their
20 familial relationship to General Manzur.4 See Cao He Lin, 428
4
The IJ’s decision appears to assume that “familial relationship”
may be a protected ground for asylum purposes within the broader
category of membership in a particular social group, but did not discuss
this issue. See, e.g., In re A-M-E, 24 I. & N. Dec. 69, 73–74 (BIA Jan.
31, 2007) (discussing the standard for social group membership). We do
not address whether familial relationship may constitute a “particular
social group” under the INA, in light of the Supreme Court’s
determination that the BIA must decide this question in the first
20
1 F.3d at 400; Jin Shui Qiu, 329 F.3d at 149 (holding that all
2 factual assertions in a claim must be considered unless the
3 evidence is “too insignificant to merit discussion” (internal
4 quotation marks omitted)).
5 The IJ also appears to have imposed an overly stringent
6 burden of proof on the petitioners in analyzing whether the
7 petitioners’ month-long detention was on account of a protected
8 ground. In considering this issue, the IJ speculated that because
9 the petitioners’ confinement occurred during the chaotic period
10 following the assassination of President Zia, “their temporary
11 confinement may have had purposes unrelated to any persecution on
12 account of political views or family affiliation.” However, “an
13 asylum applicant need not show with absolute certainty why the
14 events occurred, but rather, only that the harm was motivated, in
15 part, by an actual or imputed protected ground.” Uwais, 478 F.3d
16 at 517; accord Osorio v. I.N.S., 18 F.3d 1017, 1028 (2d Cir.
17 1994). The IJ appears to have applied a stricter standard,
instance. Gonzales v. Thomas, 547 U.S. 183, 186–87 (2006) (per curiam);
see also Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d Cir. 2006) (per
curiam) (noting that an individual IJ’s interpretation, “even if
summarily affirmed by the BIA, [is] not sufficient to constitute the
agency’s interpretation”). Nor do we address whether familial
relationship may form the basis of an imputed political opinion, as
several other courts of appeals have suggested. See, e.g., Dia v.
Ashcroft, 353 F.3d 228, 255 (3d Cir. 2003) (en banc) (finding reasonable
petitioner’s conclusion that military officials raped his wife because
of his alleged involvement with rebels); Navas v. I.N.S., 217 F.3d 646,
659 n.18 (9th Cir. 2000) (“Where police beat and threaten the spouse of
a known dissident, it is logical, in the absence of evidence pointing to
another motive, to conclude that they did so because of the spouse’s
presumed guilt by association.”).
21
1 requiring the petitioners to disprove speculative alternative
2 explanations and failing to recognize that asylum can be based on
3 persecution that is motivated in part on a protected ground. This
4 was legal error.
5
6 2.
7 The IJ also erred in his analysis of the petitioners’ claim
8 of persecution based on the constant surveillance to which the
9 family was subjected after their release from detention. The IJ
10 concluded that the petitioners’ “alleged harassment by unknown
11 individuals believed to be agents of the government does not
12 describe harm that rises to the level of persecution under the
13 Act.” The only asserted basis for this conclusion was that
14 “[t]here is no evidence in this record that any of the
15 [petitioners] were ever arrested, detained or physically abused by
16 the conduct described.” This statement was plainly wrong because
17 all of the petitioners had been detained for more than a month in
18 1981. Assuming that the IJ was referring solely to the subsequent
19 surveillance, the IJ appears to have used an overly restrictive
20 definition of persecution. There is no requirement that a
21 petitioner claiming past persecution allege either detention or
22 physical harm. See Ivanishvili, 433 F.3d at 341; see also
23 Begzatowski v. I.N.S., 278 F.3d 665, 669 (7th Cir. 2002) (“Types
24 of actions that might cross the line from harassment to
22
1 persecution include: detention, arrest, interrogation,
2 prosecution, imprisonment, illegal searches, confiscation of
3 property, surveillance, beatings, or torture.” (internal quotation
4 marks omitted)), cited in Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d
5 554, 567 (2d Cir. 2006).
6 The IJ appears to have viewed skeptically the petitioners’
7 claim that the individuals engaged in the surveillance were
8 government agents, referring to them as “unknown individuals
9 believed to be agents of the government.” The IJ did not,
10 however, articulate this observation as an alternative basis for
11 denying the petitioners’ past persecution claim, and the IJ
12 provided no basis for a conclusion that surveillance was being
13 conducted by some non-governmental group. As best we can tell,
14 the IJ rejected this claim exclusively on the ground that it did
15 not describe harm rising to the level of persecution. Our review
16 is limited to the reasoning of the IJ, and as to this claim, that
17 reasoning was deficient.
18
19 3.
20 The IJ’s analysis of petitioners’ claim of past persecution
21 based on the threats that Rana Manzur received in response to her
22 efforts to have General Ershad prosecuted is also insufficient.
23 It is unclear whether the IJ rejected this claim because the
24 petitioners did not identify the source of the threats or because
23
1 the petitioners did not demonstrate that the threats were “on
2 account of” a protected ground. To the extent the decision rested
3 on the former conclusion, it was legal error. The IJ cited a case
4 from the Seventh Circuit Court of Appeals, Mitev v. I.N.S., 67
5 F.3d 1325 (7th Cir. 1995), for the proposition that “while threats
6 could amount to persecution, an asylum applicant must identify who
7 issued a particular threat, in what setting and for what purpose.”
8 In Mitev, however, the court was discussing the importance of the
9 “context” of threats and specifically discounted threats that came
10 from co-workers, often in the context of political discussions.
11 Mitev, 67 F.3d at 1331. The court did not conclude that anonymous
12 threats could not be included in the mix of evidence showing that
13 an applicant had been subjected to persecution. As this Court has
14 noted, “[c]oncluding that persecutors’ failure to reveal their
15 identities and motivations . . . undercuts an applicant’s
16 credibility does not rest on the ‘legitimate nexus’ required in
17 credibility findings.” Secaida-Rosales, 331 F.3d at 311; see also
18 Poradisova, 420 F.3d at 80 (“The IJ also unreasonably dismissed as
19 ‘of no value’ the anonymous threatening calls [the petitioner]
20 Tatiana received in 1992 simply, and inexplicably, because they
21 were anonymous.”).
22 To the extent the IJ concluded that the death threats were
23 not “on account of” a protected ground, the IJ failed to explain
24 adequately the basis for this conclusion. Specifically, the IJ
24
1 did not explain the basis for his conclusion that Rana Manzur’s
2 attempts to have General Ershad prosecuted did not constitute the
3 expression of a political opinion or cause a political opinion to
4 be imputed to her. Here, Rana Manzur actively pursued General
5 Ershad’s prosecution after Prime Minister Zia, in her campaign,
6 elevated the issue of bringing General Ershad to justice to the
7 political stage. Rana Manzur testified that she began receiving
8 threatening phone calls and visits from the anti-corruption police
9 after she began pursuing General Ershad’s prosecution, and that
10 she was accused of “trying to conflict with” the government by the
11 DGFI for not attending a military ceremony. The IJ asserted that
12 the attempt to prosecute a public official, standing alone, is not
13 sufficient to establish the expression of a political opinion.5
14 The IJ also noted parenthetically that purely personal retribution
15 is not persecution on account of political opinion.
16 This Court has rejected an “impoverished view of what
17 political opinions are, especially in a country . . . where
18 certain democratic rights have only a tenuous hold.” Yueqing
19 Zhang v. Gonzales, 426 F.3d 540, 546 (2d Cir. 2005) (quoting
20 Osorio, 18 F.3d at 1030). In cases of opposition to government
21 corruption, this Court has stated that the central questions for
5
The IJ’s statement that the attempt to prosecute a public
official “standing alone” did not establish the expression of a
political opinion is a further illustration of the IJ’s general failure
to evaluate adequately the petitioners’ claims in light of the entire
evidentiary context in which they arose.
25
1 determining the nature of an applicant’s actions, which the IJ
2 neither discussed nor recognized, are “whether the applicant’s
3 actions were directed toward a governing institution, or only
4 against individuals whose corruption was aberrational” and
5 “whether the persecutor was attempting to suppress a challenge to
6 the governing institution.” Id. at 548 (internal quotation marks
7 and citation omitted); see also Hasan v. Ashcroft, 380 F.3d 1114,
8 1120 (9th Cir. 2004); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th
9 Cir. 2004); Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir. 2000)
10 (finding that when alleged corruption which the petitioner exposed
11 is inextricably intertwined with government operation, the
12 exposure and prosecution of such abuse is necessarily political);
13 Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1245-46 (9th Cir. 1999);
14 Gomez-Saballos v. I.N.S., 79 F.3d 912, 917 (9th Cir. 1996)
15 (finding that personal retaliation against a vocal political
16 opponent does not render the opposition any less political, or the
17 opponent any less deserving of asylum). In addition, this Court
18 has stated that the determination of whether a petitioner’s
19 persecutors were motivated by the petitioner’s opposition to the
20 government “is a complex and contextual factual inquiry.” Yueqing
21 Zhang, 426 F.3d at 548. Because the IJ did not engage in this
22 inquiry regarding the nature of Rana Manzur’s actions or the
23 motivation of her persecutors, the proper course is to remand for
26
1 further consideration of whether Rana Manzur made the requisite
2 showing.
3 The IJ cited the Supreme Court’s opinion in I.N.S. v. Elias-
4 Zacarias, 502 U.S. 478 (1992), for the proposition that
5 “[p]ersecution on account of political opinion means persecution
6 on account of the victim’s not the persecutor’s political
7 opinion.” While that is a fair description of Elias-Zacarias, the
8 citation misapprehends Rana Manzur’s claim. Rana Manzur claims
9 that she was persecuted precisely because of her political opinion
10 that her husband had been the victim of assassination engineered
11 by General Ershad and that, consequently, General Ershad should be
12 prosecuted. She alleges that the threats were directed against
13 her precisely because of her views, not the persecutors’. The
14 IJ’s analysis of this claim is, therefore, deficient.
15 The IJ also did not explain why, on these facts, the
16 petitioners have not shown that the threatening calls that Rana
17 Manzur received were motivated--at least in part--by an imputed
18 political opinion. This Court has stated that, under a theory of
19 imputed political opinion, an applicant may establish persecution
20 “on account of” a protected ground by showing that the persecutors
21 perceived the applicant to have a political opinion and acted
22 because of it. See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d
23 Cir. 2005).
24
27
1 4.
2 Finally, the IJ’s analysis of the petitioners’ economic
3 persecution claim is insufficient to determine whether the correct
4 legal standard was applied. See Beskovic, 467 F.3d at 224. The
5 IJ rejected petitioners’ claim of economic persecution because he
6 concluded that they “failed to establish . . . that they were not
7 able to support themselves,” citing as support several cases that
8 do not articulate a clear standard for economic persecution. This
9 Court has previously recognized that the standard for economic
10 persecution claims is unclear, and remanded to the BIA for
11 clarification. See Mirzoyan, 457 F.3d at 223-24.
12 The BIA’s recent decision, In re T-Z-, 24 I. & N. Dec. 163
13 (BIA May 9, 2007), responds to this Court’s request in Mirzoyan
14 and articulates the BIA’s standard for evaluating nonphysical
15 harm, including economic harm. Based on this intervening
16 decision, and because we are unable to determine the standard that
17 the IJ applied to petitioners’ claim of economic persecution, the
18 proper course is to remand to the BIA for further consideration in
19 light of In re T-Z-.
20
21 IV.
22 For all of these reasons, the Court concludes that the IJ
23 erred in considering the petitioners’ claim of past persecution.
24 Assuming that the petitioners can establish their claim of past
28
1 persecution, the Government on remand will have to overcome a
2 rebuttable presumption that the petitioners have a well-founded
3 fear of future persecution.6 Therefore, because we cannot
4 confidently predict whether, under these circumstances and absent
5 the IJ’s errors, the BIA would adhere to its prior decision
6
The IJ did not discuss the issue of whether the petitioners have
a well-founded fear of future persecution other than to conclude that
the petitioners had “not established” that “any harm . . . feared was on
account of any characteristic enumerated in the Act.” The IJ never
analyzed or even mentioned whether the Government offered sufficient
evidence to overcome any presumption that the petitioners had a well-
founded fear of future persecution as a result of their past
persecution.
The IJ did, however, cite to a July 27, 1998 letter from the State
Department Office of Asylum Affairs, submitted in response to the IJ’s
request for an advisory opinion on Rana Manzur’s asylum application.
Letter from William M. Bartlett, Director, Office of Asylum Affairs,
Bureau of Democracy, Human Rights and Labor, United States Department of
State, to Executive Office of Immigration Review, Office of the
Immigration Judge (July 27, 1998) [hereinafter Letter]. The letter
summarizes some of the petitioner’s claims and then concludes that “[i]t
seems unlikely that the applicant would face any mistreatment in
Bangladesh if she were to return to that country.” Id. at 2.
It is not clear to what extent the IJ relied on this letter in
concluding that the petitioners failed to establish their claim of past
persecution, and in any event, the letter cannot cure the IJ’s failure
to analyze adequately the petitioners’ claim of past persecution.
Moreover, it is unclear what weight the IJ gave to the letter in
assessing whether the Manzurs have a well-founded fear of future
persecution; we reject the Government’s contention that its position in
the letter is in any way dispositive of the issue of future persecution,
particularly given the IJ’s failure to assess the applicable burden of
proof. The letter is no substitute for the IJ considering the full
record of testimony and evidence in this case, cf. Tian-Yong Chen v.
U.S. I.N.S., 359 F.3d 121, 130 (2d Cir. 2004) (cautioning against
excessive reliance on State Department country reports), particularly
when the letter relies solely on analysis of country conditions and the
written asylum application and disclaims any independent investigation
into the pattern of events that petitioners allege constitute past
persecution. See Letter at 2. The letter in this case also contains
certain factual misstatements. See id. at 1 (claiming that petitioner
“does not claim to have been . . . detained” despite the Manzurs’ claim
of month-long confinement); id. (claiming that President Zia was the
father, rather than the husband, of Prime Minister Khaleda Zia).
29
1 denying the petitioners’ applications for asylum, we remand. See
2 Uwais, 478 F.3d at 519 n.1; Beskovic, 467 F.3d at 227;
3 Because the errors in the IJ’s analysis of the petitioners’
4 claim for asylum bear on the petitioners’ eligibility for
5 withholding of deportation (or removal) under the INA and relief
6 under the CAT, we remand these latter claims as well. See, e.g.,
7 Abankwah v. I.N.S., 185 F.3d 18, 26 (2d Cir. 1999).
8
9 CONCLUSION
10 For all of the reasons discussed above, the petition for
11 review is GRANTED. The decision of the BIA is VACATED, and the
12 case is REMANDED for further proceedings consistent with this
13 opinion.
30