17-3935 Akter v. Barr BIA Poczter, IJ A206 297 955/956

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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of October, two thousand nineteen. 5 6 PRESENT: 7 DENNY CHIN, 8 SUSAN L. CARNEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MOKSENA AKTER, MOHAMMAD SAIDUR 14 RAHMAN, 15 Petitioners, 16 17 v. 17-3935 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Amy Nussbaum Gell, Gell & Gell, 25 New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Song Park, 29 Senior Litigation Counsel; Surell 30 Brady, Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 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

4 is GRANTED IN PART and DENIED IN PART.

5 Petitioners Moksena Akter and Mohammad Saidur Rahman,

6 natives and citizens of Bangladesh, seek review of a November

7 9, 2017, decision of the BIA affirming a March 1, 2017,

8 decision of an Immigration Judge (“IJ”) denying Akter’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Moksena

11 Akter, Mohammad Saidur Rahman, No. A 206 297 955/956 (B.I.A.

12 Nov. 9, 2017), aff’g No. A 206 297 955/956 (Immig. Ct. N.Y.

13 City Mar. 1, 2017). We assume the parties’ familiarity with

14 the underlying facts and procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and BIA’s decisions “for the sake of

17 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

524, 528 (2d Cir. 2006). The applicable standards of review

19 are well established. See

(b)(4)(B); Yanqin

20 Weng v. Holder,

(2d Cir. 2009).

21 First, we decline to remand based on intervening caselaw,

22 as requested by Akter. The decision cited by Akter is not

23 relevant to her case because Akter did not identify a new 2 1 group on appeal. See Matter of W-Y-C- & H-O-B-, 27 I. & N.

2 Dec. 189, 191-93 (BIA 2018).

3 Asylum and Withholding of Removal

4 To establish eligibility for asylum and withholding of

5 removal, “the applicant must establish that race, religion,

6 nationality, membership in a particular social group, or

7 political opinion was or will be at least one central

8 reason for persecuting the applicant.” 8 U.S.C.

9 § 1158(b)(1)(B)(i); id. § 1231(b)(3)(A); see also Matter of

10 C-T-L-,

(BIA 2010). Asylum or

11 withholding “may be granted where there is more than one

12 motive for mistreatment, as long as at least one central

13 reason for the mistreatment is on account of a protected

14 ground.” Acharya v. Holder,

(2d Cir.

15 2014) (internal quotation marks omitted). An applicant

16 “must provide some evidence of [a persecutor’s motives],

17 direct or circumstantial.” INS v. Elias-Zacarias,

478, 483 (1992); see also Manzur v. U.S. Dep’t of Homeland

19 Sec.,

(2d Cir. 2007). To demonstrate

20 that past persecution or a well-founded fear of future

21 persecution is on account of political opinion, the

22 applicant must “show, through direct or circumstantial

23 evidence, that the persecutor’s motive to persecute arises 3 1 from the applicant’s political belief,” rather than merely

2 by the persecutor’s own opinion. Yueqing Zhang v.

3 Gonzales,

(2d Cir. 2005) (emphasis

4 added). The persecution may be on account of an opinion

5 imputed to the applicant by the persecutor, regardless of

6 whether this imputation is accurate. See Chun Gao v.

7 Gonzales,

(2d Cir. 2005).

8 Substantial evidence supports the IJ’s determination

9 that Akter failed to demonstrate that she was harmed by her

10 teacher or a man named Sumon on account of a protected ground.

11 See Edimo-Doualla v. Gonzales,

(2d Cir.

12 2006) (applying substantial evidence standard to nexus

13 determination). There is no direct or circumstantial

14 evidence that Akter’s teacher or Sumon were motivated to harm

15 her on account of her proposed social groups. The evidence,

16 instead, supports the IJ’s conclusion that Sumon and Akter’s

17 teacher targeted Akter because they were attracted to her.

18 Substantial evidence also supports the agency’s

19 determination that Akter was not harmed by Awami League (“AL”)

20 members on account of an imputed political opinion or

21 membership in her proposed social groups. Based on Akter’s

22 testimony, the IJ reasonably concluded that the AL members’

23 motivation for harming Akter was her social popularity. 4 1 There was no evidence that AL members targeted Akter based on

2 her membership in the social group of “powerful women who are

3 threatened.” Akter also did not testify that the AL members

4 mentioned her activism or participation in the college drama

5 organization when they harmed her, and she provided limited

6 testimony that she was a community activist.

7 Nor did Akter establish that she was targeted for a

8 political opinion, imputed or otherwise. Akter did not

9 testify that the AL supporters made any statements regarding

10 her neutrality. She also did not establish that other

11 individuals were targeted by AL supporters because they did

12 not join a political party, which is circumstantial evidence

13 that the AL was not targeting people for neutrality. The

14 record does not compel the conclusion that AL supporters

15 attacked Akter because of her political opinion of

16 neutrality, rather than because of her refusal to join their

17 political party and their desire to grow their membership

18 through her popularity. See Elias-Zacarias, 502 U.S. at 481-

19 83 (holding that claim of forced recruitment was not

20 persecution based on political opinion). Thus, substantial

21 evidence supports the IJ’s determination that Akter did not

22 establish that AL supporters had or would harm her based on

23 her political opinion or membership in a social group, rather 5 1 than because of her popularity and their desires to increase

2 their membership. See id. at 483. This nexus determination

3 is dispositive of both asylum and withholding of removal.

4

(b)(1)(B)(i), 1231(b)(3)(A).

5 CAT

6 “[T]he CAT expressly prohibits the United States from

7 returning any person to a country in which it is more likely

8 than not that he or she would be in danger of being subjected

9 to torture.” Khouzam v. Ashcroft,

(2d Cir.

10 2004) (internal quotation marks omitted); see also 8 C.F.R.

11 § 1208.16(c)(2)(“[T]he burden of proof is on the applicant

12 . . . to establish that it is more likely than not that he or

13 she would be tortured if removed to the proposed country of

14 removal.”).

15 Torture is defined as any act by which severe pain 16 or suffering, whether physical or mental, is 17 intentionally inflicted on a person for such 18 purposes as obtaining from him or her or a third 19 person information or a confession, punishing him 20 or her for an act he or she or a third person has 21 committed or is suspected of having committed, or 22 intimidating or coercing him or her or a third 23 person, or for any reason based on discrimination 24 of any kind, when such pain or suffering is inflicted 25 by or at the instigation of or with the consent or 26 acquiescence of a public official or other person 27 acting in an official capacity. 28 29

(a)(1). The agency must consider “all

30 evidence relevant to the possibility of future torture,” 6 1 including: “[e]vidence of past torture,” evidence regarding

2 the possibility of internal relocation, “[e]vidence of gross,

3 flagrant, or mass violations of human rights,” and “[o]ther

4 relevant information regarding conditions in the country of

5 removal.”

(c)(3)(i)-(iv). We review the

6 agency’s determination regarding the likelihood of torture

7 for substantial evidence. See Hui Lin Huang v. Holder, 677

(2d Cir. 2012) (“A determination of what will

9 occur in the future and the degree of likelihood of the

10 occurrence has been regularly regarded as fact-finding . . .

11 .”); see also Joaquin-Porras v. Gonzales,

, 181

12 (2d Cir. 2006) (reviewing findings of fact regarding CAT claim

13 for substantial evidence).

14 The agency did not adequately explain its denial of CAT

15 protection. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

(2d Cir. 2006) (the agency commits legal error

17 if its decision is made “without rational justification” or

18 is “based on a legally erroneous standard.”). “[W]e require

19 a certain minimum level of analysis from the IJ and BIA

20 opinions . . . , and indeed must require such if judicial

21 review is to be meaningful.” Poradisova v. Gonzales, 420

(2d Cir. 2005). “We also require some indication

7 1 that the IJ considered material evidence supporting a

2 petitioner’s claim.”

3 The IJ denied asylum and withholding of removal solely on

4 nexus grounds and noted that Akter no longer had a well-

5 founded fear of future harm by Sumon. The IJ did not address

6 whether Akter had a well-founded fear of future persecution

7 by AL supporters. Thus, it does not follow that because the

8 IJ denied asylum based on a lack of nexus that the IJ was

9 also required to deny Akter’s CAT claim, which does not

10 require nexus to a protected ground. Cf. Paul v. Gonzales,

11

(2d Cir. 2006). Moreover, the fact that

12 Akter had not been harmed in four years is of little probative

13 value because Akter was not in Bangladesh for most of the

14 four-year period. The IJ also did not provide any

15 explanation for her finding that Akter would not be tortured

16 by a government official or with the acquiescence of a

17 government official. Accordingly, remand is warranted for

18 the agency to provide further explanation regarding its

19 denial of Akter’s CAT claim. See Ivanishvili v. U.S. Dep’t

20 of Justice,

(2d Cir. 2006) (finding that

21 the “IJ . . . did not evaluate, or even meaningfully

22 acknowledge” testimony and evidence favorable to the

8 1 petitioner, “and we must therefore give the IJ [an]

2 opportunity to do so”).

3 For the foregoing reasons, the petition for review is

4 DENIED in part as to asylum and withholding of removal and

5 GRANTED in part as to CAT relief and the case is REMANDED to

6 the BIA for further proceedings consistent with this order.

7 As we have completed our review, any stay of removal that the

8 Court previously granted in this petition is VACATED, and any

9 pending motion for a stay of removal in this petition is

10 DISMISSED as moot. Any pending request for oral argument in

11 this petition is DENIED in accordance with Federal Rule of

12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13 34.1(b).

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court

9