Abdalla v. Sessions

14-1164 Abdalla v. Sessions BIA Straus, IJ A099 564 450 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 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 15th day of May, two thousand seventeen. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 IMAN SHOUKRI NASHED ABDALLA, 14 Petitioner, 15 16 v. 14-1164 17 NAC 18 JEFFERSON B. SESSIONS III, 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Elyssa N. Williams, Formica 24 Williams, P.C., New Haven, CT. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal Acting 27 Assistant Attorney General; John W. 28 Blakeley, Assistant Director; Jason 29 Wisecup, Christina J. Martin, Trial 30 Attorneys, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED 5 for further proceedings consistent with this order. 6 Petitioner Iman Shoukri Nashed Abdalla, a native and 7 citizen of Egypt, seeks review of a March 25, 2014, decision 8 of the BIA affirming the June 6, 2008, and June 5, 2012 decisions 9 of an Immigration Judge (“IJ”) denying Abdalla’s application 10 for asylum, withholding of removal, and relief under the 11 Convention Against Torture (“CAT”). In re Iman Shoukri Nashed 12 Abdalla, No. A099 564 450 (B.I.A. Mar. 25, 2014), aff’g No. A099 13 564 450 (Immig. Ct. Hartford June 6, 2008 and June 5, 2012). 14 We assume the parties’ familiarity with the underlying facts 15 and procedural history in this case. 16 We have reviewed the BIA’s decision as well as the IJ’s 2008 17 and 2012 decisions “for the sake of completeness.” Wangchuck 18 v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). Because the agency 19 proceedings were reopened while the initial petition for review 20 was pending, the initial decisions by the IJ and BIA were not 21 subject to review until entry of the new final administrative 22 order in 2014. See 8 U.S.C. § 1252(a)(1); Chupina v. Holder, 23 570 F.3d 99, 103 (2d Cir. 2009). We therefore have jurisdiction 2 1 to review the agency’s initial determination that Abdalla 2 failed to establish past persecution, as well as its subsequent 3 rulings. The applicable standards of review are well 4 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 5 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 6 The BIA has defined persecution as a “threat to the life 7 or freedom of, or the infliction of suffering or harm upon, those 8 who differ in a way regarded as offensive.” Matter of Acosta, 9 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on 10 other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); 11 accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 12 (2d Cir. 2006). Past persecution can be based on harm other 13 than threats to life or freedom, “includ[ing] 14 non-life-threatening violence and physical abuse,” Beskovic v. 15 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm 16 must be sufficiently severe to rise above “mere harassment,” 17 Ivanishvili, 433 F.3d at 341. The difference between 18 harassment and persecution is “necessarily one of degree that 19 must be decided on a case-by-case basis.” Id. We have 20 explained that the “technique of addressing the severity of each 21 event in isolation, without considering its cumulative 22 significance,” constitutes error. See Poradisova v. Gonzales, 23 420 F.3d 70, 79 (2d Cir. 2005). 3 1 Abdalla is correct that the agency failed to consider her 2 incidents of past harm in the aggregate. Although the agency 3 found that there was no evidence of a nexus between the incidents 4 with the cab or bus drivers and Abdalla’s Coptic Christian 5 faith, the agency did not mention Abdalla’s other alleged 6 incidents of past harm in its past persecution analysis. Those 7 additional incidents, which included robberies, sexual 8 harassment, abductions, and forced (or attempted forced) 9 conversions of family members to Islam, were significant. 10 Although the IJ stated that Abdalla’s claims “are very likely 11 exaggerated,” he did not make an adverse credibility 12 determination or identify which of Abdalla’s allegations of 13 past harm were not supported by the country conditions evidence. 14 The country conditions evidence does not flatly contradict 15 Abdalla’s claims, so the basis for the IJ’s conclusion is not 16 self-evident. Because the agency did not consider Abdalla’s 17 incidents of past harm in the aggregate and the IJ did not 18 sufficiently explain its finding that her claims are likely 19 exaggerated, we are unable to meaningfully review the agency’s 20 past persecution finding. See Beskovic, 467 F.3d at 227 21 (requiring analysis sufficient to enable meaningful judicial 22 review). Remand is therefore required for the agency to more 23 fully assess Abdalla’s allegations of past harm. See Tian-Yong 4 1 Chen v. U.S. INS, 359 F.3d 121, 127-28 (2d Cir. 2004) (noting 2 that remand is appropriate where the agency’s decision “omit[s] 3 potentially significant facts” so fundamental to the claim that 4 “we are unable adequately to consider whether substantial 5 evidence supports the BIA’s determination”). 6 The error in the past persecution analysis affected the 7 remainder of the agency’s decisions because past persecution 8 entitles an asylum applicant to a presumption of a well-founded 9 fear of future persecution. 8 C.F.R. § 1208.16(b)(1)(i)(“If 10 the applicant is determined to have suffered past persecution 11 in the proposed country of removal on account of race, religion, 12 nationality, membership in a particular social group, or 13 political opinion, it shall be presumed that the applicant’s 14 life or freedom would be threatened in the future in the country 15 of removal on the basis of the original claim.”). Accordingly, 16 we do not reach the issue of any independent fear of future 17 persecution as it is unclear whether Abdalla or the Government 18 had the burden of proof. See Kyaw Zwar Tun v. U.S. INS, 445 19 F.3d 554, 565 (2d Cir. 2006). 20 Given that the agency is required to consider Abdalla’s 21 past persecution and fear of future persecution in light of 22 current country conditions, and given the significant passage 23 of time since the agency’s decision, the parties should be 5 1 permitted to update the country conditions evidence, including 2 any relevant testimony. See Secaida-Rosales v. INS, 331 F.3d 3 297, 312-13 (2d Cir. 2003) (holding that because a significant 4 amount of time had passed since the IJ’s initial ruling, the 5 record should be supplemented with evidence of current country 6 conditions on remand), superseded by statute in part on other 7 grounds as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162 8 (2d Cir. 2008). 9 For the foregoing reasons, the petition for review is 10 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED 11 for further proceedings consistent with this order. As we have 12 completed our review, any stay of removal that the Court 13 previously granted in this petition is VACATED, and any pending 14 motion for a stay of removal in this petition is DISMISSED as 15 moot. Any pending request for oral argument in this petition 16 is DENIED in accordance with Federal Rule of Appellate Procedure 17 34(a)(2), and Second Circuit Local Rule 34.1(b). 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 6