Menghesha v. Gonzales

WILLIAMS, Circuit Judge,

dissenting:

I would deny Menghesha’s petition for review and affirm the BIA. While I agree with the majority that the INA contains a “mixed-motive” standard and that we must remand the case if “the IJ misapplied the law,” ante at 203, I believe the IJ properly applied the INA in determining that Menghesha failed to qualify for asylum. I view this as a typical fact-driven asylum case, where the IJ’s factual determinations should be given great deference. For the reasons explained herein, I would respect Congress’s will, follow Supreme Court precedent, and deny the petition for review. See 8 U.S.C.A. § 1158(b)(1)(A) (West 2005) (placing asylum decisions within the purview of the Secretary of Homeland Security and the Attorney General); INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (recognizing “that judicial deference to the Executive Branch is especially appropriate in the immigration context”).

I.

My colleagues’ decision is based on their conclusion that the IJ failed to apply “the correct mixed-motive standard.” Ante at 207. Respectfully, I disagree. In order to qualify as a refugee, Menghesha must show “a well founded fear of persecution *208on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.A. § 1101(a)(42) (West 2005) (emphasis added). In this case, Menghesha argues that he fears persecution on account of his political opinion. The phrase “on account of’ requires that Menghesha show that persecution because of his political opinion was a motivating force on the Ethiopian government, although not necessarily the sole motivating force. Thus, my colleagues are correct that Menghesha need only show that the Ethiopian government was motivated to persecute him in part because of his political opinion.

Where I part ways with the majority, however, is with its unsupported statement that the IJ required Menghesha to show that the government planned to persecute Menghesha based solely on his political opinion. Ante at 207. The IJ’s oral opinion never stated that Menghesha must show that he fears persecution based solely on his political opinion. The IJ never stated that he was rejecting Menghesha’s mixed motive argument as a matter of law. Menghesha, in fact, did not specifically make a “mixed motive” argument below.

As the majority properly recognizes, however, a petitioner need not make a “mixed motive” argument because the legal standard articulated in the statute itself allows for the possibility of multiple motives. Thus, as was pointed out at oral argument, there is “no other kind of case” than a mixed motive case. Accordingly, Menghesha only needed to argue that he fell within the ambit of the statute, which is understood to mean that he was required to show, inter alia, that the government sought to persecute him at least in part because of a protected ground. Of course, in recognizing that Menghesha did not have to argue this point below because it is “merely” the “proper legal standard,” ante at 206 n. 3, it seems odd to require more of the IJ who elucidated the proper legal standard but simply did not expressly use the term “mixed motive;” if Menghe-sha need only argue that he falls within the INA’s ambit, we should not require the IJ to say anymore than that Menghesha falls outside of that ambit. Indeed, the IJ correctly stated the applicable law. (See J.A. at 222-23 (“[Menghesha] must meet the definition of a refugee which requires him to show ... that a reasonable person in his circumstances would fear persecution on account of one or more of the five protected enumerated grounds.”).)

Moreover, the IJ found that Menghesha failed to show that it was more likely than not that he would be subject to persecution on account of his political opinion. The IJ made a specific finding of fact that Menghesha ‘failed, to sustain his burden of proof and persuasion ... that there is a reasonable possibility of his persecution in the future ... on account of one or more of the five protected enumerated grounds.” (J.A. at 223 (emphasis added).) See, e.g., INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (“Whether an asylum applicant has demonstrated past persecution or a well-founded fear of future persecution is a factual determination reviewed under the substantial evidence standard.”); Jahed v. INS, 356 F.3d 991, 1003 (9th Cir.2004) (Kozinski, J., dissenting) (“Whether persecution is ‘on account of a petitioner’s political opinion is a question of fact; it turns on evidence about the persecutor’s motives.”). In other words, in direct response to Menghesha’s claimed fear of persecution based on his political beliefs, the IJ made an explicit finding of fact that Menghesha failed to show a fear of persecution based on his political beliefs. See, e.g., Bakhtriger v. Elwood, 360 F.3d 414, 425 (3d Cir.2004) (“The fact that there are *209legal principles that govern these matters ... does not convert every question of fact or discretion into a question of law.”)- We are thus left with a situation where the IJ found that Menghesha did not suffer a fear of persecution based on an enumerated ground and a majority opinion that disagrees with that factual finding.

To be sure, while applying the applicable law, the IJ made a further finding that Menghesha only “fears prosecution for his criminal act of obstruction of justice.” (J.A. at 226.) That fear-of-criminal-prosecution finding, combined with the IJ’s finding that Menghesha failed to show a reasonable possibility of future political persecution, leads ineluctably to the conclusion that the IJ found that Menghesha had a fear of prosecution for obstruction of justice rather than persecution for his political beliefs — not prosecution for obstruction of justice in addition to persecution for his political beliefs. Under such an understanding, there is no explicit “mixed-motive” analysis to undertake because the IJ found as a matter of fact that a mixed motive did not exist.1 Despite my good colleagues’ analysis, this case boils down to their underlying dissatisfaction with the IJ’s factual determinations.2 Cf. Sebastian-Sebastian v. INS, 195 F.3d 504, 513 (9th Cir.1999) (Wigging, J., concurring) (“Because the administrative authorities determined that the ... persecution was [based] solely [on non-political grounds], in the absence of evidence that compels a contrary conclusion I must consider this to be a case involving solely non-politically motivated persecution, rather than [a] mixed-motive persecution [case.]” (emphasis added)).

In sum, the IJ was not required to undertake a specific mixed-motive analysis. Rather, the IJ was required to examine the totality of the evidence in order to determine if Menghesha showed that the government was motivated to persecute him at least in part because of his political beliefs. This much the IJ did. If, as here, the IJ finds that a petitioner failed to meet his burden of persuasion that he fears persecution on account of a protected ground, then the petitioner is not entitled to asylum, regardless of how many alternative non-protected grounds the IJ might find motivating the government. In other words, an IJ commits a “mixed motive” *210legal error if he finds that a petitioner put forth sufficient evidence to show that the government is partially motivated to persecute the petitioner based on a protected ground, but nonetheless concludes that the petitioner is not entitled to asylum because the government is also motivated by legitimate grounds. The key facets of prototypical mixed motive legal error, then, are findings of both illegitimate and legitimate motives followed by a conclusion that the illegitimate motive is legally insufficient because of the existence of a legitimate motive. As I have shown, the IJ here committed no such error.

II.

Because the IJ correctly applied the INA, the question becomes whether the IJ’s conclusion was “manifestly contrary to law,” and whether the evidence in the record “compels” the conclusion that Menghe-sha had a well-founded fear that his government would persecute him because of his political opinion. See 8 U.S.C.A. § 1252(b)(4) (West 2005); Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812 (holding that a petitioner “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution”). The IJ’s determinations regarding Menghe-sha’s refugee status are conclusive “if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812 (internal quotation marks omitted). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir.1999).

Thus, our review is most narrow, exceedingly deferential, and “recognizes the respect we must accord both the BIA’s expertise in immigration matters and its status as the Attorney General’s designee in deportation decisions.” Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.1992). We apply such broad deference in asylum cases because Congress mandates that we do. See INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (“Within broad limits the law entrusts the agency to make the basic asylum eligibility decision here in question.”).

To grant the petition for review, Menghesha’s evidence must compel us to find a causal relationship between the Ethiopian government’s motive in this case and his political opinion. Because Menghesha’s evidence fails this standard, I conclude that the IJ’s decision was supported by reasonable, substantial evidence. In fact, this case is similar to Elias-Zaca-rias, where the Supreme Court outlined the proper understanding of what it means to be persecuted on account of political opinion.

In Elias-Zacarias, the Supreme Court considered an applicant who claimed he feared being kidnapped or killed by a Guatemalan guerrilla organization because he refused to join the organization. 502 U.S. at 483,112 S.Ct. 812. The Court, however, found that Elias-Zacarias put forth no evidence that would “compel the conclusion” thát he had a well-founded fear of persecution “because of [his] political opinion.” Id. at 483, 112 S.Ct. 812. The Court realized that even if Elias-Zacarias showed that he would be taken and killed by the guerrillas because of his refusal to join their group, it was “quite plausible, indeed likely, that the taking would be engaged in by the guerrillas in order to augment their troops rather than show their displeasure; *211and the killing he feared might well be a killing in the course of resisting being taken.” Id. at 483 n. 2, 112 S.Ct. 812. In short, his evidence failed to compel the Court that he would be persecuted because of his political beliefs.

Menghesha presented no evidence whatsoever showing direct causation, and little correlating evidence tending to show that government authorities in Ethiopia wished to persecute him on account of his political belief. It is “quite plausible, indeed likely,” then, that any action against Menghe-sha will take place in order to prosecute him because he deliberately impeded the government’s criminal investigation and not because the government disagrees with any political opinion expressed by Menghesha via his actions. Id. Although he has put forth evidence that the government has investigated his conduct and flight from Ethiopia, that evidence does not show that the government’s interest in him was based on his political opinions rather than his dereliction of duty.3 “[T]he mere existence of a generalized ‘political’ motive [or context] underlying [the supposed persecutor’s actions] is inadequate to establish (and, indeed, goes far to refute) the proposition that [an applicant] fears persecution on account of political opinion.” Id. at 482,112 S.Ct. 812 (emphasis in original).

I do not question that a reasonable finder of fact could infer that the government may have wished to persecute Menghesha at least in part on account of his political opinion. But Menghesha put forth no evidence compelling such a conclusion. And while Menghesha does not have to “provide direct proof of his persecutors’ motives, ... the statute makes motive critical, [so] he must provide some evidence of [motive], direct or circumstantial. And [because] he seeks to obtain judicial reversal of the BIA’s determination, he must show that the evidence he presented was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution. That he has not done.” Id. at 483^84,112 S.Ct. 812.

III.

Accordingly, because I believe no legal error occurred in this case and the IJ’s determination was supported by substantial evidence, I respectfully dissent.

. Contraiy to the majority’s claim, the IJ did not "suggest[] that prosecution never amounts to persecution.” Ante at 206 n. 2. Rather, the IJ found that Menghesha had a "duty under the law and his badge of office.” (J.A. at 225.) And as the majority points out, a court should recognize prosecution as persecution only when the "motive underlying [the] purported prosecution is illegitimate." Ante at 206 n. 2. In this case, however, the IJ found that the government had a legitimate motive to prosecute Menghesha for failing to undertake his duty. This finding of a legitimate, non-political motive underlies the IJ’s ultimate finding that the Ethiopian government was not motivated to persecute Menghe-sha at least in part because of his political opinion.

. What the majority does say is that the IJ erred in not considering the ''uncontested evidence of political motive.” Ante at 206. The evidence the majority cites, however, is not uncontested evidence of political motive any more than it is uncontested evidence of an obstruction of justice prosecutorial motive. For example, a government's motives are not normally thought of as political when it rightfully investigates one of its law enforcement officers suspected of aiding persons under criminal investigation. See Menghesha’s Affidavit in Support of Political Asylum (J.A. at 185 (stating that he and two colleagues were "accused of not doing our jobs properly because we were in sympathy with the opposition”) (emphasis added).) By claiming that the evidence in this case is evidence of a "political motive,” when the IJ found that no such motive exists, the majority attempts to substitute its own findings of fact for those of the IJ.

. This point is made more clear when reviewing Menghesha’s actions while in Ethiopia. According to Menghesha’s written statement, he first voiced his displeasure with the government’s actions in September of 1999. It was then that he was warned not to criticize his employer or the government might "harm” him. (J.A. at 184.) A year and a half later, in April of 2001, he was again given verbal warnings. Later that month he warned the students at the university and had his duties "modified” while the government investigated the leak. (J.A. at 187.) At no time while he was under investigation did the government use coercive means to question or interrogate him or take any steps against him that might establish a reasonable fear of persecution. Moreover, it was not until July 8, 2001, that he fled the country because he learned of his "impending arrest.” (J.A. at 188.) Thus, the fear causing him to flee did not arise upon the government learning that he sympathized with other political groups years beforehand. Instead, he did not leave until the day he learned he was to be arrested for warning the students of their impending arrest.