Mohamed Haider v. Eric H. Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0031p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MOHAMED HAIDER,

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Petitioner,

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No. 08-4010

v.

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Respondent. -

ERIC H. HOLDER, JR.,

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On Petition for Review from the

Board of Immigration Appeals.

No. A96 163 022.

Argued: October 15, 2009

Decided and Filed: February 10, 2010

*

Before: BOGGS, MOORE, and GIBSON, Circuit Judges.

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COUNSEL

ARGUED: Scott Bratton, MARGARET WONG & ASSOCIATES CO., LPA,

Cleveland, Ohio, for Petitioner. Nehal H. Kamani, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Scott Bratton,

MARGARET WONG & ASSOCIATES CO., LPA, Cleveland, Ohio, for Petitioner.

Nehal H. Kamani, Aviva L. Poczter, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

MOORE, J., delivered the opinion of the court, in which GIBSON, J., joined.

BOGGS, J. (pp. 19-22), delivered a separate dissenting opinion.

*

The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the

Eighth Circuit, sitting by designation.

1

No. 08-4010 Haider v. Holder Page 2

_________________

OPINION

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KAREN NELSON MOORE, Circuit Judge. Mohamed Haider (“Haider”)

petitions this court for review of the order of the Board of Immigration Appeals (“BIA”)

denying his application for withholding of removal under the Immigration and

Nationality Act (“INA”) and the United Nations Convention Against Torture (“CAT”).

The Immigration Judge (“IJ”) denied relief and the BIA affirmed on the ground that

Haider could not prove that his life or freedom would be threatened on account of a

protected ground or that he would be tortured in Algeria. Having reviewed the evidence

carefully, we hold that it compels a finding that Algerian police abused Haider because

of a suspected political affiliation and that the abuse constituted persecution. We

therefore GRANT the petition for review and REMAND with respect to Haider’s INA

claim. At the same time, we DENY the petition with respect to his claim under the

CAT.

I. BACKGROUND

A. Factual Background

Haider was born in Algeria in 1977 and lived there until 2000, when he moved

to France. On September 8, 2001, he entered the United States with a fake French

passport. On December 28, 2002, he married Lisa Upshaw, a U.S. citizen. On January

6, 2003, he filed an application for asylum, withholding of removal under the INA, and

withholding of removal under the CAT. His application remained open for five years,

during which time he secured a visa through his wife, applied for and was denied

adjustment of status, received a notice to appear based on his 2001 illegal entry, and was

then detained pending removal. At an April 8, 2008 hearing on his asylum and

withholding claims, Haider testified to the following experiences with terrorists and

police:

No. 08-4010 Haider v. Holder Page 3

The GIA. Haider dropped out of school in 1995 because terrorist activity in the

area made it too dangerous to continue. He began working for his uncle, a clothing

seller who often traveled to Morocco, Tunisia, and Libya to buy clothes. That year, an

anti-government terrorist group known as the GIA1 began trying to recruit Haider to spy

on local police. The GIA threatened to hurt his family, including a second uncle who

was a police officer, if he refused. He put them off with excuses, relenting only once.2

In 1996 or 1997, the GIA shot and killed Haider’s cousin, who worked as a

mechanic, for refusing to give them a car. In 1997, the GIA murdered Haider’s friend,

who had worked for the police for six months, in front of him at a shopping plaza. They

said to Haider, “[i]t’s been a while, we haven’t seen you, how’s Libya?” to show that

they remembered him. Joint Appendix (“J.A.”) at 167-68. They then kicked his friend

to the ground, shot him in the leg, and shot him twice in the chest or head. The GIA

continued trying to recruit Haider through 1998.

The Police. The police often searched Haider and accused him of working with

terrorists. In 1996, they stopped him as he returned home, searched him, and said “you

work for the terrorists.” J.A. at 144. In May 1996, four officers searched him and his

luggage, pulled down his pants, and “started doing stuff.” J.A. at 145. They put a large

gun into his buttocks, asked tauntingly “how do you like that?” and demanded that he

admit to aiding the terrorists. J.A. at 145-46. When they released him, they warned “it’s

going to be the same thing” the next time. J.A. at 146.

That summer, officers in another area stopped Haider and two friends for

questioning. The police detained him for five hours, took his clothes off, spat in his face,

and repeatedly struck him in his back with a gun, causing bruising. They accused him

of being a terrorist spy and promised worse abuse if they ever saw him again.

1

GIA stands for Armed Islamic Group, from the French “Groupe Islamique Armé.” After the

military seized control of the Algerian government in 1991 to prevent the rise of an Islamic political party,

the GIA sprung up in response and launched terrorist attacks on government institutions and officials

throughout the 1990s.

2

Haider watched an area and reported back that he had seen nothing. The government argued

below that this act made him ineligible for relief. Neither the IJ nor the BIA addressed this point, and the

government has not raised it in its brief on appeal.

No. 08-4010 Haider v. Holder Page 4

In February or March 1997, police accosted him on the street and struck him four

times in his right ear. The officers put him against a wall, searched him and his luggage,

and stole some of his merchandise. One of them also pulled down Haider’s pants, put

his hands on and in Haider’s buttocks, and did the same with a large gun. Again, they

threatened him with worse the next time. Two months later, Haider went to see a doctor

about the flu, and the doctor informed him he had blood in his right ear.

On July 8, 1997, officers who had abused Haider in the past ran over his brother,

killing him. The police, who were responding to a reported car bomb, claimed the

incident was an accident. Haider believes that they killed his brother on purpose and

tried to cover it up. The police tried to get Haider to sign a statement, but he refused and

convinced his family to file suit. The police then retaliated against Haider, threatening

him on at least twenty occasions. In October 1997, an officer struck Haider in his back

and shoulder three times with a gun and warned him not to “come around us anymore.”

J.A. at 165-66. The police also detained his father for two weeks, during which time

they removed his clothes, beat him severely, and demanded that he drop the suit.

Haider’s family had to take his father to a mental hospital and put him on medication.

In addition, the police tormented Haider’s mother, visiting her over fifty times and

threatening to take Haider. In 1999, police officers visited Haider’s mother and asked,

“where is your son, we haven’t seen him. Is he working for the GIA, the terrorists? We

thought so . . . .” J.A. at 173.

During his final years in Algeria, Haider moved between relatives to avoid the

police. He illegally entered France in 2000 and the United States in 2001, arriving just

before the attacks of September 11th. In January 2007, Haider’s mother visited the

United States. She told him that the police had asked about him in 2002 and that the

GIA was still active in their area.

No. 08-4010 Haider v. Holder Page 5

B. Administrative Rulings and Petition for Review

The IJ delivered his decision orally. First, he found Haider’s asylum claim time-

barred. An asylum applicant must show by clear and convincing evidence that he filed

within one year of arrival in the United States, a period that can be extended due to

extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). Haider filed his application

almost sixteen months after entering the country. The IJ found that his fear in light of

post-September-11th government suspicion of Muslim men explained why he did not

file immediately, but not why he waited sixteen months.

Second, the IJ discussed Haider’s credibility. He found nothing in Haider’s

demeanor to indicate deception and described the testimony as “fairly detailed and, for

the most part . . . plausible.” J.A. at 80. However, he found Haider’s failure to include

the police incidents in his application “troubling.” J.A. at 81. The IJ was “not really

persuaded” by Haider’s explanation that he had been too embarrassed to include this

information, as Haider seemed to testify to the events without difficulty. J.A. at 81. The

IJ also noted the absence of corroborating statements from family members or a doctor

and found it “curious” that Haider reported no contacts with the GIA or police after

1999. J.A. at 82. He concluded that the sum of these concerns “detracts from the

respondent’s credibility . . . meaning that the Court will give less weight to the

respondent’s testimony.” J.A. at 83. The IJ did not say that he believed some parts of

the testimony but not others.

Third, the IJ found Haider ineligible for withholding of removal under the INA.

He noted that the police suspected Haider of being connected to terrorists, but he did not

decide whether Haider had established a protected ground. Instead, the IJ held that the

GIA’s recruitment efforts did not constitute past persecution and that the police, in light

of the single five-hour detention and the fact that Haider never needed medical attention,

had only harassed him. The IJ further found no likelihood of future threat to life or

freedom, emphasizing that Haider reported no contact with the GIA or police from 1999

to 2000.

No. 08-4010 Haider v. Holder Page 6

Finally, the IJ denied relief under the CAT, finding that the police abuse was not

torture and that Haider had not shown that his treatment would be worse in the future.

The BIA adopted and affirmed the IJ’s decision on August 6, 2008. It agreed that

the asylum application was time-barred. The BIA stated that “the IJ did not make a

specific credibility finding” but committed “no clear error” in “finding that the

respondent failed to adequately meet his burden of proof” under the INA. J.A. at 2. The

BIA affirmed the IJ’s reasoning that the police abuse did not amount to persecution and

added that Haider was not targeted for his religious beliefs or political opinion, “imputed

or otherwise.” J.A. at 3. The BIA also affirmed the denial of the CAT claim because

the abuse did not meet the definition of torture. Haider timely filed a petition for review.

This court stayed his removal on October 27, 2008.

II. ANALYSIS

A. Standard of Review

Because the BIA adopted and added to the IJ’s decision, we review the opinion

of the IJ and the BIA’s supplemental comments. See Bi Feng Liu v. Holder, 560 F.3d

485, 490 (6th Cir. 2009). Haider does not challenge the rejection of his asylum claim,

as this court cannot review factual findings of timeliness. 8 U.S.C. § 1158(a)(3);

Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). Thus, the petition is limited

to the denial of withholding of removal under the INA and the CAT, relief that would

be available regardless of the filing date. We review the IJ’s and BIA’s findings for

substantial evidence and may reverse only if the decision was “manifestly contrary to

law,” 8 U.S.C. § 1252(b)(4)(C), that is, if the evidence “not only supports a contrary

conclusion, but indeed compels it,” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)

(internal quotation marks omitted).

No. 08-4010 Haider v. Holder Page 7

B. Two Preliminary Issues

Before arguing the merits of his eligibility for withholding, Haider raises two

errors that he believes require remand: (1) the BIA’s application of the wrong standard

of review in affirming the IJ’s decision, and (2) the IJ’s failure to make an explicit

credibility determination.

The BIA must review an IJ’s factual findings for clear error and legal conclusions

de novo. 8 C.F.R. § 1003.1(d)(3); Matter of A-S-B-, 24 I. & N. Dec 493, 496 (BIA

2008). Haider points to two parts of the BIA’s opinion that appear to apply an

improperly deferential standard. First, the BIA stated, “[w]e find no clear error on the

part of the Immigration Judge in finding that the respondent failed to adequately meet

his burden” under the INA. J.A. at 2. Second, the BIA appeared to apply the

substantial-evidence standard, observing that “the record does not compel the conclusion

that he reasonably feared the GIA would persecute him because of a political opinion.”

J.A. at 3. These statements do not reflect the proper standard of review for mixed

questions of law and fact. In the rest of the opinion, however, the BIA wrote in

decidedly de novo terms. It held, “[b]y the respondent’s own admission, the actions of

the GIA and the police were not on account of his religious beliefs or political opinion,

imputed or otherwise. . . . We find that the respondent has not established that either of

his alleged persecutors acted on account of his opinion, imputed or otherwise.” J.A. at

3. The BIA should have taken more care with its opinion and avoided the improper

statements, but it denied relief based on its own view of the evidence.

Next, Haider objects that the IJ failed to make an unambiguous credibility

determination. On the one hand, the IJ found that Haider’s demeanor suggested honesty

and that his testimony was detailed and mostly plausible.3 On the other hand, he found

it “troubling” that Haider failed to include the police incidents in his application and to

supply corroborating documents. J.A. at 81. The IJ resolved to “give less weight to the

3

The BIA read the IJ’s opinion as making exactly the opposite finding. It wrote that the IJ

“discussed the lack of detail and vagueness in the respondent’s testimony compared with his application

for relief.” J.A. at 2. The BIA also referred to “Albania” instead of “Algeria” at one point. J.A. at 3.

No. 08-4010 Haider v. Holder Page 8

respondent’s testimony,” J.A. at 83, but this statement does not answer the crucial

question of what the IJ believed and did not believe occurred. As the BIA put it, the IJ

“did not make a specific credibility finding in this case.” J.A. at 2.

Haider argues that the case must be remanded for an explicit credibility

determination, as he contends that meaningful review is impossible on the current

record. The government urges us to follow the language of our unpublished opinion in

Maklaj v. Mukasey, 306 F. App’x 262 (6th Cir. 2009), which stated that when an IJ fails

to “make a clear adverse credibility determination,” even if he “clearly doubted” the

applicant’s testimony, this court “accept[s that] testimony as true.” Id. at 264 n.4. Both

suggestions are ill-fitted to the situation we confront here. In this case, the IJ clearly

expressed doubt about the applicant’s version of the events. Lack of credibility,

however, was not the basis for his denial of relief, or for the BIA’s dismissal of the

appeal. Both the IJ and the BIA instead held that, even assuming Haider’s allegations

were true, they did not amount to past persecution. J.A. at 2-3, 83-84. An immediate

remand would not necessarily prevent us from having to resolve the past-persecution

question on subsequent review, since the BIA might determine that Haider was credible

or might reach the opposite conclusion based on insubstantial evidence. At the same

time, assuming credibility and then ordering withholding of removal usurps the role of

the IJ as factfinder. See 67 Fed. Reg. 54,878, 54,890 (“Immigration judges are better

positioned to discern credibility and assess the facts with the witnesses before them

. . . .”).

We therefore adopt the following procedure: when an IJ or the BIA expresses

suspicion about an applicant’s lack of credibility but the BIA fails to make an explicit

adverse determination and instead denies relief on some other basis, we will assume that

the applicant was credible in order to review the actual grounds for the ruling. This

procedure tracks the analytical path taken by the IJ or the BIA. If we conclude that the

stated basis for denying relief was supported by substantial evidence, further review is

foreclosed. If the evidence compels the opposite result, however, we will remand for a

credibility determination. See, e.g., Cordon-Garcia v. INS, 204 F.3d 985, 993-94 (9th

No. 08-4010 Haider v. Holder Page 9

Cir. 2000) (holding that the applicant demonstrated past persecution and a well-founded

fear of future persecution but remanding for a credibility finding because the BIA had

avoided ruling on the IJ’s concerns).4

This approach is perfectly consistent with the facts of Maklaj. In that case, the

panel accepted the petitioner’s testimony as true but upheld the BIA’s denial of asylum

and withholding based first on his failure to produce evidence corroborating his claim

of past persecution and second on a finding that changed country conditions defeated any

fear of future persecution. 306 F. App’x at 264.5 The assumption of credibility was

appropriate in spite of the IJ’s skepticism of the applicant’s testimony because credibility

was not necessary to the case’s outcome.

Following the procedure laid out above, we shall also assume Haider’s credibility

and address the question of past persecution. Because, as we explain below, we

conclude that the finding that Haider had not been persecuted was not supported by

4

The government cites three cases from other jurisdictions in support of its position that

credibility must be assumed and remand avoided, none of which requires us to rethink our reasoning. The

first, Chen Lin-Jian v. Gonzales, 489 F.3d 182 (4th Cir. 2007), is consonant with our approach. There, the

court reversed the IJ’s adverse ruling on the issue of past persecution and therefore remanded for a

credibility determination. See id. at 193 (Shedd, J., concurring).

In the second case, Toure v. Attorney General, 443 F.3d 310 (3d Cir. 2006), the court remarked

that “where an IJ or the BIA fails to make an explicit credibility finding, we will proceed as if the

applicant’s testimony were credible,” citing three cases in support. Id. at 326. In two of those cases, the

IJ made unfavorable remarks about the applicant’s credibility, but the BIA denied relief without making

a clear adverse finding. The courts applied exactly the approach that we adopt here: assuming, but not

determining, credibility in order to reach the alternative substantive basis on which the BIA denied relief,

and then remanding for a credibility determination where relief could not properly be denied on that

alternative basis. See Kayembe v. Ashcroft, 334 F.3d 231, 235, 237-39 (3d Cir. 2003); Zhen Hua Li v. Att’y

Gen., 400 F.3d 157, 163-64, 170 (3d Cir. 2005). The third case involved IJ and BIA decisions that neither

made a clear determination nor contained any negative comments about the petitioner’s credibility; the

court assumed credibility and ordered relief. Lusingo v. Gonzales, 420 F.3d 193, 197 n.5, 202 (3d Cir.

2005). This is an approach that we likewise endorse: when neither the IJ nor the BIA intimates any

concern about a petitioner’s credibility, it is reasonable for a reviewing court to infer that they found the

petitioner credible.

In the third case cited by the government, Kataria v. INS, 232 F.3d 1107 (9th Cir. 2000), the IJ

expressed significant concerns about the petitioner’s testimony but did not make an explicit adverse

credibility finding and denied relief for lack of corroborative evidence. Id. at 1111-12. The court accepted

the petitioner’s testimony as true, reversed the administrative decision based on its rule that “the BIA may

not require independent corroborative evidence from an asylum applicant who testifies credibly,” and

granted the petition for withholding of removal. Id. at 1113, 1115. The Kataria court converted a mixed

credibility finding into a positive one and issued relief on its basis. Were we to face a similar case, the

approach we adopt today would require a remand to the BIA on credibility.

5

Maklaj cited Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005), in support of its assumption of

credibility. In Gilaj, however, this court accepted the petitioners’ testimony as true because the IJ had

found them to be credible. See id. at 285-86. Gilaj was not a case in which the IJ failed to make a

credibility determination.

No. 08-4010 Haider v. Holder Page 10

substantial evidence, we must remand to the BIA for determination of which parts of

Haider’s testimony were and were not credible. See INS v. Ventura, 537 U.S. 12, 16-17

(2002) (holding that the courts of appeals should remand to the BIA for determination

of factual issues in the first instance).6

C. Withholding of Removal Under the INA

Under § 241(b)(3) of the INA, the government may not remove an alien to a

country if he can prove that it is more likely than not that his “life or freedom would be

threatened in that country because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). If the

applicant establishes past persecution, it is presumed that his life or freedom would be

threatened in the future. 8 C.F.R. § 208.16(b)(1)(i). That presumption can be rebutted

if an IJ finds that there has been a fundamental change in circumstances in the proposed

country of removal or that the applicant could reasonably be relocated to another part of

that country, such that his life or freedom would not be threatened. Id.

§ 208.16(b)(1)(i)(A)-(B). If the applicant cannot establish past persecution, he retains

the burden of proving “that it is more likely than not that he . . . would be persecuted on

account of [a protected ground] upon removal to that country.” Id. § 208.16(b)(2).

Haider argues that the evidence compels a finding that he was abused on account

of imputed political opinion and that the abuse constituted persecution. As explained

below, we agree.

1. Protected Ground: Imputed Political Opinion

Invoking a ground not relied upon by the IJ, the BIA denied Haider’s application

for lack of a nexus between the abuse he suffered and any protected ground listed in the

statute. Haider responds that both the GIA and the police targeted him because of a

political opinion they imputed to him. The Supreme Court has never decided whether

imputed political opinion can be a protected ground, but the Sixth Circuit has held in an

6

As in the usual course, the BIA’s or IJ’s credibility determination would then be reviewable by

this court for substantial evidence.

No. 08-4010 Haider v. Holder Page 11

unpublished order that it is. See Abdulnoor v. Ashcroft, 107 F. App’x 594, 595 (6th Cir.

2004) (unpublished order) (remanding because, although applicant was not politically

active, “[t]he BIA apparently did not consider that imputed political opinion is a

protected ground”); see also Pascual v. Mukasey, 514 F.3d 483, 486-87 (6th Cir. 2007)

(noting that most circuit courts have approved this approach, that this court did so in

Abdulnoor, and that the Supreme Court’s emphasis on the persecutor’s motive suggests

this approach is appropriate). We reaffirm that conclusion.

Haider has no argument as to the GIA. Nowhere in the briefing does he delineate

the imputed political opinion for which the terrorist group allegedly persecuted him. To

the extent he might be arguing that the GIA saw his refusal to join them as politically

motivated, there is no support for this in the record. See INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (denying asylum where applicant had no evidence that guerillas

believed his refusal to join them was political). Indeed, at his administrative hearing,

Haider’s attorney admitted that “[a]lthough he fears going back due to GIA, really, the

past persecution claim in this case is the police or security forces.” J.A. at 221.

The police targeted him, Haider argues, because they believed he was in league

with the GIA. The IJ specifically found that “the police and security forces suspected

that the respondent might have some sort of terrorist connections.” J.A. at 83. The BIA

went one step further, finding that the “[t]he police investigators arrested him because

they believed that he was associated with GIA.” J.A. at 3 (emphasis added). But in the

immediately preceding sentence, the BIA concluded that “the actions of the . . . police

were not on account of his . . . political opinion, imputed or otherwise.” This statement

raises the question, does suspected affiliation with an anti-government terrorist group

constitute imputed political opinion?

No. 08-4010 Haider v. Holder Page 12

Prior cases from this circuit and our sister courts suggest the answer is “yes.”7

In Abdulnoor, this court considered the petition of a former Iraqi weapons-depot guard

who had been sentenced to death after weapons were missing on his watch and were

found in the possession of a group planning a coup against Saddam Hussein. 107 F.

App’x at 595. The applicant feared that he would be persecuted based on suspicion that

he had been involved in the plot. Id. This court found that he had an asylum claim

based on imputed political opinion. Id.8 In Kumar v. Gonzales, 444 F.3d 1043 (9th Cir.

2006), the Ninth Circuit held that an applicant had established the imputed-political-

opinion element when Kashmiri police had detained and physically abused him on the

belief that he associated with Muslim terrorists. Id. at 1054; see also Singh v. Ilchert,

63 F.3d 1501, 1508-09 (9th Cir. 1995) (finding imputed political opinion based on

Indian police’s belief that applicant was affiliated with Sikh militants), superseded by

statute on other grounds. Similarly, in Uwais v. United States Attorney General, 478

F.3d 513 (2d Cir. 2007), the Second Circuit held that an applicant who had been

arrested, detained, interrogated, and sexually assaulted by Sri Lankan police based on

their suspicion that she was affiliated with the Tamil Tigers had suffered abuse based on

imputed political opinion. Id. at 517-18.

These cases and the evidence Haider presented compel the conclusion that the

police abused Haider because of an imputed political opinion. Like the Iraqi coup-

7

The dissent, by contrast, answers “no,” in light of a BIA decision holding that “refuge is

restricted to individuals who are either unable by their own actions, or as a matter of conscience should

not be required, to avoid persecution.” Dissent at 20 (quoting In re Acosta, 19 I. & N. Dec. 211, 234 (BIA

1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987)) (internal

quotation marks omitted). The dissent emphasizes that the GIA aimed to achieve its political goals through

violence, “not through political discourse of the kind we should protect ‘as a matter of conscience.’” Id.

This reasoning, even if sound, surely does not extend from cases of actually held political opinion to cases

of imputed political opinion, in which applicants have not chosen to believe anything at all. An individual

who was persecuted for a political opinion that he never actually held should not be barred from relief

because we do not like that opinion.

8

The Sixth Circuit has confronted similar imputed-political-opinion claims in a number of cases

in which we have denied relief on bases other than failure to establish a causal nexus to a protected ground.

See, e.g., Singh v. Ashcroft, 398 F.3d 396 (6th Cir. 2005) (denying review, based on IJ’s credibility

determination, to applicant for withholding of removal who feared abuse from Indian police who believed

he supported violent Sikh separatists); Lam v. Ashcroft, 112 F. App’x 477 (6th Cir. 2004) (unpublished

opinion) (denying review, based on lack of evidence, to applicant who feared persecution by the

Mauritanian government due to its mistaken belief that he had been part of an opposition paramilitary

group); Dabo v. Ashcroft, 107 F. App’x 513 (6th Cir. 2004) (unpublished order) (denying review when IJ

had been prepared to grant relief to alien who feared returning to Senegal because the government believed

he had joined the separatists but IJ ultimately denied relief based on alien’s falsification of documents).

No. 08-4010 Haider v. Holder Page 13

plotters, Kashmiri terrorists, and the Tamil Tigers, the GIA is a militant group that seeks

to overthrow the government. There is no lack of evidence that the police in fact were

motivated by Haider’s suspected connection to the GIA, as they repeatedly called him

a terrorist and asked about the group when they stopped him. The BIA made this causal

finding. Accordingly, the BIA’s conclusion that Haider did not establish a protected

ground was unsupported by substantial evidence. We are compelled to conclude that

Haider established a protected ground based on imputed political opinion.9

9

It might be argued that there is a difference between persecution for imputed illegitimate conduct

and persecution for imputed opinion or membership in a political group. That is, if the police persecuted

Haider for what they thought he did (spying for the GIA) rather than what they thought he believed (that

the government should be toppled) or what group they thought he belonged to (the GIA), then there is no

causal nexus to a protected ground. We believe such a distinction would be in tension with the cases

described above, in which courts found that petitioners who were thought to have engaged in criminal acts

had established imputed political opinion. See Abdulnoor, 107 F. App’x at 595 (persecutors believed

petitioner helped coup-plotters obtain weapons); Kumar, 444 F.3d at 1047 (police arrested petitioner

because they believed he was “involved in terrorist activities”); Uwais, 478 F.3d at 515 (police accused

petitioner of knowingly housing Tamil Tigers). The dissent’s attempt to distinguish these cases is

unpersuasive. The dissent tries to read Abdulnoor differently, suggesting that “it is quite likely that any

form of political opposition could have resulted in the sentence of death Abdulnoor found himself under,

and the court certainly does not tell us differently.” Dissent at 21. This suggestion is mere speculation and

was not the basis of the court’s opinion. The court clearly held that the petitioner was persecuted based

on political opinion imputed to him because of conduct that aided a group dedicated to the violent

overthrow of the government—the same sort of circumstances involved here. The dissent’s comment that

Kumar involved “whether the petitioner’s imputed political opinion was sufficient to provide a nexus, and

does not at all concern the opinion/method distinction” is misleading. Dissent at 21. The IJ in that case

held that the petitioner had not established a nexus to a protected ground because the IJ believed Kumar

had not established a protected ground. Kumar, 444 F.3d at 1053. The Ninth Circuit rejected that finding,

holding that in light of the persecution suffered by the petitioner “as a result of the Jammu and Kashmir

police’s mistaken belief that [he] was associated with a Muslim terrorist group,” “the record compels us

to rule that [he] has suffered persecution on the basis of an imputed political opinion.” Id. at 1054.

Similarly, the dissent’s treatment of Uwais sidesteps the core holding of that case, which was that the

petitioner “was arrested, detained, interrogated, and severely questioned on account of imputed political

opinion based on her suspected affiliation with the armed Tamil Tiger tenants.” 478 F.3d at 517. In the

end, the dissent simply disagrees with these courts and says as much. Dissent at 21.

Even if the conduct-opinion distinction were appropriate in some cases, it has no application here.

The BIA explicitly found that the police abused Haider “because they believed that he was associated with

the GIA”—i.e., because of his imputed membership with a political organization. J.A. at 3. The dissent

doubts that the police viewed the GIA as a political organization, based on their reference to Haider as a

“terrorist” as opposed to a “dissident” or an “activist.” The police’s use of the word “terrorist” is a thin

reed indeed on which to hold that Haider has not established a protected ground. The record below made

clear that the GIA had a political agenda. J.A. at 255 (State Department report explaining that the group

“launched terrorist campaigns against government figures and institutions to protest the banning of the

Islamist parties”). The word “terrorist” can carry a political valence, and we have no indication that the

police intended it to refer to violent acts alone and not also anti-government activity. It demands too much

to require that the police, while abusing an applicant, use epithets as pro-opposition as those suggested by

the dissent.

No. 08-4010 Haider v. Holder Page 14

2. Past Persecution

The INA does not define “persecution.” Mikhailevitch v. INS, 146 F.3d 384, 389

(6th Cir. 1998), but this court has mapped the contours of its meaning in past cases.

Persecution “requires more than a few isolated incidents of verbal harassment or

intimidation, unaccompanied by any physical punishment, infliction of harm, or

significant deprivation of liberty.” Id. at 390. The fact of some physical harm may not

be sufficient, Kane v. Gonzales, 236 F. App’x 178, 182 (6th Cir. 2007) (unpublished

opinion), but harm need not be life-threatening to constitute persecution, De Leon v. INS,

99 F. App’x 597, 599 (6th Cir. 2004) (unpublished opinion). In some cases, an applicant

need not prove physical harm at all. See, e.g., Ouda, 324 F.3d at 454 (woman who never

herself had been beaten established persecution based on economic deprivation and

expulsion). Typically, though, the “[t]ypes of actions that might cross the line from

harassment to persecution include: detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property, surveillance, beatings, or

torture.” Zacarias v. Gonzales, 232 F. App’x 458, 462 (6th Cir. 2007) (unpublished

opinion) (internal quotation marks omitted). An applicant must show that she was

“specifically targeted” and was not “merely a victim of indiscriminate mistreatment.”

Gilaj, 408 F.3d at 285.

The IJ (and this court) must evaluate past persecution based on “the overall

context of the applicant’s situation.” Id. That is, the IJ must view the evidence in the

aggregate, as “a collection of harmful events, even though they may not qualify

individually as persecution, [that] may taken together constitute persecution.” Stenaj v.

Gonzales, 227 F. App’x 429, 433 (6th Cir. 2007) (unpublished opinion); see also

Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005); In re O-Z- & I-Z-, 22 I. &

N. Dec. 23, 26 (BIA 1998). In reviewing the finding that Haider was not persecuted in

Algeria, this court takes his allegations as credible, as discussed above.

We hold that the evidence compels a finding of persecution. Haider testified to

being repeatedly stopped, searched, and accused of being a GIA terrorist by police.

They confiscated his property, stealing clothes from his suitcases of merchandise. The

No. 08-4010 Haider v. Holder Page 15

police physically assaulted him, once punching him four times in the ear and another

time striking him with a gun three times in his back and shoulder. On one occasion,

police detained Haider for five hours, interrogated him about alleged terrorist

connections, and struck him repeatedly in the back with a gun. Most disturbingly, three

separate times Haider suffered sexual abuse and humiliation at the hands of the police,

twice in public places. In the May 1996 incident, after stopping him on the street,

officers pulled down his pants, put a gun “up in [his] butt,” and taunted him, “how do

you like that?” J.A. at 145. That summer, officers removed his clothes during an

interrogation at the police station. And during the February/March 1997 incident, again

in the street, an officer pulled down Haider’s pants and prodded him in the buttocks

“first . . . with his hands, then . . . with the big gun.” J.A. at 153. After each episode,

they threatened him with more of the same.

Even setting aside the incidents that could be viewed as retaliation for the filing

of the lawsuit, we conclude that Haider experienced most of the actions listed in

Zacarias. These abuses cannot be characterized as isolated incidents or mere verbal

harassment, and the officers’ questions about the GIA make clear that they specifically

targeted him. The cases cited by the government and relied on by the BIA are

distinguishable. In Thanasi v. Gonzales, 228 F. App’x 549, 554 (6th Cir. 2007)

(unpublished opinion), the applicant suffered only “a single punch to the ribs, a slap to

the face, an admittedly mistaken arrest, and momentary jostling and verbal

harassment”—lower-level abuse to which the Haider’s experiences cannot be reduced.

In Kane, the allegations were serious—they included multiple beatings and detentions,

one for two weeks—but the panel emphasized that the applicant had thrived

academically and professionally and credited the IJ’s finding of changed conditions in

the country of origin. 236 F. App’x at 183-84. Finally, in Mohammed v. Keisler, 507

F.3d 369, 371-72 (6th Cir. 2007), the sum total of the abuse attributable to the

government was a three-day detention, a slap, and a kick—again, conduct much less

serious than that involved here.

No. 08-4010 Haider v. Holder Page 16

In reaching a contrary conclusion, the IJ failed to analyze all the relevant facts

and consider them in the aggregate. After suggesting that the internal bleeding in

Haider’s ear could have been caused by the flu, the IJ expressed surprise that Haider

“only sustained the occasional bruise” as a result of his encounters with the police. J.A.

at 82, 84. The IJ based his finding on the fact that Haider’s injuries never required

medical treatment and that he was “only detained one time for a total of five hours.” Id.

at 84. But the IJ neglected to discuss in his analysis section the repeated stops and

searches, the theft of merchandise, or the variety of threats. Most egregiously, the IJ

failed to consider the significance of the sexual humiliation that occurred on three

occasions. This court has previously noted that abuse of this nature can make all the

difference. In Stenaj, the panel distinguished its facts, which did not amount to

persecution, from those in Gilaj, which did, in part on the basis that the applicant in

Gilaj was molested by her persecutors. 227 F. App’x at 434;10 see also In re O-Z- & I-

Z-, 22 I. & N. Dec. at 25-26 (holding that Jewish boy was persecuted on account of his

nationality in part based on “suffer[ing] extreme humiliation when he was forced to

undress by his classmates”); Kholyavskiy v. Mukasey, 540 F.3d 555, 570 (7th Cir. 2008)

(citing cases emphasizing the seriousness of being forced to expose one’s private parts).

These omissions make clear that the IJ failed to grasp the aggregate significance of

Haider’s encounters with the police. We hold that the IJ’s characterization of the abuse

as mere harassment was not supported by substantial evidence.11

10

Importantly, the applicant in Gilaj did not spell out exactly what happened to her. She testified

that during a search of her home, the police “started to provoke [her] as a woman,” which the court

characterized as a sexual assault or molestation, and possibly only an attempted one. 408 F.3d at 280, 286.

Thus, Gilaj cannot be distinguished based on intensity of the violation.

11

As an additional basis for affirmance, the government raises the IJ’s expression of concern that

Haider presented no statements from his family or doctor to corroborate his allegations. In some cases,

the IJ uses the lack of corroborating evidence to support a credibility determination. See, e.g., Xue Rong

Zheng v. Holder, 315 F. App’x 570, 573-74 (6th Cir. 2009) (unpublished opinion) (applicant’s failure to

provide corroborating evidence “further supports the IJ’s adverse credibility finding”). In others, the IJ

invokes it as a separate basis to find that the applicant has not met his burden of proof. See, e.g., Yinggui

Lin v. Holder, 565 F.3d 971, 975, 977 (6th Cir. 2009) (applicant not incredible, but asylum denied for lack

of corroborating evidence); Dorosh v. Ashcroft, 398 F.3d 379, 383 (6th Cir. 2004) (same); Shkabari v.

Gonzales, 427 F.3d 324, 331-32 (6th Cir. 2005) (relief denied for lack of credibility and lack of

corroboration). In this case, the IJ mentioned the lack of corroborating evidence as part of the credibility

discussion, not as an independent basis for denial. Because the IJ did not rest his persecution decision on

the lack of corroboration, it is no bar to reversal.

No. 08-4010 Haider v. Holder Page 17

As discussed above, our conclusion that the allegations, if true, amount to past

persecution requires us to remand to the BIA for a proper credibility determination. If,

upon remand, the BIA credits Haider’s testimony about the events reviewed here, the

evidence compels a finding of past persecution and Haider is entitled to a presumption

that his life or freedom would be threatened upon removal to Algeria. 8 C.F.R.

§ 208.16(b)(1)(i). The BIA should then consider whether the government can rebut the

presumption, id., and if so, whether Haider can prove the likelihood of future threat to

life or freedom, id. § 208.16(b)(2).12

D. Withholding of Removal Under the CAT

Under the Convention Against Torture, removal must be withheld if “it is more

likely than not that [the applicant] would be tortured if removed to the proposed country

of removal.” 8 C.F.R. § 208.16(c)(2). No protected-ground nexus is required.

Almuhtaseb, 453 F.3d at 751. Torture is “an extreme form of cruel and inhuman

treatment.” 8 C.F.R. § 1208.18(a)(2). Specifically, it is “any act by which severe pain

or suffering, whether physical or mental, is intentionally inflicted” to extract

information, punish, intimidate, coerce, or otherwise discriminate, “when such pain or

suffering is inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.” Id. § 1208.18(a)(1).

The IJ’s denial of relief under the CAT was supported by substantial evidence.

The police abuse was not so severe as to constitute torture. See Shkulaku-Purballori v.

Mukasey, 514 F.3d 499, 501, 503 (6th Cir. 2007) (multiple beatings, resulting in fainting

and a broken finger, were not torture). The GIA, meanwhile, did not inflict physical

harm on Haider, and he has not shown that their intimidation caused him extreme mental

suffering. Nor did Haider prove that he could expect worse treatment upon his return.

12

It is in this inquiry that the BIA can evaluate the significance of Haider’s family’s continued

residence in Algeria and the fact that he reported no police harassment during his final years in that

country. The abuse Haider claims to have experienced through 1997 constitutes past persecution. The

argument that the police did not abuse him personally from late 1997 until his departure in 2000 may go

to changed circumstances and the likelihood of future harm. In adjudicating those issues, the BIA should

also consider Haider’s testimony that he avoided the police during this time frame by moving between

relatives’ homes. We note that the statement that Haider claims that police made to his mother in

1999—“where is your son, we haven’t seen him,” J.A. at 173—is consistent with his explanation.

No. 08-4010 Haider v. Holder Page 18

III. CONCLUSION

Assuming Haider’s testimony to be credible, we hold that the evidence compels

a finding that the police abused Haider based on an imputed political opinion, namely,

his suspected affiliation with the GIA. Our assumption of Haider’s credibility, however,

was just that—an assumption. As the IJ expressed some concern about the reliability of

his testimony, the case must be returned to the BIA to permit factfinding along these

lines. We therefore GRANT the petition as to withholding of removal under the INA

and REMAND for proceedings consistent with this opinion. We also conclude that

neither the actions of the Algerian police nor those of the GIA amounted to torture.

Accordingly, we DENY the petition with respect to withholding of removal under the

CAT.

No. 08-4010 Haider v. Holder Page 19

__________________

DISSENT

__________________

BOGGS, Circuit Judge, dissenting. I concur with the majority’s well-reasoned

discussion of the “preliminary issues” raised by the petitioner in this case. I believe that,

despite the BIA’s imprecise articulation of the proper standard of review, it ultimately

applied de novo review to the evidence before it. Moreover, I believe that it makes good

sense in this case to assume the petitioner’s testimony to have been credible, because

none of the petitioner’s allegations with respect to facts undergirding the dispositive

issues appear to have been discounted by the IJ or the BIA.

I write separately, however, to express my disagreement with the majority’s

belief that it is compelled to conclude that the Algerian police’s actions in this case were

motivated by Mohamed Haider’s imputed political opinions. Whereas the majority

would hold that “suspected affiliation with an anti-government terrorist group

constitute[s] imputed political opinion,” I find such a conclusion unsupportable.

We are required to give “deference to the BIA’s reasonable interpretation of the

statutes and regulations” it enforces. Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009)

(citing Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843–44 (1984)). While the

BIA does not appear to have addressed itself to the precise question at hand, it is

instructive to note that it has held that “persecution . . . clearly contemplates that harm

or suffering must be inflicted upon an individual in order to punish him for possessing

a belief or characteristic a persecutor seeks to overcome.” In re Acosta, 19 I. & N. Dec.

211, 223 (BIA 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec.

439 (BIA 1987). Such a “belief or characteristic” is clearly distinguishable from the

action of committing or aiding acts of murder and mayhem. Those acts do not

automatically become expressions of “political opinion” when they are committed by

groups with political aims.

Furthermore, “refuge is restricted to individuals who are either unable by their

own actions, or as a matter of conscience should not be required, to avoid persecution.”

No. 08-4010 Haider v. Holder Page 20

Acosta, 19 I. & N. Dec. at 234. Thus, the INA provides refuge for those persecuted on

account of race, religion, nationality, membership in a particular social group, or

political opinion only to the extent that these beliefs or characteristics are beyond the

control of the applicant or are of the kind that we believe “as a matter of conscience” that

a petitioner ought not be required to change to avoid persecution.

Is affiliation with a terrorist group a “belief?” One cannot reasonably contend

so. A terrorist group, as the name implies, is not defined by the political opinions it

espouses but by its methods. Is it a “characteristic?” Perhaps, if one views a tendency

to resort to violence as a political weapon as a “characteristic,” but in no event could

such a tendency be described as one that a petitioner could not change, or should not be

required to change. As the record in this case indicates, the GIA and its splinter groups

were involved in active terrorist campaigns that targeted civilians; during the 1990s, they

were part of a wave of terrorism that took the lives of more than 100,000 Algerians. The

GIA’s methods were calculated to achieve its aims not through political discourse of the

kind we should protect “as a matter of conscience,” but through indiscriminate violence

and threats of violence designed to cause widespread chaos and fear that might permit

them to bully their way into power.

The actions of the Algerian police, of course, may have been no better in this

case than those of their enemies. If Mr. Haider’s testimony is to be believed, their

humiliating attacks on him with little or no evidence of his connection to the GIA

deserve to be condemned. While one may sympathize with Mr. Haider’s plight,

however, victimization by arbitrary thuggishness is decidedly not a protected ground,

and there is simply no evidence that the police abused him on account of his imputed

political opinion, as opposed to their belief that he was affiliated with a group

that—regardless of its politics—engaged in the murder of civilians in a quest for power.

The majority anticipates this argument in its footnote 9, but does not provide a

convincing reply. In claiming that a distinction between political opinion and conduct

“would be in tension” with case law, it points to one unpublished decision of this circuit

(Abdulnoor v. Ashcroft, 107 F. App’x 594 (6th Cir. 2004)), a decision of the Ninth

No. 08-4010 Haider v. Holder Page 21

Circuit (Kumar v. Gonzales, 444 F.3d 1043 (9th Cir. 2006)), and a decision of the

Second Circuit (Uwais v. United States Attorney General, 478 F.3d 513 (2d Cir. 2007)).

The decision in Abdulnoor, however, gives no indication whatsoever that the petitioner

in the case was persecuted for his methods; while the Iraqi government linked him to an

opposition group because weapons for which he was responsible ended up in that

group’s hands, there is no evidence that Abdulnoor would not have been under the same

threat if the group had been engaged in peaceful resistance. See Abdulnoor, 107 F.

App’x at 595. Given the situation in Iraq under Saddam Hussein, it is quite likely that

any form of political opposition could have resulted in the sentence of death Abdulnoor

found himself under, and the court certainly does not tell us differently. Thus,

Abdulnoor cannot fairly be read to bar a distinction between a petitioner’s opinions and

his conduct. To the extent that Kumar or Uwais may be read to hold differently, I

disagree with them, though I note that the support they provide for the majority is shaky

at best. The cited portion of Kumar addresses itself to the question of whether the

petitioner’s imputed political opinion was sufficient to provide a nexus, and does not at

all concern the opinion/method distinction. Kumar, 444 F.3d at 1053–54. Uwais

involved a petitioner who was persecuted in large part because of her Tamil ethnicity

and not just her alleged involvement with the group known as the Tamil Tigers—an

important point because the court was reviewing a BIA finding that the persecution had

not been even partly motivated by a protected ground, Uwais, 478 F.3d at 518, and the

court in that case thus had no occasion to discuss the core argument here.

Curiously, the majority concludes that “[e]ven if the conduct–opinion distinction

were appropriate in some cases, it has no application here. The BIA explicitly found that

the police abused Haider ‘because they believed that he was associated with the

GIA’—i.e., because of his imputed membership with a political organization.” This

simply begs the question, however; whether Haider’s association with the GIA was, in

the police’s eyes, an association with a political organization is precisely the issue under

discussion. I find that a review of the evidence in this case produces sincere doubt as to

that question, given that the Algerian police are not described as calling Haider a

No. 08-4010 Haider v. Holder Page 22

“dissident” or an “activist,” but rather, as the majority notes, a “terrorist.”1 In ushering

Haider through the golden door, the majority sets a dangerous precedent.

Accordingly, I respectfully dissent.2

1

While the majority is doubtless correct that such a term can “carry a political valence,” Majority

Opinion at 13 n.9, there is no evidence in this case that it did. The very State Department report cited by

the majority states that the GIA “launched terrorist campaigns against government figures and institutions

to protest the banning of the Islamist parties.” Ibid. (emphases added). There is no suggestion in the

record that Haider was singled out because the GIA “protest[ed] the banning of the Islamist parties” rather

than because it “launched terrorist campaigns.” Of course terrorism can be in aid of political goals—it

usually is. When Josef Stalin masterminded bank robberies that left dozens dead, he did so to fund Lenin’s

nascent Bolshevik Party. See Simon Sebag Montefiore, Young Stalin 3–16 (Vintage Books 2008). When

the Russian government sought to bring him to justice for those crimes, must we believe it did so on

account of his political opinions, rather than because he was a murderer and a thief?

2

Because I believe that the evidence does not compel the conclusion that Haider was abused on

account of a protected ground, I would not reach the question of whether those abuses constituted

“persecution,” and I express no opinion on that matter.