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