08-0034-ag
Sy v. Holder
BIA
Abrams, IJ
A098 580 859
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of March, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_______________________________________
NDEYE HAMATH SY,
Petitioner,
v. 08-0034-ag
NAC
ERIC H. HOLDER, JR., * UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Ephraim Tahir Mella, Philadelphia,
PA.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Gregory G. Katsas, Acting Assistant
Attorney General; Michelle Gorden
Latour, Assistant Director; Matt A.
Crapo, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is GRANTED.
Ndeye Hamath Sy, a native and citizen of Mauritania,
seeks review of a November 29, 2007, order of the BIA
affirming the September 15, 2005, decision of Immigration
Judge (“IJ”) Steven Abrams, which denied her application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Ndeye Hamath Sy,
No. A098 580 859 (B.I.A. Nov. 29, 2007), aff’g No. A098 580
859 (Immig. Ct. N.Y. City Sept. 15, 2005). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See
Secaida-Rosales v. I.N.S., 331 F.3d 297, 308 (2d Cir.2003),
overruled on other grounds by Xiu Xia Lin v. Mukasey, 534
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F.3d 162 (2d Cir. 2008). Because neither the IJ nor the BIA
made an explicit credibility determination, we assume Sy’s
credibility for purposes of our analysis. See Yan Chen v.
Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of
Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
Sy argues that the agency erred in finding that she
failed to demonstrate that the mistreatment she suffered
bore a sufficient nexus to a protected ground. See 8 U.S.C.
§ 1101(a)(42). In support of that argument, she cites to
country conditions evidence in the record, including the
2004 State Department Country Report on Mauritania, which
indicates that racial tension and discrimination between
White Moors and Black Africans continues to exist in
Mauritania and that, although slavery is officially
abolished, the practice of involuntary servitude occurs with
the acquiescence of the government. Against that backdrop,
Sy claimed that after she, a black woman, married a white
man, his family treated her as a slave because of her race.
She claimed that the situation grew worse when her husband
left for the United States, and culminated when her mother-
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in-law falsely accused her of assaulting her and stealing
her jewelry. As a result of those false charges, Sy was
arrested and detained for ten days. During her detention,
police beat her, using racial epithets as they did so. Sy
further claimed that police put cigarettes out on her lips
and tongue. Despite these claims, the IJ found that this
was simply a family dispute, unconnected to race, and that
Sy’s arrest and her subsequent mistreatment by the police
were purely the result of the charges that Sy’s mother-in-
law had filed. The BIA agreed, finding that even if the
treatment Sy endured amounted to persecution, there was no
evidence that it was on account of a protected ground.
Our prior precedent does not support the agency’s
conclusions. Both this Court and the BIA have recognized
that, because “‘prosecution for an offense may be a pretext
for punishing an individual for his political opinion,’”
“‘a combination of . . . motives’ [can] suffice” to
establish persecution due to a protected ground. Vumi v.
Gonzales, 502 F.3d 150, 157 (2d. Cir. 2007) (quoting Matter
of S-P-, 21 I. & N. Dec. 486, 494 (BIA 1996)). Here, Sy’s
testimony strongly indicates that her persecutors were
motivated, at least in part, by racial animus. See Matter
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of J-B-N- & S-M-, 24 I. & N. Dec. 208, 211 (BIA 2007)
(recognizing that, because “persecutors may have differing
motives for engaging in acts of persecution,” an applicant
need only produce evidence “from which it is reasonable to
believe that the harm was . . . motivated in part by an
actual or imputed protected ground.”) (alteration and
internal quotation marks omitted).
More significantly, the agency's finding that Sy's
mistreatment was solely the consequence of a criminal
investigation failed to properly take account of the record
evidence indicating that racial tension is prevalent in
Mauritanian society and that the government has largely
failed to eradicate racially-based persecution. See Vumi,
502 F.3d at 156-59 (rejecting the agency’s finding that
petitioner’s persecution bore no nexus to a protected ground
when the agency’s analysis failed to take into account the
overall political context in which the persecution took
place); Osorio v. I.N.S., 18 F.3d 1017, 1029 (2d Cir. 1994)
(“[B]y drawing the conclusion that the dispute between
Osorio and Guatemala was economic and not political, the BIA
ignored the political context of the dispute.”). Therefore,
we conclude that remand is necessary for the agency to do so
in the first instance. See Vumi, 502 F.3d at 159; see also
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Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006).
Finally, Sy does not meaningfully challenge the
agency’s denial of her CAT claim before this Court, waiving
that argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
541 n.1 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
GRANTED and the case REMANDED for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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