Passi v. Mukasey

07-2102-ag
Passi v. Mukasey

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2007
Argued: April 23, 2008 Decided: July 23, 2008

Docket No. 07-2102-ag
____________________

SYLVESTRE PASSI,

Petitioner,

—v.—

MICHAEL B. MUKASEY, Attorney General,*

Respondent.
____________________

Before:

JACOBS , Chief Judge, KEARSE , and KATZMANN ,
Circuit Judges.

Petition for review of an April 19, 2007 order of the Board of Immigration Appeals affirming
the Immigration Judge’s denial of petitioner’s application for asylum. The petition is granted, and
the case is remanded. Chief Judge Jacobs concurs in a separate opinion.
____________________

MATTHEW J. HARRIS (Eric A. Wuestman, of counsel)
Brooklyn, N.Y., for Petitioner.

LINDSAY B. GLAUNER, Trial Attorney, Office of
Immigration Litigation (Leslie McKay, Peter D. Keisler, of
counsel) U.S. Department of Justice, Washington, D.C., for
Respondent.
____________________

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B.
Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the
respondent in this case.
KATZMANN , Circuit Judge:

Sylvestre Passi petitions for review of the Board of Immigration Appeals’ (BIA) April 19,

2007 order affirming Immigration Judge (IJ) Elizabeth A. Lamb’s denial of his application for

asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The

BIA assumed that Passi had testified credibly about an incident in which he was beaten into

unconsciousness during a military raid, but concluded that country conditions had changed such

that he no longer had an objectively reasonable fear of persecution. Because we find that the BIA

could not have conducted an individualized analysis of how changed country conditions would

affect someone in Passi’s situation, we grant the petition, vacate the BIA’s order, and remand for

further proceedings.

I

Sylvestre Passi is a native and citizen of the Republic of Congo. He claims to have

entered the United States on July 23, 2001. In May 2002, he filed an application for asylum,

withholding of removal, and CAT relief, and was subsequently placed in removal proceedings.

At a merits hearing in July 2005, Passi testified that in November 1997, members of the

“Cobra” militia loyal to Congo’s current president Denis Sassou-Nguesso entered his home in

Brazzaville, shot and killed his father, and beat him into unconsciousness. He claims that he and

his family were attacked because of their Lari ethnicity and their perceived support for Sassou-

Nguesso’s predecessor and rival, Pascal Lissouba; Passi’s father had been a police officer under

Lissouba’s regime. After the attack, Passi and his family fled to Gabon and from there, Passi

eventually came to the United States. The IJ admitted several documents into evidence including

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the 1997, 2003, and 2004 United States Department of State Country Reports on Human Rights

Practices for the Republic of Congo, a 1999 Amnesty International report on Congo, and several

news articles from 2002 and 2003.

In an oral decision, the IJ pretermitted Passi’s asylum application finding that he had not

met his burden of proving that he applied for asylum within one year of his arrival in the United

States as required by 8 U.S.C. § 1158(a)(2)(B). In re Sylvestre Passi, No. A 95 468 091 (Immig.

Ct. N.Y. City Aug. 29, 2005). The IJ found that Passi was not a “totally credible witness.” She

then went on to consider whether Passi was eligible for withholding of removal, noting that he

faced the higher burden of proof of showing that it was more likely than not that he would be

persecuted. The IJ rejected Passi’s withholding of removal claim stating:

I’ve read the background materials submitted including the State Department
materials. The State Department talked about the tribe to which he says he
belongs and I believe he says it’s in the southern part but there is nothing in the
record that says that his tribe is signaled [sic] out for any problems now,
especially now. The times have changed, the political situation has changed and I
have no reason to believe that he would be persecuted were he to return to his
country.

Id. The IJ also rejected his CAT claim.

Passi appealed only the denial of his asylum claim to the BIA. The BIA affirmed the IJ’s

denial of asylum, but on different grounds. In re Sylvestre Passi, No. A 95 468 091 (B.I.A. Apr.

19, 2007). The BIA assumed that his asylum application was timely filed and that he had

testified credibly about his past persecution, but explained in a short per curiam decision:

[W]e concur with the Immigration Judge’s ultimate decision that conditions in the
Republic of Congo have changed to the extent that there is no evidence in the
record that [Passi] would face persecution there. In that regard, we find no
indication in the most recent objective evidence of record that [Passi,] who was
beaten into unconsciousness during a 1997 raid by Cobra militia, presently has an

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 objectively reasonable fear of persecution in the Republic of Congo based on any
past persecution. Further, we find no evidence that [Passi] has an independent
well-founded fear of future persecution by Cobra militiamen on account of his
Lari ethnicity, his imputed political support of former President Pascal Lissouba,
or any other protected ground under [8 U.S.C. § 1158], if he is removed to the
Republic of Congo.

Id. (citations omitted).

Passi timely petitioned this Court for review, again only challenging the denial of his

asylum claim.1

II

When the BIA affirms an IJ’s decision on different grounds, we review only the BIA’s

decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). As we have explained

on several occasions, however, when the BIA affirms the IJ’s decision in some respects, but not

others, we may also review the IJ’s decision, although our review is confined to those reasons for

denying relief that were adopted by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426

F.3d 520, 522 (2d Cir. 2005). See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.

2006). In this case, the BIA assumed that Passi’s asylum application was timely filed and that he

had testified credibly, so we may not rest on the IJ’s adverse credibility finding or her ruling

pretermitting Passi’s asylum claim. See Yan Chen, 417 F.3d at 271. Instead the BIA adopted the

IJ’s reason for denying Passi’s withholding of removal claim—that country conditions had

changed—to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it

informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the

1
Because Passi did not raise his withholding of removal and CAT claims either before the
BIA or in this Court, we do not consider them.

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BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s

decision.

We review the agency’s factual findings under the substantial evidence standard treating

them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007). We

will, however, vacate and remand for new findings if the agency’s reasoning or its factfinding

process was sufficiently flawed, for example, where the agency’s determination was “based on an

inaccurate perception of the record, omitting potentially significant facts.” Tambadou v.

Gonzales, 446 F.3d 298, 302 (2d Cir. 2006) (internal quotation marks omitted); see also Cao He

Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005). We review de novo questions of

law and the application of law to fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d

Cir. 2003).

The burden of proving eligibility for asylum rests on the applicant. 8 C.F.R. § 208.13(a).

An applicant may qualify for asylum either because he has suffered past persecution or because

he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). A fear of persecution

may be “well-founded even if there is only a slight, though discernible, chance of persecution.”

Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421,

431 (1987)). This standard is considerably easier to meet than the standard for withholding of

removal, which requires the applicant to establish that it is more likely than not that his “life or

freedom would be threatened” on account of a protected ground. See 8 C.F.R. § 208.16(b);

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). Where, as the BIA assumed here,

an asylum applicant has demonstrated that he suffered past persecution, a presumption arises that

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he has a well-founded fear of persecution. 8 C.F.R. § 208.13(b)(1). While past persecution is

sufficient to establish eligibility for asylum, regulations nonetheless direct the IJs to exercise their

discretion to deny asylum in certain situations. 8 C.F.R. § 208.13(b)(1)(i); Tambadou, 446 F.3d

at 301-02. One such situation is when the government proves by a preponderance of the

evidence that “[t]here has been a fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution in the applicant’s country of nationality,” 8 C.F.R.

§ 208.13(b)(1)(i)(A), thus rebutting the presumption that arose upon the initial showing of past

persecution. See Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir. 2007).

III

This petition calls on us to decide whether substantial evidence supports the BIA’s

finding that conditions in Congo have fundamentally changed such that Passi no longer has a

reasonable fear of persecution. To support its two-sentence conclusion that “conditions in the

Republic of Congo have changed to the extent that there is no evidence in the record that [Passi]

would face persecution there,” the BIA cited only the 2004 State Department country report.

While the State Department country reports often provide “a useful and informative overview of

conditions in the applicant’s home country,” we have instructed the immigration courts “not to

place excessive reliance” on them. Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004). In

Tambadou v. Gonzales, we explained that the BIA cannot rely in a conclusory fashion on

information in a State Department country report about “general changes in the country.” 446

F.3d at 303 (internal quotation marks omitted). Instead, we explained, the BIA must “use the

information in the [r]eport in a case-specific manner and supplement it with further analysis,”

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that is, the BIA must “conduct an individualized analysis of how changed conditions would

affect the specific petitioner’s situation.” Id. (internal quotation marks and alteration omitted).

While the 2004 country report noted significant improvements in conditions in

Congo—the civil war that had engulfed the country in the late 1990s had come to a halt and there

were no recent reports of politically motivated disappearances or political killings by the

Congolese government or its agents—the report does not support the BIA’s inference that those

general improvements rebut the presumption of a well founded fear of persecution for someone

in Passi’s situation—a Lari who had been branded a supporter of former president Lissouba.

Moreover, as in Tambadou, 446 F.3d at 304, the BIA ignored “significant information favorable

to” Passi in the country report as well as several news articles submitted by Passi describing

continued unrest in his home city of Brazzaville and the surrounding Pool region. Most notably,

the 2004 country report confirms that Sassou-Nguesso—whose Cobra militia beat Passi into

unconsciousness and killed his father—is now firmly in control of Congo and his

“[g]overnment’s human rights record remains poor.”2 The report noted that although there were

“some” improvements, “serious problems remained,” particularly in Passi’s home region where

there are continued clashes between the mainly Lari “Ninja” rebels and Sassou-Nguesso’s

government forces. The 2004 country report stated that “[u]ncontrolled and unidentified armed

elements remain active in the Pool region, despite an ongoing demobilization and reintegration

program following the March 2003 Peace Accord between the Government and [the] Ninja

2
We do not hold today that the agency could never find that the presumption of a well
founded fear of persecution has been rebutted while the regime responsible for the past
persecution remains in power, but given the explicitly equivocal nature of the evidence relied on
by the IJ and BIA in this case, such a finding is certainly not supported by substantial evidence
here.

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rebels,” and noted continued violence and harassment by either “uncontrolled government

security forces or former Ninjas.” In December 2003, uncontrolled Republican Guard

government forces attacked Ninja elements in Brazzaville resulting in restrictions on civilian

movement, and there was “renewed harassment and intimidation by uncontrolled and

unidentified armed elements.” While there were fewer reports that government forces killed

civilians in the Pool region than in previous years, the 2004 country report stated that members of

the security forces “committed human rights abuses” and were “responsible for beatings, physical

abuse of detainees, rapes, arbitrary arrest and detention, looting, solicitation of bribes and theft.”

The report also noted that “[d]iscrimination on the basis of ethnic regions remained a problem.”

The news articles Passi submitted describe the deaths of civilians at the hands of either the

military or a resurgent militia in a suburb of his home city Brazzaville, the displacement of

50,000 people in Brazzaville, and clashes between government troops and rebel fighters in

Brazzaville and in the Pool region surrounding the city.

There is no indication from the BIA’s decision that it considered any of this evidence. Of

course, Tambadou does not necessarily require the BIA to make particularized, on-record

findings whenever it finds a change in country conditions. See, e.g., Hoxhallari v. Gonzales, 468

F.3d 179, 187 (2d Cir. 2006) (per curiam). But here, the BIA improperly inferred that the general

improvements in conditions in Congo rebutted the presumption that someone in Passi’s

situation—a Lari who had been branded a supporter of former president Lissouba—would

continue to have a well founded fear of persecution. Importantly, Passi was from Brazzaville, in

the Pool region, where the ongoing ethnic and political violence appears the most severe. Since

the agency made no finding that Passi could relocate out of that troubled area, the regulatory

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presumption that such “internal relocation would not be reasonable” remains unrebutted. See 8

C.F.R. § 208.13(b)(3)(ii). As in Tambadou, it appears that the BIA did not consider the

“significant distinction between a drop in abuses and an end to abuses.” 446 F.3d at 304.

The government relies on Hoxhallari v. Gonzales, in which we held that where “changed

conditions evidently prevail in a country that is the subject of an appreciable proportion of

asylum claims (and, as a result, we can safely assume that IJs have developed considerable

expertise related to that country’s current conditions), an immigration judge need not enter

specific findings premised on record evidence when making a finding of changed country

conditions.” 468 F.3d at 187. Hoxhallari was a native of Albania who allegedly had been

persecuted for his support of the Democratic Party by the Communist regime prior to its fall from

power in 1991, but his family had been living in Albania unmolested since 1991. Id. at 182-83.

Although we noted that the IJ’s discussion of changed country conditions was perfunctory, we

were willing to accept that the IJ could rely on his specialized knowledge of “salient historical

events” in countries from which many applicants seek asylum. Id. at 186-87. Thus the IJ could

recognize that “Albania is no longer a Communist tyranny run by a psychopath,” without

“robotic incantations” for the record. Id. at 187 (internal quotation marks omitted). In this case,

by contrast, the change in country conditions in Congo was not nearly as dramatic as the fall of

the Communist regime in Albania (in fact, the president responsible for Passi’s past persecution

is still in power), and there is no indication that Congo is the source of an appreciable proportion

of asylum claims such that we could be confident in the agency’s familiarity with the country.

See Souleymane Niang v. Mukasey, 511 F.3d 138, 149 (2d Cir. 2007) (“Hoxhallari stands for the

‘uncontroversial propositions that [i] this Court is not ignorant of indisputable historical events

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(such as the partition of India, the break-up of the Ottoman Empire, or the fall of Communist

regimes in the Balkans), and [ii] we will not assume that the agency suffers from such

ignorance.’” (quoting Xiao Xing Ni v. Gonzales, 494 F.3d 260, 272 (2d Cir. 2007)). Thus we

cannot approve of such cursory treatment in this case. See id.; Tambadou, 446 F.3d at 303-04.

IV

The BIA improperly inferred that Passi no longer has a well founded fear of persecution

because its inference was based entirely on a country report that details general improvements,

while indicating that Passi’s hometown (which the agency was required by regulation to presume

is unreasonable for him to leave) is still troubled by ethnic and political conflict. We remand for

the agency to conduct an individualized analysis of whether the changes in conditions in Congo

were so fundamental that they are sufficient to rebut the presumption that Passi’s fear of

persecution is well founded. Accordingly we GRANT the petition for review, VACATE the

decision of the BIA, and REMAND the case for further proceedings consistent with this opinion.

Passi’s motion for a stay of removal pending the outcome of this appeal is DISMISSED as moot.

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DENNIS JACOBS, Chief Judge, concurring:

I concur with Judge Katzmann’s opinion because it is an

appropriate application of Tambadou v. Gonzales, 446 F.3d

298 (2d Cir. 2006). See United States v. Brutus, 505 F.3d

80, 87 n.5 (2d Cir. 2007) (“[W]e are bound by the decisions

of prior panels until such time as they are overruled either

by an en banc panel of our Court or by the Supreme Court.”)

(internal quotation marks and citation omitted). I write

separately to emphasize that Tambadou speaks to

circumstances rarely presented to this Court, and to warn

against overreading our rather limited holding in that case.

Tambadou contains wording that is sound in its context,

and should not be misconstrued. That case concerned an

asylum applicant who had been expelled from his native

Mauritania to Senegal because of his ethnicity. The BIA

denied asylum, concluding that country conditions in

Mauritania had changed such that Tambadou no longer had a

well founded fear of persecution there. “The BIA based its

conclusion solely on information selectively extracted from

the Department of State’s 1996 Country Report on conditions

in Mauritania.” Tambadou, 446 F.3d at 302. The report--

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which was six years out of date when the BIA considered

Tambadou’s case--“reported that the Mauritanian government

was cooperating with humanitarian groups ‘to assist

returnees from the refugee camps in Senegal’ who were

expelled between 1989 and 1991.” Id. at 300. Thus, “[t]he

BIA generally stated that refugees were reportedly being

repatriated over a number of years, and concluded that this

analysis was sufficient to deny asylum.” Id. at 303.

The BIA, failing to notice Tambadou’s testimony that

many of those who were repatriated had subsequently been

killed, erroneously ruled that “because Petitioner did not

offer contradictory evidence, the State Department profile

was entitled to deference.” Id.

We vacated the BIA’s finding of changed country

conditions noting that (1) “not only was there contradictory

testimony that the BIA ignored, but it failed to use the

information in the Report in a case-specific manner and

supplement it with further analysis,” id.; and (2) “the BIA

deferred to the Report in a casual, conclusory fashion,

ignored the contradictory information that Tambadou

presented, and then failed to make the required

individualized analysis. The BIA also ignored significant

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information favorable to Tambadou in the Report,” id. at

304.

The reference to the need for “individualized analysis”

is context specific. When yanked out of its context, it is

easily subject to at least three misreadings.

First, to the extent that an asylum applicant’s

personal history and characteristics do not constitute

protected grounds, Tambadou does not require the agency to

consider those facts in determining whether country

conditions have changed. Such a requirement would gut the

usefulness of country reports as an indicator that country

conditions have changed, and would transcend the purposes of

the asylum laws.

Second, Tambadou does not prevent the agency from

resting its finding of changed country conditions solely on

country reports even if other record evidence conflicts with

it.

Third, Tambadou does not require that the agency

perform and enunciate any kind of specific, on-record

“analysis” justifying its findings that country conditions

have changed. “[A]dministrative findings of fact are

conclusive unless any reasonable adjudicator would be

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compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B). The agency’s findings with respect to

changed country conditions are therefore upheld when record

evidence supports those determinations. To survive our

review for substantial evidence, the agency need not engage

in special on-record recitation of facts, or perform any

ceremony or incantation.

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