United States Court of Appeals For the First Circuit

No. 19-1447

SALIM T. AL AMIRI,

Petitioner,

v.

JEFFREY ROSEN, Acting U.S. Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.

J. Christopher Llinas, with whom Llinas Law, LLC was on brief, for petitioner. Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, and Nancy E. Friedman, Senior Litigation Counsel, were

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey Rosen has been substituted for former Attorney General William P. Barr.  Of the United States Court of International Trade, sitting by designation. on brief, for respondent.

January 11, 2021 BARRON, Circuit Judge. Salim Al Amiri, an Iraqi citizen,

seeks relief from removal on the grounds of asylum, withholding of

removal, and protection under the United Nations Convention

Against Torture ("CAT"). He premises his requests for such relief

on the harm that he fears that he would be subjected to in Iraq at

the hands of members of Iraq's military or civilian insurgents

operating in that country. Al Amiri contends that he has reason

to fear he would be subjected to that harm on account of his work

as a paid contractor for the United States Army during the war in

Iraq, as in that role he educated U.S. soldiers about Iraqi customs

and practices as they prepared for their deployment. We vacate

and remand the ruling of the Board of Immigration Appeals ("BIA")

denying his claims for asylum and withholding of removal, but we

deny his petition insofar as it challenges the BIA's ruling

rejecting his CAT claim.

I.

Al Amiri was born in Iraq in 1983, but he then left that

country with his family in 1991. He spent several years in refugee

camps in Saudi Arabia before coming with his family to the United

States. In November of 1994, Al Amiri was granted lawful permanent

resident status in this country, where he has resided ever since.

He has two children, both of whom are American citizens.

During the war in Iraq, he was hired by the U.S.

government to train Army personnel. In that role, he taught

- 3 - soldiers about Iraq's cultural norms and how to interact

appropriately with the general population in that country,

including how to treat women and children and how to enter

another's home respectfully. He completed his duties successfully

and received a certificate of appreciation from the U.S. government

for his services.

Since moving to the United States, Al Amiri has traveled

to Iraq at least three times, in 2015, 2017, and 2018. On his

most recent trip there, which began in May 2018, Al Amiri and his

family spent six weeks visiting his grandmother, who was in poor

health.

Al Amiri's petition for review may be traced to events

that transpired upon his return to the United States from that

last trip to Iraq. After flying home from Iraq and arriving at

Logan International Airport in Boston, Massachusetts in July 2018,

he applied for admission to enter the United States. At that time,

U.S. Customs and Border Protection officers identified a 2015

conviction that Al Amiri had received for larceny under Michigan

law for having stolen a phone. They concluded that, in

consequence, he was subject to removal.1

1In evaluating Al Amiri's admissibility, officers noted that he had been placed in removal proceedings in 2011 for an earlier conviction. In those 2011 proceedings, he sought asylum, but his application was never adjudicated because he obtained cancellation of removal.

- 4 - Al Amiri was served with a notice to appear in removal

proceedings later that month. In October of that year, the

Immigration Judge ("IJ") determined that the U.S. Department of

Homeland Security had proved Al Amiri's removability by clear and

convincing evidence and ordered his removal. Al Amiri had sought

relief from removal by applying for asylum under § 208 of the

Immigration and Nationality Act ("INA"),

,

withholding of removal under INA § 241(b)(3),

(b)(3), and withholding of removal under the CAT, as

implemented by

-.18. But, the IJ rejected each

of these requests.

Al Amiri appealed the IJ's ruling to the BIA, which

affirmed. He now petitions for review of the BIA's decision.

II.

We start with Al Amiri's challenge to the BIA's decision

affirming the IJ's denial of his asylum claim. An applicant for

asylum must satisfy various statutory requirements to secure that

relief. See

(b). Among them is what is known as

the "nexus" requirement, pursuant to which the applicant must show

"that he is unwilling or unable to return to his country of origin

'because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion.'" Singh v. Mukasey,

(1st Cir. 2008) (quoting

(a)(42)(A)).

- 5 - If an applicant can show that he suffered past

persecution, he is entitled to a presumption that his fear of

suffering it in the future is well founded. Carcamo-Recinos v.

Ashcroft,

(1st Cir. 2004). Otherwise, he must

"prove that his fear is both genuine and objectively reasonable."

To show that his fear is objectively reasonable, however, the

asylum applicant need not demonstrate that it is more likely than

not that he will be persecuted. INS v. Cardoza-Fonseca,

(1987) ("One can certainly have a well-founded fear of an

event happening when there is less than a 50% chance of the

occurrence taking place.").

We consider questions of law de novo. Ye v. Lynch,

(1st Cir. 2017). We consider factual findings "under

the deferential 'substantial evidence' standard, reversing only if

a 'reasonable adjudicator would be compelled to conclude to the

contrary.'" Castillo-Diaz v. Holder,

(1st Cir.

2009) (quoting

(b)(4)(B)). In applying that

standard, we look not to isolated pieces of evidence but to the

"record considered as a whole." Sanabria Morales v. Barr,

(1st Cir. 2020) (quoting Thapaliya v. Holder,

(1st Cir. 2014)).

Al Amiri contends that the BIA erred in affirming the

IJ's determination that he could not meet the nexus requirement on

the ground that he had failed to show that the harm he fears he

- 6 - would endure in Iraq would be inflicted on account of his

membership in a particular social group. Al Amiri also contends

that the BIA erred in affirming the IJ's ruling denying his asylum

claim for a separate reason. Here, he contends that the record

fails to support the BIA's affirmance of the IJ's finding that he

did not sufficiently show that he had an objectively reasonable

basis for fearing that he would face harm in Iraq. We address

each of these contentions in turn.

A.

The BIA agreed with the IJ's rejection of Al Amiri's

contention that "Americanized or westernized individuals" in Iraq

constitute a "particular social group." For that reason, the BIA

agreed with the IJ that Al Amiri could not satisfy the nexus

requirement by showing that he feared that he would be harmed in

Iraq based on his membership in that group. The BIA reasoned that

this "proposed social group was vague" and "did not have sufficient

particularity or social distinction," citing to one of this Court's

opinions holding that secularized, westernized Pakistanis do not

constitute a particular group. See Ahmed v. Holder,

(1st Cir. 2010).

The BIA's determination that the IJ correctly ruled that

"Americanized or westernized individuals" in Iraq are not

"sufficiently particularized to constitute a cognizable particular

social group," however, does not in and of itself suffice to

- 7 - support the conclusion that Al Amiri cannot satisfy the nexus

requirement. For, as we will explain, Al Amiri also tied his nexus

showing to his asserted membership in a distinct "particular social

group."

Before the IJ and the BIA, Al Amiri put forth evidence

to show that while he was residing in the United States he had

served as a paid contractor for the U.S. Army during the Iraq War

and, in that capacity, had helped to train its soldiers about Iraqi

culture and customs in preparation for their deployment to Iraq.

He also put forth evidence to show that Iraqis who provided

assistance to the U.S. military in connection with that war

themselves constituted a particular social group and that members

of this group, because they had provided such assistance, were at

risk of harm from not only members of the Iraqi military but also

civilian members of various insurgent groups or militias operating

in Iraq. Based on this evidence, Al Amiri then contended -- as a

distinct ground for his asylum claim -- that the harm to which he

feared he would be subjected if he were removed to Iraq would be

inflicted on him on account of his membership in this group.

Notwithstanding that Al Amiri advanced this contention

below, the BIA did not purport to rule in rejecting his asylum

claim on nexus grounds that Iraqis who had assisted the U.S.

military during the Iraq War did not constitute such a qualifying

group. Thus, the BIA's ruling provides no basis for concluding

- 8 - that Al Amiri's asylum claim comes up short on the ground that he

failed to identify a particular social group to which the harm

that he fears that he would be subjected to in Iraq could be tied.

See Gailius v. INS,

(1st Cir. 1998) (explaining

that the focus of this Court's review is the "grounds invoked by

the agency" and that "[t]he agency's decision cannot be supported

on reasoning that the agency has not yet adopted" (first quoting

SEC v. Chenery Corp.,

(1947); and then quoting

P.R. Sun Oil Co. v. EPA,

(1st Cir. 1993))).

B.

That said, as we have noted, an asylum applicant must

show that he has a reasonable basis for fearing that he would

suffer harm on account of his membership in a particular social

group. Thus, the applicant must show not only that he subjectively

fears being harmed on that basis, but also that it is objectively

reasonable for him to fear such harm. For that reason, even if we

assume that Al Amiri's prior work for the U.S. military made him

a member of a "particular social group," he still must show that

his fear of being harmed in Iraq on account of being in that group

is objectively reasonable.

To make that showing, Al Amiri submitted evidence

recounting instances of the harm that has been done in Iraq to

Iraqis for their past service to the U.S. military during the war.

He contends that this evidence supports a finding that the nature

- 9 - of the threat posed to such persons is widespread and diffuse, as

it emanates from hostility to such persons that is harbored by a

broad range of actors who are not controllable by the Iraqi

government.

Al Amiri's fear of being harmed on this basis, however,

is necessarily a function, at least in part, of whether those in

Iraq from whom he fears harm for his past work for our country's

armed forces would learn of it. It is with respect to Al Amiri's

showing on this score that the BIA held that he did not adequately

establish that he had a reasonable basis for his fear.

The BIA determined in that regard that the IJ made no

clear error in finding that Al Amiri "would not be singled out or

targeted as a person who assisted the U.S. Military" because "only

one neighbor in Iraq knew" about the assistance that he had

provided and "that neighbor supported and assisted him by telling

him to keep quiet about it and not to tell anyone." But, here,

too, we conclude that the BIA's decision affirming the IJ's ruling

cannot be sustained.

Al Amiri does not premise his fear of harm -- as some

unsuccessful asylum seekers have in other cases -- on the potential

discovery by others of beliefs or opinions that were held but never

openly expressed. See, e.g., Zhakira v. Barr,

(1st Cir. 2020) (affirming BIA's denial of asylum seeker's

political-opinion claim where applicant had "taken 'no actual

- 10 - political action'" and "identifie[d] no evidence indicating that

Al-Shabab would be aware of his political views" (emphases added));

Archila v. Holder,

(1st Cir. 2012) (finding

an insufficient nexus between feared persecution and political

opinion opposing guerrilla groups because applicant "offered no

evidence that his resistance was understood by the guerrillas to

be political in nature" (first emphasis added)). Rather, he

premises his fear on the discovery of conduct in which he openly

engaged and that is well documented in official records -- namely,

his paid work for the U.S. government assisting our military during

the Iraq War.

In consequence, as the record clearly demonstrates,

numerous individuals with ties to Iraq know of the assistance that

Al Amiri provided to the U.S. Army during the Iraq War. They

include not only those in the U.S. military with whom he worked

who have returned to Iraq for periods of time, but also members of

his family who are in regular contact with people in the country.

Thus, although we do not dispute that one could

reasonably infer from Al Amiri's testimony that the neighbor in

Iraq whom he told about his past work would be as discreet as he

admonished Al Amiri to be with that information, we must determine

whether substantial evidence supports the BIA's finding that Al

Amiri lacked a reasonable basis for his fear by considering the

record "as a whole." Sanabria Morales,

(quoting

- 11 - Thapaliya,

). We thus must widen the lens and look

beyond Al Amiri's testimony regarding the one person in Iraq in

whom he confided about his past service to this country. When we

do, we are compelled to hold that the record fails to support the

conclusion that Al Amiri could not reasonably fear that other

individuals in Iraq would learn of his prior work, given the broad

range of persons with ties to Iraq who already know of it.

Nor does the BIA's invocation of Y.C. v. Holder,

(2d Cir. 2013), support our reaching a different

conclusion. There, the Second Circuit denied claims for relief

from removal brought by two Chinese noncitizens, Y.C. and X.W, on

the ground that they had failed to make sufficient showings that

their activism in the United States in support of pro-democracy

efforts in their home country could become known to Chinese

authorities, such that they could reasonably fear being persecuted

by the Chinese government for their prior activism.

at 333-

37. But, the differences between that case and this one are

substantial.

Y.C., we note, predicated her fear that her activism

would be discovered by the Chinese government on two things: a

single article she had written more than eight years earlier in a

publication in the United States and her past participation in

candlelight vigils in front of the Chinese Embassy in New York.

. However, no evidence indicated that the

- 12 - publication in which the single article appeared circulated in

China, and only an "unsworn" affidavit from her husband supported

her contentions that she had participated in such vigils and that

Chinese authorities knew that she had.

. Thus, the

fact that the Second Circuit deemed Y.C.'s basis for fearing harm

too "speculative" does not lead us to conclude that the BIA was

permitted to reach a similar judgment here, given the record in

this case.

Moreover, while X.W. predicated his fear on activism

that was better documented than Y.C.'s, he sought withholding of

removal, not asylum.

. He thus was obliged to make

a more stringent showing about the probability of his past conduct

being discovered by his putative persecutors than Al Amiri is. Al

Amiri needs to show only that a potential persecutor "could become

aware" of the trait that could give rise to persecution. Matter of

Mogharrabi,

(B.I.A. 1987). The Second

Circuit rejected X.W.'s claim because it determined that such

discovery was not "likely." See Y.C.,

; see also

(discussing the "higher burden of proof" that applies

to withholding of removal claims relative to asylum claims). Thus,

in addition to the fact that the Second Circuit was assessing the

chances that a petitioner's prior actions would be discovered by

a government official -- rather than, as in this case, a diffuse

set of official and unofficial actors -- it was applying a much

- 13 - more demanding standard of proof than applies to Al Amiri's asylum

claim.2

C.

There is one other ground on which the BIA relied in

affirming the IJ's denial of Al Amiri's asylum claim. This ground,

too, concerned his failure to show that his fear of harm was

objectively reasonable.

Here, the BIA focused on Al Amiri's "repeated,

voluntary, and somewhat lengthy returns to Iraq," which it found,

as had the IJ, "severely undercut any objective fear of harm."

The BIA emphasized in this regard that the trips occurred after Al

Amiri's earlier asylum application, which he had filed in 2011 and

in which he also had claimed a fear of returning to Iraq.

But, Al Amiri's most recent trip to Iraq lasted six weeks

and was undertaken to visit his ailing grandmother. The record

does not show that his earlier trips were any longer, and it shows

that at least one was for the similar purpose of paying respects

to an ill or deceased family member. The fact that he was able to

conceal his employment history during time-limited trips to Iraq

2 The BIA did not find that, even if the fact of Al Amiri's prior work for the U.S. military did become known in Iraq by persons other than his neighbor, he still would have no reasonable basis for fearing harm. Given that the record reveals that the threat faced by those in Iraq who have provided such service is diffuse in nature, we are dubious the record would support such a finding in any event.

- 14 - does not mean that he will be able to do so for months and years

on end. Especially given that neither the IJ nor the BIA disputed

Al Amiri's assertion that he subjectively understood the risk of

disclosure to be appreciably greater if he were to be required to

take up residence in Iraq than it was during controlled visits

with family, we do not see what basis there is for concluding that

it was objectively unreasonable for him to fear that he could not

protect himself from the harm that disclosure could cause him if

he were removed to that country. Cf. Mukamusoni v. Ashcroft,

(1st Cir. 2004); see also Tarraf v. Gonzales,

(7th Cir. 2007) (noting that "[t]here well may be

circumstances when a person who legitimately fears persecution

nevertheless might elect to return temporarily to his home country"

because, for example, "health conditions of family members and

other major life events might drive a person to choose to take

certain risks").

D.

For all these reasons, we conclude that the BIA's basis

for upholding the IJ's decision to deny Al Amiri's asylum claim

cannot be sustained, and so we vacate it. Moreover, because we so

hold, we also must vacate the BIA's decision to affirm the IJ's

denial of Al Amiri's claim for withholding of removal, as the BIA

premised that ruling on its affirmance of the IJ's denial of his

asylum claim.

- 15 - III.

We have left to address, then, only the BIA's denial of

Al Amiri's claim for relief under the CAT. As we have already

explained, to show a well-founded fear of persecution sufficient

to ground an asylum claim, a petitioner need not show even by

preponderance of the evidence that the persecution will occur.

Cardoza-Fonseca,

. By contrast, however, "[a]

petitioner seeking CAT protection must show 'it is more likely

than not' that he would be subject to torture 'by or with the

acquiescence of a government official.'" Aldana-Ramos v. Holder,

(1st Cir. 2014) (quoting Nako v. Holder,

(1st Cir. 2010)).

The BIA held here that the IJ did not clearly err in its

finding as to the inadequacy of Al Amiri's showing "with regard to

the probability of torture." Therefore, the BIA concluded there

was "no reason to disturb" the holding that Al Amiri "did not

demonstrate that it is more likely than not that he would suffer

abuse amounting to torture . . . by or with the consent or

acquiescence of public officials."

Al Amiri responds by pointing to evidence in the record

supporting his assertion that he could suffer abuse amounting to

torture either because of his Americanized mannerisms or due to

his work for the U.S. military. But, the proffered evidence is

not of a sort that could support the conclusion that "any

- 16 - reasonable adjudicator would be compelled to conclude" that Al

Amiri has shown that it is more likely than not that he will suffer

such harm. See

(b)(4)(B). Accordingly, we cannot

reverse the BIA's determination that the IJ's holding on this front

was not clear error, and so we uphold the BIA's ruling affirming

the IJ's denial of Al Amiri's CAT claim.

IV.

Al Amiri's petition for review is granted in part, as we

vacate the BIA's decision as to his claims for asylum and

withholding of removal and remand for further proceedings

consistent with this opinion. With respect to his challenge to

the BIA's affirmance of the IJ's denial of his CAT claim, however,

his petition for review is denied.

- 17 -