Baharon v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALI HARWAN ALI BAHARON, 

Petitioner,

v.

 No. 08-1700

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals.

Argued: September 24, 2009

Decided: November 24, 2009

Before MOTZ and GREGORY, Circuit Judges,

and Damon J. KEITH, Senior Circuit Judge of the

United States Court of Appeals for the Sixth Circuit,

sitting by designation.

Petition for review granted and remanded by published opin-

ion. Judge Gregory wrote the opinion, in which Judge Motz

and Senior Judge Keith joined.

COUNSEL

ARGUED: Jason Alexander Dzubow, MENSAH, SHOE-

MAKER & DZUBOW, PLLC, Washington, D.C., for Peti-

2 BAHARON v. HOLDER

tioner. Theo Nickerson, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: Gregory G. Katsas, Assistant Attorney General, Wil-

liam C. Peachey, Assistant Director, Office of Immigration

Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

OPINION

GREGORY, Circuit Judge:

Ali Harwan Ali Baharon ("Baharon") petitions this Court to

review a final removal order by the Board of Immigration

Appeals ("BIA") denying his asylum application and ordering

him removed to Yemen. Baharon contends that both the BIA

and the Immigration Judge ("IJ") erred in finding that he was

not subjected to past persecution in Yemen and that he lacked

a well-founded fear of future persecution were he to return.

We agree that Baharon was subjected to past persecution. We

therefore grant his petition for review and remand for the BIA

to reconsider whether — in light of Baharon’s demonstrated

past persecution — he has a well-founded fear of future perse-

cution.

I.

A.

Baharon was born in Sanaa, Yemen in 1986. He is

Hadrami, an ethnic minority that lives primarily in southern

Yemen. As a Hadrami, Baharon testified that he was repeat-

edly subjected to discrimination that made it difficult for him

to get a national identification card, a driver’s license, or even

go to public school. Along with his brother, father, and uncle,

Baharon was active in the Sons of Hadramut ("SOH"), a

group that provides services to and advocates on behalf of

Hadramis.

BAHARON v. HOLDER 3

On April 8, 2004, Baharon and his brother were leaving the

SOH building when they were stopped and arrested by

Yemeni police. The police drove them to an unmarked build-

ing and placed each in separate cells. Baharon was then sub-

jected to several rounds of increasingly violent interrogation

regarding his work for SOH.

During the first round of questioning, Baharon’s interroga-

tor threw water on him, accused him of trying to secede from

Yemen, and hit him in the face. The officer also asked

Baharon several questions about his uncle who had disap-

peared months earlier. From the questions, Baharon inferred

that his uncle had been kidnapped by security officials and

was being held for his role in SOH. Hours later, another offi-

cer told Baharon that he would get no water during his stay

if he did not sign papers implicating his uncle in subversive

activities, which Baharon refused to do. The next morning,

two officers gave Baharon breakfast and demanded that he

talk about his involvement in SOH. When Baharon’s answers

were not what the officers were looking for, one of them

struck Baharon in the face. The other then began beating

Baharon with a stick. He first hit Baharon in the back, knock-

ing him to the ground. Once Baharon was on the ground, the

officer continued to hit him at least three or four more times.

Baharon later described the pain as "excruciating." (J.A. 122.)

The beatings left him with several bruises across his back.

When Baharon would not confess to secessionist activities,

the officer from the previous day returned and told Baharon

that if he did not sign inculpatory papers, then he would "dis-

appear." (J.A. 123.) Baharon again refused. The next day,

officers returned to Baharon’s cell. They told him that if they

ever saw Baharon near the SOH building again, he would "be

disappeared" and that if he told his family what happened to

him, the police would hurt him and his family. (J.A. 123-24.)

Baharon was then released. His detention lasted three days.

Once released, Baharon discovered that his brother had

been subjected to even harsher treatment. He had been

4 BAHARON v. HOLDER

punched, kicked, dragged, hit with a rifle butt, and threatened

with a pistol. At one point, he lost consciousness during the

beating. Baharon’s brother was told that if he did not talk, he

would be killed. The brothers returned home and told their

father what happened. This led the father to investigate further

what had happened to Baharon’s uncle. After determining that

the uncle had been kidnapped by security forces, the father

paid a five-thousand dollar bribe to secure his release. The

uncle had severe injuries, including several broken bones and

blood clots in his chest. These injuries required him to be hos-

pitalized for two months.

Baharon remained in Yemen for four months after his

detention. During that time, he was monitored by police and

did not go back to the SOH building. Baharon and his brother

later secured passports and left Yemen for the United States.

Since Baharon left, the police have periodically detained his

father to ask him where Baharon is and about his own SOH

activities.

B.

Baharon entered the United States on August 5, 2004 as a

B-2 nonimmigrant with authorization to remain until February

4, 2005. On August 5, 2005, he was served with a Notice to

Appear, charging him with removability pursuant to the

Immigration and Nationality Act ("INA"), 8 U.S.C.

§ 1227(a)(1)(B) (2006). Baharon conceded removability

before the IJ, but requested asylum, withholding of removal,

and protection under the Convention Against Torture

("CAT").

At the hearing, Baharon described his detention and that of

his brother and uncle. He also introduced a 2005 State Depart-

ment Report, which found that Yemeni "[s]ecurity forces con-

tinued to arbitrarily arrest and detain a number of persons

with views critical of the government." (J.A. 242.) The report

BAHARON v. HOLDER 5

also stated that police in Yemen "tortured and abused persons

in detention." (J.A. 235.)

The IJ determined that Baharon was credible; however, she

denied his petition for asylum, withholding of removal, and

CAT protection. Specifically, she found that the three-day

detention did not amount to past persecution and that Baharon

could not establish a well-founded fear of persecution if he

returned to Yemen. (J.A. 38.) The BIA adopted and affirmed

the IJ’s decision and added that Baharon did not establish

past-persecution under this Court’s decision in Li v. Gonzales,

405 F.3d 171 (4th Cir. 2005). (J.A. 2.) Baharon timely

appealed the finding that he was ineligible for asylum because

he was not subjected to past persecution and lacked a well-

founded fear of future persecution.

II.

We will uphold the BIA’s decision that an alien is ineligi-

ble for asylum unless the determination is "‘manifestly con-

trary to the law and an abuse of discretion.’" Li v. Gonzales,

405 F.3d 171, 175 (4th Cir. 2005) (quoting 8 U.S.C.

§ 1252(b)(4)(D)). The BIA’s determination regarding asylum

eligibility will be reversed only if the evidence is so strong

that no reasonable factfinder could agree with its conclusion.

Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999). Where,

as here, the BIA adopts and affirms the IJ’s decision but gives

additional reasons for doing so, we review both opinions.

Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007).

III.

On appeal, Baharon contends that the IJ and BIA erred by

limiting their analysis of past persecution to the three days

Baharon spent in detention. He argues that both the IJ and

BIA should have considered the fear and intimidation to

which Baharon was subjected through the threats to his safety

and the persecution of his relatives. Had the IJ and BIA done

6 BAHARON v. HOLDER

so here, Baharon insists, they would have found him to be a

victim of past persecution and he would have been entitled to

a rebuttable presumption of a well-founded fear of future per-

secution. We agree.

A.

To establish asylum eligibility under the INA, the petitioner

must show either that he was subjected to past persecution or

that he has a "well-founded" fear of future persecution "on

account of race, religion, nationality, membership in a partic-

ular social group, or political opinion."1 8 C.F.R.

§ 208.13(b)(1) (2009). An alien who establishes past persecu-

tion is entitled to a rebuttable presumption that he has a well-

founded fear of future persecution. Id.

"‘Persecution involves the infliction or threat of death, tor-

ture, or injury to one’s person or freedom, on account of one

of the enumerated grounds in the refugee definition.’" Li v.

Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (quoting Kon-

dakova v. Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004)). A key

difference between persecution and less-severe mistreatment

is that the former is "systematic" while the latter consists of

isolated incidents. Bocova v. Gonzales, 412 F.3d 257, 263 (1st

Cir. 2005). Violence or threats to one’s close relatives is an

important factor in deciding whether mistreatment sinks to the

level of persecution. See Lin v. Mukasey, 517 F.3d 685, 689

(4th Cir. 2008) (describing how Chinese officials threatened

to harm in-laws when deciding that petitioner had been sub-

jected to past persecution); Belbruno v. Ashcroft, 362 F.3d

272, 284-85 (4th Cir. 2004) (considering the mistreatment to

which petitioner’s husband and other family members were

subjected for the husband’s political activities in deciding

whether or not petitioner was subjected to past persecution);

Gonahasa v. INS, 181 F.3d 538, 540 (4th Cir. 1999) (noting

1

The Government apparently concedes that any persecution inflicted on

Baharon was due to his pro-Hadrami political opinions.

BAHARON v. HOLDER 7

BIA’s finding that petitioner was subjected to past persecution

in Uganda where, among other things, police came to his

home and beat up his wife while threatening to kill him). This

is especially so where the harm inflicted on family members

adds immediacy and severity to threats directed at petitioner,

making it more reasonable for the petitioner to fear that he

will suffer the same fate. See Gonahasa, 181 F.3d at 540;

Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en

banc) (finding that "similarly situated" friends and relatives’

treatment is relevant when assessing whether petitioner’s fear

is well-founded); Poradisova v. Gonzales, 420 F.3d 70, 79-81

(2d Cir. 2005) (holding that IJ erred when it did not consider

the "cumulative" effect of each family member’s persecution

on the other and when it failed to consider evidence of what

happened to the family’s friends as evidence of what might

happen to it).

The IJ and BIA erred by reducing Baharon’s treatment to

a single, three-day detention, despite crediting his testimony

as credible. Not only did Yemeni police detain and beat

Baharon for his work with SOH causing "excruciating" pain,

but they threatened that he would "disappear" and that they

would hurt him again if he continued to associate with SOH.

The possibility that the threat of disappearance would come

true was made all the more likely by the uncle’s own disap-

pearance. Li’s dictum — referenced by the BIA — that courts

"have been reluctant to categorize detentions unaccompanied

by severe physical abuse or torture as persecution," 405 F.3d

at 177, is inapposite where, as here, detention is one of many

incidents that in the aggregate constitute persecution.2 See

2

We also note that our discussion in Gonahasa that petitioner was not

entitled to asylum under a subsection of the applicable regulation, 8 C.F.R.

§ 208.13(b)(1)(iii)(A) (2009), has no bearing on this case. We stated in

Gonahasa that where petitioner established past persecution, but the gov-

ernment rebutted the presumption of a well-founded fear of future perse-

cution, he was not entitled to asylum based on the severity of past

persecution alone because § 208.13(b)(1)(iii)(A) was reserved for Holo-

8 BAHARON v. HOLDER

Gonahasa, 181 F.3d at 540 (past persecution established by

showing that police detained petitioner and then later threat-

ened him and beat his wife); Poradisova, 420 F.3d at 79-81.

When the Yemeni authorities detained Baharon and then viv-

idly threatened his future safety, they attacked his security and

freedom in precisely the way that Li found Congress intended

the INA to protect against. See 405 F.3d at 177 (describing

threats that constitute persecution under the statute). Any

inference that the police’s threat that Baharon would "be dis-

appeared" was idle chatter, which a reasonable factfinder

could then ignore, should have been eliminated by the fact

that the threatened-conduct actually happened to Baharon’s

uncle. See Poradisova, 420 F.3d at 79-81.

We are acutely aware that our job as a reviewing court is

not to reweigh the evidence before the IJ. Bocova v. Gonzales,

412 F.3d 257, 264 (1st Cir. 2005). It is, however, our respon-

sibility to ensure that unrebutted, legally significant evidence

is not arbitrarily ignored by the factfinder. See Haoua v. Gon-

zales, 472 F.3d 227, 232 (4th Cir. 2007) (IJ’s findings must

be based on the record and not "speculation and conjecture").

Those who flee persecution and seek refuge under our laws

have the right to know that the evidence they present of mis-

caust survivors, survivors of the Cambodian genocide, and other extreme

cases. See 181 F.3d at 544 (quoting Bucur v. INS, 109 F.3d 399, 405 (7th

Cir. 1997)). Baharon does not contend that he is entitled to asylum based

solely on the severity of his persecution. He contends only that he was

subjected to past persecution, and that this entitles him to a presumption

of a well-founded fear of future persecution under § 208.13(b)(1). Unlike

in Gonahasa, the Government here has not yet presented evidence suffi-

cient to overcome a finding of past persecution and the resulting presump-

tion of future persecution. Baharon, therefore, need not show that the

abuse to which he was subjected was so deplorable "that it would be inhu-

mane" to return him to Yemen, even if he lacked a well-founded fear of

future persecution. Gonahasa, 181 F.3d at 544. Neither Gonahasa nor any

other case of which we are aware supports the proposition that one need

be a victim of a uniquely sadistic regime to establish past persecution in

the first instance.

BAHARON v. HOLDER 9

treatment in their home country will be fairly considered and

weighed by those who decide their fate. This did not occur

here. Having established in the record that Baharon was sub-

jected to the type of abuse that, on the whole, constitutes per-

secution, the IJ and BIA were not then free to base their

decision on only isolated snippets of that record while disre-

garding the rest. See SEC v. Chenery Corp., 318 U.S. 80, 94

(1943) (requiring that "the grounds upon which the adminis-

trative agency acted be clearly disclosed and adequately sus-

tained"); Zuh v. Mukasey, 547 F.3d 504, 514 (4th Cir. 2008)

(reviewing court must "ensur[e] adherence to law, proper sup-

port of findings in the record, and the considered and proper

exercise of discretion"); Poradisova, 420 F.3d at 79-80 (find-

ing that IJ erred by analyzing incidents of persecution estab-

lished by the record out of context and in isolation). To do so

was an abuse of discretion. It is clear to us that had the IJ and

BIA properly considered the evidence before them, they

would have concluded that the Yemeni police engaged in a

"systematic" attack on Baharon’s freedom, security, and bod-

ily integrity. See Bocova, 412 F.3d at 263. We are therefore

compelled to reverse the BIA’s determination that Baharon

was not subjected to past persecution.

B.

Because we hold that Baharon proved that he was subjected

to past persecution in Yemen, he is entitled to the presump-

tion of a well-founded fear of future persecution, which would

make him eligible for asylum. 8 C.F.R. § 208.13(b)(1) (2009).

We do not decide whether the Government can rebut this pre-

sumption, and instead remand to the BIA to reconsider the

question under the proper presumption. See INS v. Ventura,

537 U.S. 12, 16-17 (2002) (per curiam). Consistent with our

above holding, we expect that on remand the BIA and IJ will

consider all relevant evidence presented by both parties when

deciding whether or not the Government can rebut Baharon’s

claim.

10 BAHARON v. HOLDER

IV.

For the above reasons, we grant Baharon’s petition for

review and remand to the BIA to determine whether the Gov-

ernment can overcome the presumption that Baharon has a

well-founded fear of future persecution.

PETITION FOR REVIEW GRANTED AND REMANDED