16-1161
Mann v. Sessions
BIA
LaForest, IJ
A200 289 964
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 6th day
4 of September, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROSEMARY S. POOLER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JAGWINDER SINGH MANN, AKA JAGWINDER
14 SINGH,
15 Petitioner,
16
17 v. 16-1161
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jaspreet Singh, Jackson Heights, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Mary Jane
28 Candaux, Assistant Director; Matthew
29 A. Connelly, Trial Attorney, Office of
30 Immigration Litigation, United States
31 Department of Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is GRANTED, the
4 decision of the BIA is VACATED, and the case is REMANDED FOR FURTHER
5 CONSIDERATION.
6 Petitioner Jagwinder Singh Mann, a native and citizen of India,
7 seeks review of a March 15, 2016, decision of the BIA affirming a
8 January 6, 2015, decision of an Immigration Judge (“IJ”) denying
9 Mann’s application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Jagwinder Singh
11 Mann, No. A200 289 964 (B.I.A. Mar. 15, 2016), aff’g No. A200 289
12 964 (Immig. Ct. N.Y. City Jan. 6, 2015). We assume the parties’
13 familiarity with the underlying facts and procedural history in this
14 case.
15 We have reviewed both the IJ’s and the BIA’s opinions “for the
16 sake of completeness” because the BIA did not explicitly adopt nor
17 diverge from the IJ’s reasoning in full. Wangchuck v. Dep’t of
18 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We further review
19 the BIA's factual findings for substantial evidence, Ahmed v. Lynch,
20 804 F.3d 237, 240 (2d Cir. 2015), its interpretation of immigration
21 statutes with Chevron deference, see INS v. Aguirre–Aguirre, 526 U.S.
22 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron
23 U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104
24 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), and its interpretations of
2
1 immigration regulations with “substantial deference,” Joaquin–
2 Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006) (internal
3 quotation marks and citations omitted). However, “when the situation
4 presented is the BIA's application of legal principles to undisputed
5 facts, rather than its underlying determination of those facts or
6 its interpretation of its governing statutes, our review is de novo.”
7 Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal
8 quotation marks and citation omitted; alteration incorporated). See
9 8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder, 575 F.3d
10 193, 196 (2d Cir. 2009).
11 I. Discussion
12 An applicant for asylum may demonstrate eligibility either
13 through showing that he has suffered past persecution on account of
14 “race, religion, nationality, membership in a particular social
15 group, or political opinion,” or a “well-founded fear of future
16 persecution” on these protected grounds. 8 U.S.C. § 1101(a)(42);
17 Poradisova v. Gonzalez, 420 F.3d 70, 77-78 (2d Cir. 2005). We are
18 inclined to agree with the IJ’s conclusion that Mann failed to
19 demonstrate a well-founded fear of future persecution. But, because
20 past persecution was not adequately ruled out by the IJ or BIA below,
21 we remand for reconsideration of Mann’s suit.
22 Were the only grounds available to Mann those of future
23 persecution, we would be inclined to affirm. But however unsuccessful
24 Mann’s case may be with respect to future persecution, without a full
3
1 consideration of the first prong of “persecution”, that is, of “past
2 persecution”, the IJ’s analysis is incomplete, and thus the result
3 in this suit invalid.
4 In evaluating a past persecution claim, the agency must consider
5 the harm suffered in the aggregate. Poradisova, 420 F.3d at 79-80.
6 Past persecution can be established by harm other than threats to
7 life or freedom, including “non-life-threatening violence and
8 physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.
9 2006). And, while the harm must be severe, rising above “mere
10 harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341
11 (2d Cir. 2006), it is sufficient, in order to show past persecution,
12 that the applicant was “within the zone of risk when [a] family member
13 was harmed, and suffered some continuing hardship after the
14 incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).
15 Mann’s claim of past persecution rested on the following
16 incidents: Mann and his brother were longtime members of the
17 Congress Party. Members of opposition parties, the Akali Dal Party
18 and the Bharatiya Janata Party (“BJP”) had successively solicited
19 Mann and his brother’s departure from the Congress Party to join their
20 parties. After Mann and his brother refused to depart the Congress
21 Party, the opposition party members stopped Mann and his brother in
22 the street and assaulted Mann’s brother. At the time of the assault,
23 both Mann and his brother were in a car in the middle of doing
24 political work. Mann managed to escape the car and their attackers.
4
1 His brother, however, was severely injured: he both lost a leg and
2 suffered mental incapacitation. Subsequently, Mann fled his
3 hometown, residing in Chandigarh, a neighboring city, for two months,
4 and, after that, moved to Delhi. During that time, his family was
5 responsible for caring for his brother’s permanent disabilities and
6 injuries.
7 Upon review, the IJ found the fact that Mann himself had not
8 suffered physical harm to be dispositive of his past persecution
9 claim. Yet physical harm is not always needed for a showing of past
10 persecution. And, it is not required in an analysis undertaken under
11 Tao Jiang’s “zone of risk” and “continuing hardship” tests.
12 Because (i) the IJ’s analysis does not directly address the
13 question of whether Mann was sufficiently within “the zone of risk”
14 when a family member (here, his brother) was seriously harmed, and,
15 (ii) it is certainly conceivable that on direct reconsideration
16 Mann’s flight from his hometown and help to his family in caring for
17 his brother constitutes the sufferance of “some continuing
18 hardship,” we hereby GRANT Mann’s petition for review, and VACATE
19 the decision of the BIA. We REMAND Mann’s claim of persecution to
20 the BIA for further consideration in light of Tao Jiang’s “zone of
21 risk” and “continuing hardship” requirements.
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
5