Ndayshimiye v. Atty Gen USA

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

2-24-2009

Ndayshimiye v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-3201

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-3201

_____________

JEAN BOSCO NDAYSHIMIYE;

SPECIOSE MUREKATETE,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_____________

On Review of a Decision of the Board of Immigration Appeals

(BIA No. A97-529-530 and A97-529-529)

Immigration Judge: Mirlande Tadal

_____________

Argued November 17, 2008

Before: SCIRICA, Chief Judge, FUENTES, and HARDIMAN,

Circuit Judges

(Opinion Filed: February 24, 2009)

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Kelly A. Carrero (Argued)

Matthew V. Barter

William J. Hine

Jones Day

222 East 41 st Street

New York, NY 10017-0000

Attorneys for Petitioners

Julie M. Iversen (Argued)

Allen W. Hausman

Margaret J. Perry

Jeffrey S. Bucholt

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

Richard D. Steel

Deborah E. Anker

Harvard Immigration and Refugee Clinical Program

1563 Massachusetts Avenue

Cambridge, MA 02138

Amicus Curiae for the Court

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OPINION OF THE COURT

FUENTES, Circuit Judge:

Rwandan citizens Jean Bosco Ndayshimiye and his wife

Speciose Murekatete sought asylum in the United States in 2006,

alleging that they had suffered persecution at the hands of

Ndayshimiye’s aunt in Rwanda. They now petition for review of

the Board of Immigration Appeals’ (“BIA”) decision rejecting their

application for asylum. Petitioners asserted before the BIA that

although their mistreatment was precipitated by a 2004 land dispute

with Ndayshimiye’s aunt, it was also caused by their status as

recent immigrants to Rwanda from Burundi, where they had been

born after their Rwandan parents fled there in the 1960s. Based on

the fact that Ndayshimiye had a relatively peaceful relationship

with his aunt for the eight years following Petitioners’ return to

Rwanda in 1996, the BIA concluded that any persecution occurring

after 2004 was motivated solely by the land dispute. Although the

BIA’s interpretation of the statutory standard for analyzing possible

“mixed motives” persecution was partially in error, its rationale

that petitioners’ Burundian background was at most incidental to

other reasons for their persecution does support the Board’s

ultimate conclusion even under the corrected standard. Therefore,

we will deny the petition.

I.

Petitioners Ndayshimiye and Murekatete were born in

Burundi, but are Rwandan citizens since their parents were

originally Rwandan but fled from that country in the 1960s. They

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are of Tutsi ethnicity. In 1996 they both returned to Rwanda along

with several hundred thousand other Rwandan refugees who are

known as “old case-load” refugees. These former refugees have

different social status in Rwandan society depending on the country

from which they have repatriated; those from Burundi apparently

have very little influence or power and are resented by Rwandans

who did not flee.

When Petitioners returned to Rwanda, Ndayshimiye made

contact with some relatives who had remained in the country. One

of them, his uncle Frederick Karuranga, deeded Ndayshimiye a

parcel of land on which to build a home. Ndayshimiye put off

construction for financial reasons.

In 2004, two years after Karuranga’s death, Petitioners

began building a home on the lot. Ndayshimiye’s aunt, Primitive

Musabwasoni, contested their right to the land, telling Ndayshimiye

that he was not a member of the family and that he should go back

to Burundi. She also attempted to sell the land to someone else for

a significant sum of money. Musabwasoni is well-connected in

Rwandan society; among her children are Reverien Claude

Rugwizangoga (“Reverien”), a major in the Rwandan national

police, John Fayinzoga, the chairman of a commission to

demobilize the Rwandan army, and Gilbert Twgirunukiza, an

executive in the president’s office.

Ndayshimiye filed a complaint concerning the land dispute

before a community tribunal, which resolved the matter in his favor

in November 2004. Around March 2005, Ndayshimiye began

receiving anonymous phone calls several times a week on his work

phone in which he was told that he was not Rwandan, was stealing

land that did not belong to him, and must return to Burundi.

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Ndayshimiye recognized the voice on some of the phone calls as

his aunt’s son, Reverien. In one call, the speaker said that if

Ndayshimiye’s family did not return to Burundi on their own they

would be thrown into the Akagera River to return there. Petitioners

construe this threat as a reference to the 1994 Rwandan genocide,

during which massacred Tutsis were dumped into the Akagera.

These phone calls lasted through June 2006. Murekatete also

received calls in June 2006, at Petitioners’ home, on which she

identified Reverien’s voice.

Frightened of the possible consequences, Ndayshimiye did

not resume construction on the land despite his legal victory. Nor

did he seek protection from the authorities, believing that the

influence of Musabwasoni and her sons in the government, along

with his own low social status, would render that attempt futile.

Ndayshimiye and Murekatete remained in a rental property about

thirty minutes away from the disputed land.

Despite their inaction regarding the land, on three occasions

in May and June 2006 Reverien came to Petitioners’ residence at

night in his police uniform, armed and accompanied by other

armed police officers. Each time, he identified himself as a member

of the police and asked for Ndayshimiye. Upon being told that

Ndayshimiye was working, Reverien told Murekatete that her

husband was Burundian, not Rwandan, and must go back. On the

third visit, Reverien said, “If you don’t want to go back when it’s

good, you’re going back badly.” (A.R. 229.)

Because of these threats, Petitioners sought to leave

Rwanda. They did not want to return to Burundi because of

ongoing ethnic tensions there and the possibility of civil conflict.

Ndayshimiye, who worked as a driver at the United States embassy,

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was invited by a U.S. citizen to visit his home in Virginia and

obtained tourist visas for himself, his wife, and their children to go

to the United States. During Reverien’s second visit to Petitioners’

house, he searched Murekatete’s purse and found her American

visa. At that point Reverien asked Murekatete if she had told

Ndayshimiye yet that he must return to Burundi.

Petitioners entered the United States on September 11, 2006.

Upon arrival, they were informed that their visas had been

cancelled in June 2006, apparently because a co-worker of

Ndayshimiye’s at the U.S. embassy in Rwanda had told the State

Department that Petitioners were selling off their belongings and

were not planning to return to Rwanda when their visas expired.

That co-worker reportedly also worked with the Rwandan national

police. Ndayshimiye and Murekatete believed Musabwasoni and

Reverien had orchestrated the cancellation of their visas through

the co-worker. They were afraid to return to Rwanda because of the

possibility of further persecution and thus sought refuge in the

United States. They applied for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”).

To be granted asylum, Petitioners were required to show that

they were “unable or unwilling” to return to Rwanda “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.” 8 U.S.C. § 1101(a)(42). After a merits

hearing, an Immigration Judge (“IJ”) denied Petitioners’

applications on January 4, 2007. That ruling rested primarily on the

IJ’s finding that Ndayshimiye and Murekatete had failed to show

that Musabwasoni’s past persecution was motivated by their

imputed nationality or social group. The IJ reviewed Petitioners’

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case under the statutory “mixed-motives” standard of the

Immigration and Nationality Act (“INA”) § 208(b)(1)(B)(i), 8

U.S.C. § 1158(b)(1)(B)(i). That provision was enacted in 2005 as

part of the REAL ID Act to permit asylum for an applicant who

could establish that, even if a persecutor had more than one motive,

“race, religion, nationality, membership in a particular social group,

or political opinion was or will be at least one central reason for

persecuting the applicant.” Id. The IJ concluded that nationality

and/or social group had played no part in the threats against

Petitioners. She found that the land conflict alone, a simple “family

dispute,” instigated the friction between Ndayshimiye and his aunt.

(A.R. 68.) The IJ’s opinion included no conclusion as to

Ndayshimiye’s or Murekatete’s credibility.

Petitioners appealed this decision to the BIA on January 18,

2007. The BIA affirmed in a published precedential opinion. In re

J– B– N– & S– M–, 24 I. & N. Dec. 208 (B.I.A. 2007). In

interpreting § 208, the BIA reasoned that, though “central” may be

defined as “having dominant power, influence, or control,”

Congress’s use of the phrase “one central reason” rather than “the

central reason” indicated that under § 208 a protected ground need

not be the single dominant reason for an applicant’s persecution.

Id. at 212-13. Next, the BIA turned to the conference report for the

REAL ID Act, which states that a protected ground is not a

“central” reason if it is simply “incidental or tangential to the

persecutor’s motivation.” Id. at 213 (quoting H.R. Rep. No. 109-

72, at 163 (2005)). Relying on dictionary definitions of “incidental”

and “tangential,” the BIA construed § 208 to require an applicant

for asylum to show that a protected ground is more than

“incidental, tangential, superficial, or subordinate to another reason

for harm.” In re J– B– N– & S– M–, 24 I. & N. Dec. at 213.

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Based on this reading of the statute, the BIA held that, even

taking Petitioners’ testimony as true, Ndayshimiye’s conflict with

his aunt was “fundamentally a personal dispute” motivated by

Musabwasoni’s desire to obtain Ndayshimiye’s land and sell it for

a profit, with any prejudice related to Petitioners’ Burundian

background playing an “incidental” role. Id. at 215-16. Therefore,

the BIA dismissed Petitioners’ appeal as to the asylum ruling, also

concluding that they were not entitled to withholding of removal or

relief under CAT. Id. at 217. On July 23, 2007, Petitioners timely

filed a petition for review of the BIA’s decision with this court,

arguing that their asylum application should have been granted.1

II.

Review of the BIA’s interpretation of § 208 is de novo,

though we must defer to its reading of the statute where appropriate

under Chevron v. Natural Resources Defense Council, 467 U.S.

837 (1984). Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).

We review the BIA’s factual determinations under the substantial

evidence standard, affirming them unless the record evidence

would compel any reasonable factfinder to conclude to the

contrary. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003).

III.

An alien will be granted asylum in the United States only if

1

Although Petitioners ostensibly challenge the denial of

their CAT claim (Opening Br. of Petrs. 2 n.1, 15, 19-20), they do

not present any grounds for rejecting the BIA’s conclusion that

they face no clear probability of torture if returned to Rwanda. (See

generally id.)

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he or she is a “refugee” who is “unable or unwilling” to return to

his or her native country “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.” 8

U.S.C. § 1101(a)(42); see also Immigration & Naturalization Serv.

v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (holding that

persecution “on account of” a protected category must be “because

of” that category). Therefore, a key task for any asylum applicant

is to show a sufficient “nexus” between persecution and one of the

listed protected grounds.

Prior to the passage of the REAL ID Act in 2005, there was

no statutory standard for judging whether persecution was “on

account of” a protected characteristic where other, unprotected

motivations might explain an applicant’s persecution. The BIA and

the courts, however, interpreted § 1101(a)(42) to allow for “mixed-

motive” persecution, as long as the applicant’s protected status was

at least one of the causes of the persecution. See Singh v. Gonzales,

406 F.3d 191, 196 (3d Cir. 2005); In re S– P–, 21 I. & N. Dec. 486,

495 (B.I.A. 1996). Along with other circuits, we resolved that an

applicant need only show that his or her persecution was caused “at

least in part” by membership in a protected group. See Chang v.

Immigration & Naturalization Serv., 119 F.3d 1055, 1065 (3d Cir.

1997); see also Deloso v. Ashcroft, 393 F.3d 858, 860-61 (9th Cir.

2005); Mihaylov v. Ashcroft, 379 F.3d 15, 22 (1st Cir. 2004).

In 2005, Congress passed the REAL ID Act. Among other

things, the Act amended the INA to include a standard for

evaluating evidence of persecution based on mixed motives. As

noted above, the paragraph inserted into § 208 provides that an

“applicant must establish that race, religion, nationality,

membership in a particular social group, or political opinion was

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or will be at least one central reason for persecuting the applicant.”

8 U.S.C. § 1158(b)(1)(B)(i), INA § 208 (b)(1)(B)(i). Petitioners

now call into question the BIA’s interpretation of that “one central

reason” standard as requiring an asylum applicant to show that a

protected characteristic was more than “incidental, tangential,

superficial, or subordinate to another reason for” his or her

persecution.

A.

In examining the BIA’s interpretation of § 208, we must

apply the two-step inquiry set out in Chevron. The first step

requires us to decide “whether Congress has directly spoken to the

precise question at issue.” 467 U.S. at 842. If the plain language of

the statute is ambiguous, we proceed to the second step and

determine whether the BIA’s reading of the provision is a

reasonable one. Id. at 844. If so, we must let the interpretation

stand.

We conclude that the BIA’s interpretation of the “one

central reason” standard is in error only to the extent that it would

require an asylum applicant to show that a protected ground for

persecution was not “subordinate” to any unprotected motivation.

That particular term is inconsistent with the plain language of the

statute, cutting off our Chevron analysis at step one.

Section 208’s use of the phrase “one central reason” rather

than “the central reason,” which, as amicus points out, was a

deliberate change in the drafting of this provision, demonstrates

that the mixed-motives analysis should not depend on a hierarchy

of motivations in which one is dominant and the rest are

subordinate. See Amicus Br. 8-10; In re J– B– N– & S– M–, 24 I.

& N. Dec. at 212-13. This plain language indicates that a

persecutor may have more than one central motivation for his or

her actions; whether one of those central reasons is more or less

important than another is irrelevant. The BIA acknowledged this in

refusing to define a central reason within the meaning of § 208 as

a “dominant” motivation. Id. at 212. The same logic forbids an

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interpretation that would impose a mirror image of the rejected

“dominance” test: the requirement that a protected ground, even if

a “central” reason for persecution, not be subordinate to any other

reason.

It is true that some cases have already cited the BIA’s

interpretation of § 208 without objection to its form. See Singh v.

Mukasey, 543 F.3d 1, 5 (1st Cir. 2008); Gomez-Zuluaga v. Att’y

Gen., 527 F.3d 330, 340, 345 (3d Cir. 2008); Parussimova v.

Mukasey, 533 F.3d 1128, 1135 (9th Cir. 2008); Abdel-Rahman v.

Gonzales, 493 F.3d 444, 453 n.12 (4th Cir. 2007). However, of

these cases, only Parussimova discussed the mixed-motives

standard at any length, and it implicitly supports the excision of the

word “subordinate.” In Parussimova, though Judge O’Scannlain

briefly referred to the BIA’s construction of § 208, he went on to

state:

[A]n asylum applicant need not prove that a

protected ground was the only central reason for the

persecution she suffered. The Act requires that a

protected ground serve as “one central reason” for

the persecution, naturally suggesting that a

persecutory act may have multiple causes. Second,

an applicant need not prove that a protected ground

was the most important reason why the persecution

occurred. The Act states that a protected ground

must constitute “at least one” of the central reasons

for persecutory conduct; it does not require that such

reason account for 51% of the persecutors’

motivation.

533 F.3d at 1134 (emphasis added). Though our disapproval of the

term “subordinate” is based on a plain reading of the language of

§ 208, Congress’s goal of “resolv[ing] conflicts between fora” by

enacting this provision also weighs in favor of a mixed-motives

standard that is consistent with this passage from Parussimova.

H.R. Rep. No. 109-72, at 162.

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Once the word “subordinate” is removed, we are left with

the BIA’s reading of § 208 as dictating that asylum may not be

granted if a protected ground is only an “incidental, tangential, or

superficial” reason for persecution of an asylum applicant. This

corrected definition is consistent with the language of the statute.2

“Central” is relevantly defined as “of primary importance,”

“essential,” or “principal.” See Parussimova, 533 F.3d at 1134

(citing Merriam-Webster’s Collegiate Dictionary 201 (11th ed.

2003); American Heritage Dictionary 302 (4th ed. 2000)). These

definitions are a reasonable foundation for the BIA’s conclusion

that Congress, in including the term “central,” meant to preclude

asylum where a protected ground played only an incidental,

tangential, or superficial role in persecution. See also Merriam-

Webster’s Collegiate Thesaurus 117 (1988) (listing “peripheral” as

antonym of “central”); Roget’s 21st Century Thesaurus 618 (3d ed.

2005) (listing “incidental,” “tangential,” and “superficial” as

synonyms of “peripheral”). In fact, the BIA derived its

interpretation from Congress’s own words: the conference report

for the REAL ID Act stated that the language of § 208 was “almost

identical” to a previously proposed regulation that would require a

protected characteristic to be more than “incidental or tangential to

the persecutor’s motivation.” H.R. Rep. No. 109-72, at 163 (citing

65 Fed. Reg. 76,588, 76,592 (Dec. 7, 2000)).

By contrast, the plain meaning of this provision and the

2

This interpretation does not, as Petitioners fear, have any

impact on what type of evidence an IJ may require to show

persecution on a protected ground. 8 U.S.C. § 1158(b)(1)(B)(ii)

makes clear that an asylum applicant’s credible account may be

sufficient to prove that a protected characteristic is one central

reason for persecution of the applicant. See also In re J– B– N– &

S– M–, 24 I. & N. Dec. at 214 (stating that “testimonial evidence”

alone may be used to meet burden of showing persecutors’

motivation).

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accompanying conference report contradict Petitioners’ suggestion

that § 208 simply adopts the pre-2005 requirement that persecution

have been motivated “at least in part” by a protected ground.

Foremost, the word “central” would be rendered superfluous if

asylum could be granted where a protected ground played any part,

no matter how small, in motivating the persecution of the applicant.

See United States v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005)

(“[C]ourts should construe statutory language to avoid

interpretations that would render any phrase superfluous.”).

Additionally, the conference report cites only pre-enactment

cases going beyond the “at least in part” threshold as consonant

with the new statutory standard. H.R. Rep. No. 109-72, at 163

(referring to opinions requiring that persecution be motivated “in

meaningful part” or “primarily” by a protected ground and another

case denying asylum where persecution stemmed “mainly” from

some other motivation) (quoting Girma v. Immigration &

Naturalization Serv., 283 F.3d 664, 668 (5th Cir. 2002);

Ambartsoumian v. Ashcroft, 388 F.3d 85, 91 (3d Cir. 2004);

Useinovic v. Immigration & Naturalization Serv., 313 F.3d 1025,

1033 (7th Cir. 2002)). While the report does note that the “statutory

standard [of § 208] is . . . in keeping with decisions of reviewing

courts,” H.R. Rep. No. 109-72, at 163 (2005), the same paragraph

states that before the enactment of the REAL ID Act, there was “no

uniform standard for assessing motivation,” and goes on to make

clear that only certain pre-2005 opinions are being given legislative

sanction. In particular, the report expresses disapproval of Borja v.

Immigration & Naturalization Service, 175 F.3d 732 (9th Cir.

1999) (en banc), a case that relied on the “at least in part” standard.

Id. at 736; see also Parussimova, 533 F.3d at 1134 (holding that the

enactment of the “one central reason” standard invalidates the

Ninth Circuit’s prior “at least in part” analysis).

Therefore, we hold that once the term “subordinate” is

removed, the BIA’s interpretation constitutes a reasonable, valid

construction of § 208’s “one central reason” standard.

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B.

Regardless of the BIA’s misstep in interpreting § 208, its

denial of Petitioners’ application for asylum still stands because it

was based on a finding that their Burundian origin was no more

than an incidental factor in their persecution, a finding that is

supported by substantial evidence in the record. See Gomez-

Zuluaga, 527 F.3d at 340. Remand for reconsideration under the

corrected mixed-motives standard is therefore not necessary.

See Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005) (denying

petition for review of immigration judge’s decision without a

remand, despite legal error, because result was still supported by

substantial evidence); Mahmood v. Gonzales, 427 F.3d 248, 253

(3d Cir. 2005) (holding remand unnecessary where outcome is

clear as a matter of law).

Applicants for asylum bear the burden of providing “some

evidence of [a motive based on a statutorily protected ground],

direct or circumstantial.” Elias-Zacarias, 502 U.S. at 483. Here, the

BIA affirmed the IJ’s holding that Petitioners had not satisfied that

burden based on their own testimony that they had enjoyed a

conflict-free relationship with Musabwasoni for eight years,

without evidence of persecution or harassment of any kind. Only

in 2004, when the land dispute arose, did Musabwasoni exhibit any

hostility toward Petitioners. Even once this conflict began, the

record contains just a few remarks by Petitioners’ alleged

persecutors referencing their Burundian background, always in the

context of telling Petitioners to return to Burundi so that

Musabwasoni could take the land.3

3

The scenario postulated by the amicus brief, in which a

shopkeeper in Nazi Germany peacefully coexists with a

neighboring Jewish merchant until some business conflict arises,

but then vandalizes the Jewish merchant’s shop with religious

slurs, is well taken. See Amicus Br. 13. Where such strong

evidence of religious hatred in addition to another, non-protected

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Given these facts, it was reasonable for the BIA to conclude

that even if Reverien’s remarks suggested that Petitioners’

persecution might be based on their Burundian background, the

eight years of prior peace between Petitioners and Musabwasoni

dispelled any inference that such animus was a significant reason

for their conflict. Cf. Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir.

2005) (holding that the use of an ethnic slur during an otherwise

ordinary robbery was not enough to show that the robbers acted

because of their victim’s ethnicity); Amanfi v. Ashcroft, 328 F.3d

719, 724 (3d Cir. 2003) (determining that there had been no

persecution where men took the asylum applicant captive after his

father, the head of a Christian ministry, denounced their religious

practices, as this was simply a “private dispute”).4

Petitioners argue that Ndayshimiye’s and Murekatete’s

Burundian background was inextricably intertwined with the

underlying land dispute, not “incidental” to it: Musabwasoni’s

resentment of Ndayshimiye for reentering the family and taking

land that she apparently viewed as rightfully hers cannot be wholly

separated from the fact that Ndayshimiye had been out of contact

with his Rwandan relatives exactly because his parents fled to

Burundi. However, we have previously held in Ambartsoumian v.

Ashcroft, 388 F.3d 85 (3d Cir. 2004), that such factually

intertwined explanations for persecution are irrelevant where the

proximate motivation for mistreatment of an applicant is not a

motivation is available, it might compel a finding of persecution

based on a protected ground. In this case, however, there is simply

not the same level of evidence in the record to support Petitioners’

claims.

4

Although these cases pre-date the passage of the REAL ID

Act, they remain valid. Lie and Amanfi were denied asylum even

under the forgiving “at least in part” standard; to grant asylum to

Ndayshimiye and Murekatete under the more demanding “one

central reason” test would be illogical.

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protected ground.

In Ambartsoumian, Garegin Ambartsoumian, an Armenian

man who had been living in Ukraine, sought asylum based on an

allegation that he had been persecuted in Ukraine because of his

ethnicity. Id. at 91. The court held that any persecution stemmed

from Ambartsoumian’s inability to speak Ukrainian and his lack of

a residency permit to live in Ukraine. Id. Although both of those

circumstances could be traced to the fact that Ambartsoumian was

Armenian, the court concluded that the adverse treatment he faced

did not qualify as “ethnic persecution.” 5 Id.

Ambartsoumian thus supports the BIA’s decision here. Just

as Ambartsoumian’s illegal resident status and his lack of fluency

in Ukrainian were a product of his non-Ukrainian background,

Petitioners’ conflict with Ndayshimiye’s aunt came about in part

because their absence from Rwanda left them disconnected from

the family members who had remained there. Yet

Ambartsoumian’s persecutors would presumably have acted

regardless of which particular country he actually came from;

similarly, Musabwasoni and her sons seem to have been motivated

at most by their resentment of the usurpation of family property by

“outsiders,” regardless of where those outsiders might have been

5

Petitioners attempt to distinguish Ambartsoumian on the

grounds that in that case the IJ found that Armenians did not

generally face persecution in Ukraine, a finding that is absent here.

However, Ambartsoumian simply referred to that evidentiary

deficit as an alternative rationale for upholding the IJ’s decision to

deny asylum. The opinion affirmed the IJ’s two separate findings,

that Armenians did not generally face persecution in the Ukraine

and that Ambartsoumian in particular was persecuted for reasons

besides his ethnicity, as both “well supported” by the evidence,

indicating that either would have sufficed as a basis for the ultimate

result. 388 F.3d at 91.

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born.6

Parussimova offers yet another example reinforcing our

approach to mixed-motive persecution cases in the wake of the

REAL ID Act. In that case, the Ninth Circuit rejected an asylum

application similar to that of Ndayshimiye and Murekatete.

Parussimova, a Kazakhstani citizen of Russian heritage, had been

attacked by two men while walking alone on the street. They

berated her for her work with an American company (evidenced by

a pin from the company that she was wearing at the time) and told

her she was a Russian pig and had to get out of the country. 533

F.3d at 1131. The court held that although her assailant’s use of an

insult related to Parussimova’s Russian heritage showed “that the

men were aware of [her] ethnicity and used it as a means to

degrade her,” there was no evidence in the record of a “causal

connection between [Parussimova’s Russian ethnicity] and the

men’s attack or the threats that followed afterwards.” Id. at 1135.

Similarly, in this case the use of threats referencing Petitioners’

Burundian background does not prove that their nationality was a

cause of their persecution.

Our existing precedent affirms the BIA’s denial of asylum

here. Furthermore, the BIA’s use of an erroneous standard was

harmless, as its opinion did not rest on a finding that Petitioners’

6

We can confidently rely on the reasoning in

Ambartsoumian because it was specifically cited with approval in

the conference report’s discussion of the new mixed-motives

standard. H.R. Rep. No. 109-72, at 163. The conference report did

cite Ambartsoumian specifically for its phrasing of the mixed-

motives standard, rather than expressing approbation of all aspects

of the opinion. However, even if Congress cited the case without

regard to the actual result, Ambartsoumian remains good Third

Circuit law since it was evaluated under an analytical approach

that is “in keeping with” the standard of § 208. H.R. Rep. No. 109-

72, at 163 .

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Burundian background was subordinate to other reasons for

persecution. Rather, the BIA determined that Petitioners’ roots in

Burundi played only a “tangential” or “incidental” role in their

persecution. In re J– B– N– & S– M–, 24 I. & N. Dec. at 216.

Ndayshimiye and Murekatete have not pointed to any evidence that

would compel us to overturn this reasonable conclusion.

Petitioners’ allegation that Musabwasoni was responsible

for the cancellation of their visas is insufficient to undermine the

BIA’s decision. There is nothing in the record supporting what

Ndayshimiye has admitted is simply his own belief regarding how

the visas came to be cancelled, whereas the government has

provided evidence that it simply acted on independent information

that Petitioners intended to overstay their visas. We additionally

find it difficult to reconcile Petitioners’ insistence that

Musabwasoni wanted them to leave so she could take possession

of their land with the idea that she would stand in the way of their

departing Rwanda for the United States.

Finally, though we recognize the BIA’s error in referencing

a non-existent “political group” claim while failing to explicitly

address Petitioners’ social group claim, the BIA’s decision does

indicate that it considered Ndayshimiye’s and Murekatete’s

Burundian nationality and their status as repatriated refugees to be

intertwined. See In re J– B– N– & S– M–, 24 I. & N. Dec. at 209

n.2. Furthermore, the BIA clearly concluded that Petitioners’

Burundian background, whether it is described as their imputed

nationality or their social status as old case-load refugees, played

no central role in their persecution. Id. at 216 (citing lack of

evidence that Petitioners’ “Burundian origins or their status as

repatriated refugees was more than a tangential motivation for the

threats against them”) (emphasis added). Therefore, the BIA’s

failure to mention the “social group” claim by name does not

prevent us from “meaningfully review[ing] its decision” and

affirming it on the same grounds as the nationality claim. Vente v.

G onzales, 415 F.3d 296, 302-03 (3d C ir. 2005).

Compare Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 290

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(3d Cir. 2007) (finding IJ’s decision inadequate because it did not

address asylum applicant’s ground for persecution by name and

because actual analysis of whether persecution had nexus to

protected ground was conclusory).

IV.

For the foregoing reasons, we will deny the petition for

review.

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