Manzur v. DHS, No. 03-40052 (2d Cir. 2007)
Annotate this Case
Download PDF
03-40052-ag(L) Manzur v. DHS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: January 26, 2007 Decided: July 13, 2007) Docket Nos. 03-40052-ag(L), 03-40054-ag(con), 03-40056-ag(con), 03-40068-ag(con) ________________________________________________________________ RANA YASMEEN MANZUR, ZOHEB MANZUR, SHAFQAT MUHAMMED MANZUR, and RUBANA MANZUR Petitioners, -v.U.S. DEPARTMENT OF HOMELAND SECURITY, Respondent. ________________________________________________________________ Before: KEARSE, SOTOMAYOR, Circuit Judges, and KOELTL, District Judge.* ________________________________________________________________ On petition for review of a decision of the Board of Immigration Appeals summarily affirming the Immigration Judge s denial of the petitioners applications for asylum and withholding of deportation pursuant to the Immigration and Nationality Act and withholding of deportation under the Convention Against Torture. Because the decision of the Immigration Judge is deficient in several significant respects, depriving the Court of the opportunity to conduct a meaningful judicial review, the petition for review is GRANTED. The decision of the BIA is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. WALTER H. RUEHLE, Legal Aid Society, Rochester, New York, for Petitioners. JOHN C. TRUONG, Assistant United States Attorney, Washington, D.C. (Kenneth L. * The Honorable John G. Koeltl of the United States District Court for the Southern District of New York, sitting by designation. 1 1 2 3 4 5 6 7 8 9 Wainstein, United States Attorney for the District of Columbia, and Madelyn E. Johnson and Heather R. Phillips, Assistant United States Attorneys, Washington, D.C., on the brief), for Respondent. KOELTL, District Judge: 10 Rana Yasmeen Manzur and three of her adult children, Zoheb 11 Manzur, Shafqat Muhammed Manzur, and Rubana Manzur, all natives 12 and citizens of Bangladesh, petition for review of the May 15, 13 2003 orders of the Board of Immigration Appeals ( BIA ) affirming 14 without opinion the January 31, 2002 decision of Immigration Judge 15 ( IJ ) Michael Rocco, denying the petitioners applications for 16 asylum and withholding of deportation (now withholding of 17 removal ) pursuant to the Immigration and Nationality Act ( INA 18 or the Act ) and withholding of deportation under the Convention 19 Against Torture ( CAT ).1 20 in several significant respects, depriving this Court of the 21 opportunity to conduct a meaningful judicial review, we grant the 22 petition, vacate, and remand. Because the IJ s analysis is deficient 23 24 25 26 1 The procedure now referred to as withholding of removal was previously described as withholding of deportation, the term used in the IJ s decision. See Tandia v. Gonzales, 437 F.3d 245, 247 n.5 (2d Cir. 2006). 2 1 I. 2 A. 3 The petitioners are the immediate family members of the late 4 Major General Mohammad Abul Manzur, a former high-ranking official 5 in the Bangladeshi military and a leading Bengali freedom 6 fighter in the 1971 Bangladeshi war for independence from 7 Pakistan. 8 widow, and co-petitioners Zoheb, Shafqat, and Rubana Manzur are 9 three of the couple s four children.2 10 Rana Manzur, the lead petitioner, is General Manzur s The last time Rana Manzur saw her husband, and the children 11 their father, was in May 1981 when three military officers entered 12 the Manzurs home in the middle of the night and took General 13 Manzur away. 14 the beginning of a pattern of persecution that lasted 15 approximately twelve years, through 1993, around the time the last 16 of the petitioners, Rana Manzur, finally left Bangladesh. 17 According to the petitioners, that incident marked The following morning, after General Manzur was taken away, 18 Rana Manzur and her four young children awoke to find the 19 telephone disconnected and their normal security detail replaced 20 by more than one hundred armed guards, acting under military 21 command. Rana Manzur also learned that the night before, the same 2 The fourth child, Karishma Manzur, had her applications for asylum and withholding of deportation under the Act, and withholding of deportation under the CAT, denied together with those of the rest of her family, but she was granted a suspension of deportation and thus is not a party to this petition for review. 3 1 night General Manzur was taken away, the Bangladeshi president, 2 Ziaur Rahman (known as Zia ), had been assassinated. 3 Manzur tried to escape to find a telephone to call her husband, 4 she was captured by the guards, returned to her home, and 5 handcuffed. 6 the house. 7 next several days as the family remained under house arrest. 8 9 Her children were tied up. When Rana The guards then looted Rana Manzur was handcuffed intermittently over the About three days after their house arrest began, a Lieutenant Colonel Mohammed Abdul Awal, who was married to General Manzur s 10 younger sister, came to visit Rana Manzur at her home. 11 Awal was a razakar, a Bengali officer formerly in the Pakistani 12 army who fought against Bangladeshi independence in the 1971 war 13 and against freedom fighters like General Manzur. 14 convinced Rana Manzur to leave her home and accompany him to 15 Dhaka, where he told her General Manzur had been taken. 16 Colonel Colonel Awal Escorted by Colonel Awal and armed guards, the family was 17 transported by military helicopter to the capital city of Dhaka. 18 Once there, the family was driven to a two-story house in a remote 19 area. 20 month, the family was detained in that house, confined to a single 21 room on the second floor. 22 constant guard by armed men dressed in civilian attire. 23 told Rana Manzur that they were with the foreign service, but 24 she suspected that they were with the Directorate of General They never saw General Manzur. Instead, for the next During that time, the family was under 4 These men 1 Forces Intelligence ( DGFI ), a government intelligence 2 organization, then headed by a razakar. 3 tell Rana Manzur why the family was being detained. 4 month, the family was released. 5 The guards refused to After about a Once released, Rana Manzur learned that her husband, General 6 Manzur, had been killed. According to the account provided by the 7 Bangladeshi government, General Manzur was executed for his 8 alleged role in a coup d etat attempt that led to President Zia s 9 assassination. In addition, thirteen other military officers, 10 eleven of whom were freedom fighters, were eventually executed for 11 their alleged involvement in the coup, including a nephew of 12 General Manzur; for the same alleged reason, two hundred freedom 13 fighters were dismissed from the army. 14 General Hossain Mohammed Ershad, a razakar who was then head of 15 the Bangladeshi army, ordered General Manzur s execution. 16 Allegedly, Lieutenant The petitioners contend--consistent with at least one account 17 of the events surrounding the 1981 coup--that General Ershad 18 fabricated General Manzur s involvement in the alleged coup and 19 orchestrated the president s assassination as part of a high-level 20 conspiracy designed simultaneously to eliminate the president, 21 suppress political opposition from the freedom fighters, 22 particularly General Manzur, and clear the path for General 23 Ershad s eventual rise to power. 24 control from Bangladesh s interim government in a bloodless, In 1982, General Ershad seized 5 1 military coup, imposed martial law, and, in 1983, declared himself 2 president. 3 The petitioners allege that General Ershad was the driving 4 force behind their persecution in Bangladesh, both before and 5 after their release from detention. 6 informed Rana Manzur that after the 1981 coup, General Ershad 7 wanted to kill her and her children, but was talked out of the 8 idea by other officers. 9 military and privy to such information, informed Rana Manzur of a 10 government report alleging that she was involved in antigovernment 11 activity. 12 A friend in the military Another friend, whose husband was in the After the Manzurs release from confinement, the family 13 remained under constant surveillance, which lasted throughout 14 their time in Bangladesh; they were followed frequently by what 15 they perceived to be agents of the DGFI. 16 after their release, the petitioners lived with various extended 17 family members, but were forced to move frequently, in part 18 because these family members were fearful of what they perceived 19 to be a significant threat from ongoing government surveillance. 20 At this time, the DGFI would come to the house where the 21 petitioners were staying and ask personal questions of those with 22 whom the petitioners lived. 23 24 For about six months During their time in Bangladesh, the petitioners allege that they suffered other harms as well, which they attributed to 6 1 General Ershad and his regime. These harms included alleged 2 economic privation, based on, for example, the government s 3 refusal to provide Rana Manzur with the benefits to which she 4 believed she was entitled as a military officer s widow, 5 obstruction of her employment opportunities, and the denial of a 6 bank loan to start a business. 7 among other things, restrictions on travel, societal 8 discrimination, the denial of medical care to Rubana Manzur, and 9 several attempted rapes of Rana Manzur by an army officer who These alleged harms also included, 10 accompanied her and her daughter on a trip outside the country. 11 In December 1990, General Ershad was ousted from power and 12 forced to resign by a democratic movement led in part by Begum 13 Khaleda Zia, the widow of former President Zia. 14 elected Prime Minister of Bangladesh and assumed the office in 15 March 1991. 16 petitioners except for Rana Manzur left Bangladesh for the United 17 States. Khaleda Zia was Between September 1990 and September 1991, all of the 18 Rana Manzur remained in Bangladesh after General Ershad was 19 ousted from power to investigate General Ershad s involvement in 20 her husband s death and to pursue his prosecution for the 21 execution of her husband. 22 made by Khaleda Zia while running for Prime Minister accusing 23 General Ershad of the assassination of Khaleda Zia s husband, 24 former President Zia, and stating that General Ershad should be She was inspired by campaign statements 7 1 brought to justice. 2 Rana Manzur began speaking with lawyers about the possibility of 3 prosecuting General Ershad and, after Khaleda Zia s election as 4 Prime Minister, attempted to meet and speak with Prime Minister 5 Zia on the subject. 6 Prime Minister Zia refused to meet with Rana Manzur, and the 7 lawyers with whom Rana Manzur spoke refused to take the case, at 8 least one of whom expressed fear for his safety. 9 Immediately after General Ershad resigned, Her efforts, however, were unsuccessful. In 1992, after Rana Manzur commenced her efforts to have 10 General Ershad prosecuted, she began receiving threatening phone 11 calls. 12 normally came in the middle of the night. 13 that they knew her every move, knew about her attempts to meet 14 with Prime Minister Zia, and threatened that if she continued her 15 efforts, she would suffer the same fate as her husband. 16 from the threatening anonymous calls, Rana Manzur received one 17 call from a Major Mizzan, a member of Prime Minister Zia s 18 political party and a family friend, who advised her not to do 19 anything silly and not to pursue the subject, because she should 20 remember how her husband died. 21 The calls became more frequent in 1993. The calls The callers told her Apart Around this time, Rana Manzur was also visited on several 22 occasions by the anticorruption police, who asked her personal 23 questions about her life, income, and children. 24 her absence from a military ceremony in 1993, she received calls 8 Further, after 1 from the DGFI inquiring as to her absence and accusing her of 2 trying to conflict with the government. 3 1993, Rana Manzur observed an army jeep with what she perceived to 4 be DGFI agents parked openly in front of her house for the first 5 time. 6 Ershad s prosecution, went into hiding, and began seeking a way to 7 leave for the United States. 8 several months later, in January 1994, on a visitor s visa. Finally, in the fall of After that, she abandoned her efforts to pursue General She entered the United States 9 10 11 B. The IJ held a series of hearings on the petitioners 12 applications for asylum and withholding of deportation. 13 hearings commenced on July 22, 1997 and concluded with a final 14 hearing in January 2000. 15 2002, the IJ denied the petitioners applications, but granted the 16 petitioners requests for voluntary departure. 17 The In a written decision dated January 31, The IJ found that the petitioners had failed to show that 18 their experiences, whether considered singly or in the aggregate, 19 establish persecution within the meaning of the [INA]. 20 IJ did not appear to question the credibility of the petitioners 21 with respect to the individual incidents about which they 22 testified and provided evidence, he analyzed each of the incidents 23 and found that each incident did not support a finding of 24 persecution. While the He found, for example, that the petitioners release 9 1 from confinement in 1981 without harm did not rise to the level 2 of persecution or reveal action motivated by a desire to punish 3 the petitioners based on a protected ground such as membership in 4 a particular social group or political opinion. 5 petitioners testimony about harassment by individuals they 6 believed to be agents of the government of Bangladesh did not 7 describe harm that rose to the level of persecution under the INA. 8 The IJ rejected any claims of economic deprivation because the 9 petitioners failed to establish that they were unable to support He found that the 10 themselves, and because their economic conditions were more 11 consistent with economic reality than with conspiratorial design. 12 The IJ also found that the petitioners had not established that 13 whatever threats they received constituted persecution or 14 persecution on account of a protected ground. 15 On May 15, 2003, the BIA issued a separate order for each 16 petitioner affirming without opinion the decision of the IJ. 17 Thereafter, the petitioners filed this petition for review. 18 19 II. 20 To qualify for asylum, which is available at the Attorney 21 General s discretion, an applicant bears the burden of 22 establishing that the applicant is unable or unwilling to return 23 to the applicant s native country because of persecution or a 24 well-founded fear of persecution on account of a protected 10 1 ground: race, religion, nationality, membership in a particular 2 social group, or political opinion. 3 1158; see Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir. 4 2006); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 5 2004). 6 has explained that 8 U.S.C. §§ 1101(a)(42), While persecution is not defined in the INA, this Court 7 8 9 10 11 12 13 14 15 16 Ivanishvili v. U.S. Dep t of Justice, 433 F.3d 332, 341 (2d Cir. 17 2006) (internal citations, alterations, and quotation marks 18 omitted). 19 ground triggers a rebuttable presumption that the applicant has a 20 well-founded fear of future persecution on that ground. 21 v. U.S. Att y Gen., 478 F.3d 513, 517 (2d Cir. 2007); Secaida- 22 Rosales v. I.N.S., 331 F.3d 297, 306 (2d Cir. 2003). 23 persecution includes more than threats to life and freedom, and therefore encompasses a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse, or non-physical forms of harm such as the deliberate imposition of a substantial economic disadvantage. In short, persecution is the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground. . . . A showing of past persecution on account of a protected See Uwais In contrast to asylum, withholding of removal (formerly 24 withholding of deportation, see supra note 1, at 2) is 25 nondiscretionary, but requires the applicant to satisfy the more 26 stringent showing that it is more likely than not that the 27 applicant s life or freedom would be threatened on account of 28 one of the protected grounds if the applicant were returned to the 29 applicant s native country. Ramsameachire, 357 F.3d at 178 11 1 (quoting 8 U.S.C. § 1231(b)(3)(A)); see Edimo-Doualla, 464 F.3d at 2 281; Yan Fang Zhang v. Gonzales, 452 F.3d 167, 172 (2d Cir. 2006). 3 To obtain withholding of removal under the CAT, an applicant must 4 show that it is more likely than not that the applicant would be 5 tortured if removed. 6 F.3d at 281. 7 8 C.F.R. § 208.16(c); see Edimo-Doualla, 464 Where, as here, the BIA affirms the decision of the IJ 8 without issuing an opinion, this Court reviews the decision of the 9 IJ directly, as the final agency determination. See Twum v. 10 I.N.S., 411 F.3d 54, 58 (2d Cir. 2005); Secaida-Rosales, 331 F.3d 11 at 305; see also 8 C.F.R. § 1003.1(e)(4). 12 Legal questions, including mixed questions of law and fact 13 and the application of law to fact, are reviewed de novo. 14 Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005); Secaida- 15 Rosales, 331 F.3d at 307. 16 findings under the substantial evidence standard; findings of fact 17 are treated as conclusive unless any reasonable adjudicator would 18 be compelled to conclude to the contrary. 19 § 1252(b)(4)(B); see also Zhou Yun Zhang v. U.S. I.N.S., 386 F.3d 20 66, 73 (2d Cir. 2004). 21 if it is supported by evidence that is reasonable, substantial, 22 and probative when considered in light of the record as a whole. 23 Jin Chen v. U.S. Dep t of Justice, 426 F.3d 104, 113 (2d Cir. See This Court reviews the IJ s factual 8 U.S.C. An IJ s factual finding will be affirmed 12 1 2005) (quoting Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir. 2 2000)). 3 Despite the deference typically afforded IJ and BIA 4 decisions, this Court require[s] a certain minimum level of 5 analysis from the IJ and BIA opinions denying asylum, and indeed 6 must require such if judicial review is to be meaningful. 7 Poradisova, 420 F.3d at 77. 8 issuing an opinion, our review is limited to the reasoning of 9 the IJ, and we will not search the record independently for a Where the BIA has affirmed without 10 basis to affirm the BIA. 11 Secaida-Rosales, 331 F.3d at 305); see also Cao He Lin v. U.S. 12 Dep t of Justice, 428 F.3d 391, 400 (2d Cir. 2005). 13 immigration court must adequately link its decision to the record 14 evidence in a reasoned opinion that properly applies the 15 law. . . . 16 Jin Chen, 426 F.3d at 113 (quoting [T]he Ivanishvili, 433 F.3d at 337. This Court retains substantial authority to vacate and remand 17 BIA and IJ decisions that result from flawed reasoning, a 18 sufficiently flawed fact-finding process, or the application of 19 improper legal standards. 20 (2d Cir. 2006); Cao He Lin, 428 F.3d at 400 01, 406; see also 21 Ivanishvili, 433 F.3d at 337. 22 to vacate and remand where the BIA or IJ analysis is insufficient 23 to determine whether the correct legal standard was applied. 24 Beskovic v. Gonzales, 467 F.3d 223, 224 (2d Cir. 2006); Mirzoyan See Rizal v. Gonzales, 442 F.3d 84, 89 This Court also will not hesitate 13 See 1 v. Gonzales, 457 F.3d 217, 221 (2d Cir. 2006) (per curiam). 2 defects are not excused by the fact that a hypothetical 3 adjudicator, applying the law correctly, might also have denied 4 the petition for asylum. 5 149 (2d Cir. 2003). 6 to the existence or likelihood of persecution, that a perfectly 7 reasonable fact-finder could have settled upon, insofar as the BIA 8 either has not applied the law correctly, or has not supported its 9 findings with record evidence. 10 Such Jin Shui Qiu v. Ashcroft, 329 F.3d 140, This Court will vacate BIA conclusions, as Id. Finally, even if an IJ s decision contains errors, the 11 decision will not be vacated and remanded if doing so would be 12 futile. 13 (2d Cir. 2006). 14 can confidently predict that the agency would reach the same 15 decision absent the errors that were made. 16 Lin, 428 F.3d at 395); see also Edimo-Doualla, 464 F.3d at 282. Xiao Ji Chen v. U.S. Dep t of Justice, 471 F.3d 315, 339 This Court will decline a remand as futile if we Id. (quoting Cao He 17 18 19 III. The IJ in this case found, among other things, that the 20 petitioners failed to establish past persecution within the 21 meaning of the Act. 22 credibility determination. 23 petitioners alleged incidents of persecution seriatim and 24 disposed of each claim individually by concluding--for various The IJ never made a specific adverse Instead, the IJ analyzed each of the 14 1 reasons--that the incidents did not constitute past persecution. 2 Cf. Edimo-Doualla, 464 F.3d at 282. 3 petitioners failed to establish past persecution is deficient in 4 several respects. 5 determine whether he properly considered the petitioners claims 6 in the aggregate, and his individual analysis of several of the 7 alleged incidents of harm contains both legal and factual errors. 8 Because we cannot confidently predict whether the IJ would adhere 9 to his decision absent these defects, we vacate the decision and 10 The IJ s finding that the The IJ s analysis is inadequate for us to remand the case for further consideration. 11 12 13 A. The IJ s analysis is inadequate for this Court to determine 14 whether the IJ properly considered in the aggregate the incidents 15 of harm constituting the petitioners claim of past persecution. 16 While the IJ recited that he considered the petitioners 17 experiences both singly and in the aggregate, there is no 18 reasoning in the decision that reflects that he did so. 19 considered each of the incidents separately without determining 20 how they affected the significance of the other incidents. 21 However, this Court has cautioned against precisely this sort of 22 approach. 23 IJ s apparent (and erroneous) technique of addressing the severity He See Poradisova, 420 F.3d at 79 ( Also troubling is the 15 1 of each event in isolation, without considering its cumulative 2 significance. ); see also Edimo-Doualla, 464 F.3d at 283. 3 Taking isolated incidents out of context may be misleading. 4 The cumulative effect of the applicant s experience must be taken 5 into account. 6 United Nations High Commissioner for Refugees, Handbook on 7 Procedures and Criteria for Determining Refugee Status Under the 8 1951 Convention and the 1967 Protocol Relating to the Status of 9 Refugees (Geneva 1992)); see also Edimo-Doualla, 464 F.3d at 283 10 ( A series of incidents of mistreatment may together rise to the 11 level of persecution even if each incident taken alone does 12 not. ). 13 Poradisova, 420 F.3d at 80 (quoting Office of the The petitioners claim of past persecution in this case is 14 primarily predicated on the alleged pattern of harms to which the 15 petitioners were subjected over approximately a twelve-year period 16 in Bangladesh. 17 least two respects. 18 individual incidents may rise to the level necessary for 19 persecution even though an individual incident may not. 20 the motive for the harm inflicted must be analyzed in light of 21 the context in which the harm occurred. 22 (emphasis added). 23 petitioners claims and may lend evidentiary support to a 24 conclusion that individual incidents of harm were in fact on This pattern of incidents is significant in at First, accumulation of harm from the Second, Uwais, 478 F.3d at 517 The pattern provides context for the 16 1 account of a ground protected by the Act, such as political 2 opinion or social group membership. 3 The IJ s practice of dividing this pattern of harms into 4 isolated incidents and disposing of each on different grounds, 5 without explaining the cumulative significance--if any--of each of 6 these harms on the petitioners aggregate claim of persecution, 7 both misconstrues the nature of the petitioners claim and 8 deprives this Court of the opportunity to review meaningfully any 9 aggregate analysis the IJ may have conducted. Thus, although the 10 IJ stated that he considered the petitioners claim both singly 11 and in the aggregate, there is no analysis in the decision that 12 shows that the IJ correctly applied this standard. 13 14 B. 15 Apart from the IJ s apparent failure to consider adequately 16 the petitioners claim of past persecution in the aggregate, the 17 IJ also erred in his individual analysis of several of the alleged 18 incidents of harm.3 19 20 21 3 Although we discuss the IJ s analysis of certain individual claims, the IJ should address and--if appropriate--consider, as part of his aggregate analysis, all of the events that the petitioners have alleged as contributing to their persecution. See supra at 7 8 (listing other alleged harms). 17 1 1. 2 First, the IJ erred in analyzing whether the petitioners 3 month-long confinement in 1981 was persecution on account of a 4 protected ground. 5 that the petitioners release from confinement in 1981 without 6 harm does not [1] describe harm that rises to the level of 7 persecution or [2] reveal action motivated by a desire to punish 8 the [petitioners] on account of familial relationship, political 9 beliefs or any political belief imputed to them. 10 11 The IJ concluded, without further explanation, The IJ s conclusions are unsupported. The meaning of the IJ s finding that the petitioners were 12 released without harm is unclear, and to the degree that it 13 means that their confinement did not support a finding of 14 persecution, it is unfounded. 15 trivially, that the petitioners suffered no harm at the moment of 16 their release, the IJ failed to consider adequately the harm 17 suffered during the petitioners month-long confinement. 18 phrase without harm could also be a finding that the 19 petitioners month-long detention was not at all harmful. If so, 20 the IJ s finding is not supported by substantial evidence. For 21 example, the IJ did not appear to consider that the petitioners 22 have been diagnosed with post-traumatic stress disorder based on 23 their alleged persecution in Bangladesh, which includes their 24 detention by authorities. If the IJ meant, somewhat The Finally, without harm might refer to 18 1 the fact that the petitioners did not allege that they suffered 2 physical harm during their month-long detention. 3 to suggest that a showing of physical harm is always required to 4 demonstrate persecution, this conclusion was error. 5 requirement has ever been established. 6 at 341 ( [P]ersecution includes . . . non-life-threatening 7 violence and physical abuse or non-physical forms of harm such as 8 the deliberate imposition of a substantial economic disadvantage. 9 (internal quotation marks, alterations, and citations omitted)). 10 Other than the statement that the petitioners were released If the IJ meant No such See Ivanishvili, 433 F.3d 11 without harm, the IJ provided no further explanation for his 12 finding that the petitioners month-long confinement did not rise 13 to the level of persecution. 14 link his decision to the evidence in the record and in doing so 15 deprived this Court of the opportunity to exercise any meaningful 16 review of this finding. The IJ thus failed adequately to 17 The IJ also rejected the evidence of confinement as a factor 18 in establishing a claim of past persecution because he found that 19 there was no evidence that those responsible for the confinement 20 sought to harm the petitioners on account of familial 21 relationship, political beliefs or any political belief imputed to 22 them. 23 24 The IJ noted that there is no persuasive evidence that those responsible [for General Manzur s death] sought to harm the 19 1 [petitioners] for his opinions. However, an asylum applicant can 2 establish a persecutor s motives by either direct or 3 circumstantial evidence. 4 478, 483 (1992); Uwais, 478 F.3d at 517. See I.N.S. v. Elias-Zacarias, 502 U.S. 5 In this case, the petitioners were detained without 6 explanation immediately after General Manzur was taken away by 7 military officers in the middle of the night and, as petitioners 8 later learned, executed. 9 Manzur was no secret. The petitioners relationship to General Rana Manzur repeatedly asked about her 10 husband throughout the family s detention. Furthermore, General 11 Ershad and Colonel Awal, who took the petitioners into detention, 12 were members of a political group that General Manzur had fought 13 against. 14 kill Rana Manzur and her children after the 1981 coup, but was 15 dissuaded from doing so. 16 apparently failing to consider this probative circumstantial 17 evidence that the Manzurs were detained on account of General 18 Manzur s political opinions that were imputed to them or because 19 of their membership in a particular social group, defined by their 20 familial relationship to General Manzur.4 Indeed, there was evidence that General Ershad wanted to At the very least, the IJ erred in 4 See Cao He Lin, 428 The IJ s decision appears to assume that familial relationship may be a protected ground for asylum purposes within the broader category of membership in a particular social group, but did not discuss this issue. See, e.g., In re A-M-E, 24 I. & N. Dec. 69, 73 74 (BIA Jan. 31, 2007) (discussing the standard for social group membership). We do not address whether familial relationship may constitute a particular social group under the INA, in light of the Supreme Court s determination that the BIA must decide this question in the first 20 1 F.3d at 400; Jin Shui Qiu, 329 F.3d at 149 (holding that all 2 factual assertions in a claim must be considered unless the 3 evidence is too insignificant to merit discussion (internal 4 quotation marks omitted)). 5 The IJ also appears to have imposed an overly stringent 6 burden of proof on the petitioners in analyzing whether the 7 petitioners month-long detention was on account of a protected 8 ground. 9 the petitioners confinement occurred during the chaotic period 10 following the assassination of President Zia, their temporary 11 confinement may have had purposes unrelated to any persecution on 12 account of political views or family affiliation. 13 asylum applicant need not show with absolute certainty why the 14 events occurred, but rather, only that the harm was motivated, in 15 part, by an actual or imputed protected ground. 16 at 517; accord Osorio v. I.N.S., 18 F.3d 1017, 1028 (2d Cir. 17 1994). In considering this issue, the IJ speculated that because However, an Uwais, 478 F.3d The IJ appears to have applied a stricter standard, instance. Gonzales v. Thomas, 547 U.S. 183, 186 87 (2006) (per curiam); see also Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d Cir. 2006) (per curiam) (noting that an individual IJ s interpretation, even if summarily affirmed by the BIA, [is] not sufficient to constitute the agency s interpretation ). Nor do we address whether familial relationship may form the basis of an imputed political opinion, as several other courts of appeals have suggested. See, e.g., Dia v. Ashcroft, 353 F.3d 228, 255 (3d Cir. 2003) (en banc) (finding reasonable petitioner s conclusion that military officials raped his wife because of his alleged involvement with rebels); Navas v. I.N.S., 217 F.3d 646, 659 n.18 (9th Cir. 2000) ( Where police beat and threaten the spouse of a known dissident, it is logical, in the absence of evidence pointing to another motive, to conclude that they did so because of the spouse s presumed guilt by association. ). 21 1 requiring the petitioners to disprove speculative alternative 2 explanations and failing to recognize that asylum can be based on 3 persecution that is motivated in part on a protected ground. 4 was legal error. This 5 6 2. 7 The IJ also erred in his analysis of the petitioners claim 8 of persecution based on the constant surveillance to which the 9 family was subjected after their release from detention. The IJ 10 concluded that the petitioners alleged harassment by unknown 11 individuals believed to be agents of the government does not 12 describe harm that rises to the level of persecution under the 13 Act. 14 [t]here is no evidence in this record that any of the 15 [petitioners] were ever arrested, detained or physically abused by 16 the conduct described. 17 all of the petitioners had been detained for more than a month in 18 1981. 19 surveillance, the IJ appears to have used an overly restrictive 20 definition of persecution. 21 petitioner claiming past persecution allege either detention or 22 physical harm. 23 Begzatowski v. I.N.S., 278 F.3d 665, 669 (7th Cir. 2002) ( Types 24 of actions that might cross the line from harassment to The only asserted basis for this conclusion was that This statement was plainly wrong because Assuming that the IJ was referring solely to the subsequent There is no requirement that a See Ivanishvili, 433 F.3d at 341; see also 22 1 persecution include: 2 prosecution, imprisonment, illegal searches, confiscation of 3 property, surveillance, beatings, or torture. (internal quotation 4 marks omitted)), cited in Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d 5 554, 567 (2d Cir. 2006). 6 detention, arrest, interrogation, The IJ appears to have viewed skeptically the petitioners 7 claim that the individuals engaged in the surveillance were 8 government agents, referring to them as unknown individuals 9 believed to be agents of the government. The IJ did not, 10 however, articulate this observation as an alternative basis for 11 denying the petitioners past persecution claim, and the IJ 12 provided no basis for a conclusion that surveillance was being 13 conducted by some non-governmental group. 14 the IJ rejected this claim exclusively on the ground that it did 15 not describe harm rising to the level of persecution. 16 is limited to the reasoning of the IJ, and as to this claim, that 17 reasoning was deficient. As best we can tell, Our review 18 19 20 3. The IJ s analysis of petitioners claim of past persecution 21 based on the threats that Rana Manzur received in response to her 22 efforts to have General Ershad prosecuted is also insufficient. 23 It is unclear whether the IJ rejected this claim because the 24 petitioners did not identify the source of the threats or because 23 1 the petitioners did not demonstrate that the threats were on 2 account of a protected ground. 3 on the former conclusion, it was legal error. 4 from the Seventh Circuit Court of Appeals, Mitev v. I.N.S., 67 5 F.3d 1325 (7th Cir. 1995), for the proposition that while threats 6 could amount to persecution, an asylum applicant must identify who 7 issued a particular threat, in what setting and for what purpose. 8 In Mitev, however, the court was discussing the importance of the 9 context of threats and specifically discounted threats that came To the extent the decision rested The IJ cited a case 10 from co-workers, often in the context of political discussions. 11 Mitev, 67 F.3d at 1331. 12 threats could not be included in the mix of evidence showing that 13 an applicant had been subjected to persecution. 14 noted, [c]oncluding that persecutors failure to reveal their 15 identities and motivations . . . undercuts an applicant s 16 credibility does not rest on the legitimate nexus required in 17 credibility findings. 18 Poradisova, 420 F.3d at 80 ( The IJ also unreasonably dismissed as 19 of no value the anonymous threatening calls [the petitioner] 20 Tatiana received in 1992 simply, and inexplicably, because they 21 were anonymous. ). 22 The court did not conclude that anonymous As this Court has Secaida-Rosales, 331 F.3d at 311; see also To the extent the IJ concluded that the death threats were 23 not on account of a protected ground, the IJ failed to explain 24 adequately the basis for this conclusion. 24 Specifically, the IJ 1 did not explain the basis for his conclusion that Rana Manzur s 2 attempts to have General Ershad prosecuted did not constitute the 3 expression of a political opinion or cause a political opinion to 4 be imputed to her. 5 Ershad s prosecution after Prime Minister Zia, in her campaign, 6 elevated the issue of bringing General Ershad to justice to the 7 political stage. 8 threatening phone calls and visits from the anti-corruption police 9 after she began pursuing General Ershad s prosecution, and that Here, Rana Manzur actively pursued General Rana Manzur testified that she began receiving 10 she was accused of trying to conflict with the government by the 11 DGFI for not attending a military ceremony. 12 the attempt to prosecute a public official, standing alone, is not 13 sufficient to establish the expression of a political opinion.5 14 The IJ also noted parenthetically that purely personal retribution 15 is not persecution on account of political opinion. 16 The IJ asserted that This Court has rejected an impoverished view of what 17 political opinions are, especially in a country . . . where 18 certain democratic rights have only a tenuous hold. 19 Zhang v. Gonzales, 426 F.3d 540, 546 (2d Cir. 2005) (quoting 20 Osorio, 18 F.3d at 1030). 21 corruption, this Court has stated that the central questions for Yueqing In cases of opposition to government 5 The IJ s statement that the attempt to prosecute a public official standing alone did not establish the expression of a political opinion is a further illustration of the IJ s general failure to evaluate adequately the petitioners claims in light of the entire evidentiary context in which they arose. 25 1 determining the nature of an applicant s actions, which the IJ 2 neither discussed nor recognized, are whether the applicant s 3 actions were directed toward a governing institution, or only 4 against individuals whose corruption was aberrational and 5 whether the persecutor was attempting to suppress a challenge to 6 the governing institution. 7 and citation omitted); see also Hasan v. Ashcroft, 380 F.3d 1114, 8 1120 (9th Cir. 2004); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th 9 Cir. 2004); Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir. 2000) Id. at 548 (internal quotation marks 10 (finding that when alleged corruption which the petitioner exposed 11 is inextricably intertwined with government operation, the 12 exposure and prosecution of such abuse is necessarily political); 13 Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1245-46 (9th Cir. 1999); 14 Gomez-Saballos v. I.N.S., 79 F.3d 912, 917 (9th Cir. 1996) 15 (finding that personal retaliation against a vocal political 16 opponent does not render the opposition any less political, or the 17 opponent any less deserving of asylum). 18 has stated that the determination of whether a petitioner s 19 persecutors were motivated by the petitioner s opposition to the 20 government is a complex and contextual factual inquiry. 21 Zhang, 426 F.3d at 548. 22 inquiry regarding the nature of Rana Manzur s actions or the 23 motivation of her persecutors, the proper course is to remand for In addition, this Court Yueqing Because the IJ did not engage in this 26 1 further consideration of whether Rana Manzur made the requisite 2 showing. 3 The IJ cited the Supreme Court s opinion in I.N.S. v. Elias- 4 Zacarias, 502 U.S. 478 (1992), for the proposition that 5 [p]ersecution on account of political opinion means persecution 6 on account of the victim s not the persecutor s political 7 opinion. 8 citation misapprehends Rana Manzur s claim. 9 that she was persecuted precisely because of her political opinion While that is a fair description of Elias-Zacarias, the Rana Manzur claims 10 that her husband had been the victim of assassination engineered 11 by General Ershad and that, consequently, General Ershad should be 12 prosecuted. 13 her precisely because of her views, not the persecutors . 14 IJ s analysis of this claim is, therefore, deficient. She alleges that the threats were directed against The 15 The IJ also did not explain why, on these facts, the 16 petitioners have not shown that the threatening calls that Rana 17 Manzur received were motivated--at least in part--by an imputed 18 political opinion. 19 imputed political opinion, an applicant may establish persecution 20 on account of a protected ground by showing that the persecutors 21 perceived the applicant to have a political opinion and acted 22 because of it. 23 Cir. 2005). This Court has stated that, under a theory of See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d 24 27 1 4. 2 Finally, the IJ s analysis of the petitioners economic 3 persecution claim is insufficient to determine whether the correct 4 legal standard was applied. 5 IJ rejected petitioners claim of economic persecution because he 6 concluded that they failed to establish . . . that they were not 7 able to support themselves, citing as support several cases that 8 do not articulate a clear standard for economic persecution. 9 Court has previously recognized that the standard for economic See Beskovic, 467 F.3d at 224. 10 clarification. This persecution claims is unclear, and remanded to the BIA for 11 The See Mirzoyan, 457 F.3d at 223-24. 12 The BIA s recent decision, In re T-Z-, 24 I. & N. Dec. 163 13 (BIA May 9, 2007), responds to this Court s request in Mirzoyan 14 and articulates the BIA s standard for evaluating nonphysical 15 harm, including economic harm. 16 decision, and because we are unable to determine the standard that 17 the IJ applied to petitioners claim of economic persecution, the 18 proper course is to remand to the BIA for further consideration in 19 light of In re T-Z-. Based on this intervening 20 21 IV. 22 For all of these reasons, the Court concludes that the IJ 23 erred in considering the petitioners claim of past persecution. 24 Assuming that the petitioners can establish their claim of past 28 1 persecution, the Government on remand will have to overcome a 2 rebuttable presumption that the petitioners have a well-founded 3 fear of future persecution.6 4 confidently predict whether, under these circumstances and absent 5 the IJ s errors, the BIA would adhere to its prior decision Therefore, because we cannot 6 The IJ did not discuss the issue of whether the petitioners have a well-founded fear of future persecution other than to conclude that the petitioners had not established that any harm . . . feared was on account of any characteristic enumerated in the Act. The IJ never analyzed or even mentioned whether the Government offered sufficient evidence to overcome any presumption that the petitioners had a wellfounded fear of future persecution as a result of their past persecution. The IJ did, however, cite to a July 27, 1998 letter from the State Department Office of Asylum Affairs, submitted in response to the IJ s request for an advisory opinion on Rana Manzur s asylum application. Letter from William M. Bartlett, Director, Office of Asylum Affairs, Bureau of Democracy, Human Rights and Labor, United States Department of State, to Executive Office of Immigration Review, Office of the Immigration Judge (July 27, 1998) [hereinafter Letter]. The letter summarizes some of the petitioner s claims and then concludes that [i]t seems unlikely that the applicant would face any mistreatment in Bangladesh if she were to return to that country. Id. at 2. It is not clear to what extent the IJ relied on this letter in concluding that the petitioners failed to establish their claim of past persecution, and in any event, the letter cannot cure the IJ s failure to analyze adequately the petitioners claim of past persecution. Moreover, it is unclear what weight the IJ gave to the letter in assessing whether the Manzurs have a well-founded fear of future persecution; we reject the Government s contention that its position in the letter is in any way dispositive of the issue of future persecution, particularly given the IJ s failure to assess the applicable burden of proof. The letter is no substitute for the IJ considering the full record of testimony and evidence in this case, cf. Tian-Yong Chen v. U.S. I.N.S., 359 F.3d 121, 130 (2d Cir. 2004) (cautioning against excessive reliance on State Department country reports), particularly when the letter relies solely on analysis of country conditions and the written asylum application and disclaims any independent investigation into the pattern of events that petitioners allege constitute past persecution. See Letter at 2. The letter in this case also contains certain factual misstatements. See id. at 1 (claiming that petitioner does not claim to have been . . . detained despite the Manzurs claim of month-long confinement); id. (claiming that President Zia was the father, rather than the husband, of Prime Minister Khaleda Zia). 29 1 denying the petitioners applications for asylum, we remand. 2 Uwais, 478 F.3d at 519 n.1; Beskovic, 467 F.3d at 227; 3 See Because the errors in the IJ s analysis of the petitioners 4 claim for asylum bear on the petitioners eligibility for 5 withholding of deportation (or removal) under the INA and relief 6 under the CAT, we remand these latter claims as well. 7 Abankwah v. I.N.S., 185 F.3d 18, 26 (2d Cir. 1999). See, e.g., 8 9 CONCLUSION 10 For all of the reasons discussed above, the petition for 11 review is GRANTED. The decision of the BIA is VACATED, and the 12 case is REMANDED for further proceedings consistent with this 13 opinion. 30
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
