Sealed Petitioner v. Sealed Respondent

• Decision Date: 15 July 2016
• Docket Number: No. 14-60697,14-60697
• Citation: 829 F.3d 379
• Parties: Sealed Petitioner, Petitioner, v. Sealed Respondent, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

829 F.3d 379

Sealed Petitioner, Petitioner

v.Sealed Respondent, Respondent.

No. 14-60697

United States Court of Appeals, Fifth Circuit.

July 15, 2016

Prerak Shah, William Thomas Thompson, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, Prerak Shah, Office of the Solicitor General, Office of the Attorney General, Austin, TX, Charles Roth, National Immigrant Justice Center, Chicago, IL, for Petitioner.

Aaron R. Petty, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent.

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON

, Circuit Judge:

Petitioner, a native and citizen of Ethiopia, petitions for review of the decision of the Board of Immigration Appeals (“BIA”), upholding the Immigration Judge's (“IJ”) denial of his application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158

and 1231(b)(3). Petitioner arrived in the United States without a valid entry document. He then applied for asylum and withholding of removal under the INA, and protection under the Convention Against Torture (“CAT”). In the subsequent applications and hearings, Petitioner testified that he had been tortured by the Ethiopian government because it suspected he and his family members supported a terrorist organization called the Ogaden National Liberation Front (“ONLF”). The IJ denied relief because Petitioner did not show that he was persecuted on account of a protected ground as required by §§ 1158 and 1231(b)(3). However, the IJ withheld his removal under CAT. Because the IJ and the BIA did not consider several factors essential to determining whether one central reason for the Ethiopian government's maltreatment of Petitioner was persecution on account of a protected ground, we remand for that consideration.

I.

A.

The country of Ethiopia is divided into several regional states based on ethnic and linguistic distinctions. The Somali Regional State lies in the eastern part of the country and is inhabited largely by ethnic Somalis. There is a large clan of ethnic Somalis called the Ogaden who live mainly in five of the Somali Regional State's nine zones, including Fik. The ONLF is an armed, violent, and fragmented separatist group that operates in the Somali Regional State and is primarily made up of members of the Ogaden clan. The ONLF interacts regularly with civilians, obtaining food and water from a network of civilian supporters in the towns and villages of the Ogaden area. In 2007, the ONLF attacked an oil installation, which resulted in the capture and death of seventy civilians and Chinese oil workers. In response to that attack, the Ethiopian government created the Liyu police force to carry out a counterinsurgency campaign in the Ogaden area. The ONLF is one of five groups designated as terrorist organizations by the Ethiopian government in June 2011.

Petitioner testified to the following. Petitioner's father owned a grocery store in Fik, a city in which approximately 97% of the population belongs to the Ogaden clan. Petitioner and his family are members of the Ogaden clan. In January 2012, five armed members of the Liyu police force arrived at the grocery store where Petitioner and his father were present. The Liyu officers accused Petitioner's father of using proceeds from his store to support the ONLF. Petitioner's father denied being an ONLF supporter, but the officers did not believe him. The officers punched, slapped, and kicked Petitioner's father, and hit him with the butts of their rifles. They then arrested him, warning Petitioner to close the store and leave. Petitioner's father was detained at a military camp in Fik for approximately six months without being criminally charged. At the end of the six months, he was killed. Officials at the military camp stated that they shot him during an escape attempt. When Petitioner asked why his father was being detained, he was only told that government officials had a “strong suspicion” that he was an ONLF supporter.

In August 2012, the Liyu police approached Petitioner's maternal uncle, Abdi Yusuf Ali, while he was teaching school and asked Ali to join them in fighting the ONLF. Ali refused, stating that he was a teacher and had no military training. Ali was then arrested, and a week later, he was killed while in detention. When Ali's father, Petitioner's grandfather, went to the camp to find out why Ali had been killed, Petitioner's grandfather was accused of being an ONLF supporter and was arrested. Petitioner's grandfather was still in custody at the police station in Fik at the time of Petitioner's asylum hearing in February 2014.

A year after his father's killing, Petitioner obtained a permit from a city administrator allowing him to reopen his father's grocery store. He worked at the grocery store for approximately one month before three armed Liyu policemen arrived in December 2012 and asked if Petitioner was continuing his father's work of supporting the ONLF. Petitioner responded that he did not support the ONLF and wished only to support his family. In response, the officers beat him, arrested him, and brought him to the same military camp where his father and uncle had been taken.

Petitioner was detained at the military camp for two months and ten days. During that time, two members of the Liyu police force interrogated and physically abused Petitioner approximately six times. The officers punched and slapped Petitioner, and kicked him with their boots. They also hit him with the butts of their rifles, leaving a scar on his forehead. They slashed his neck with a knife, burned toenails on each of his feet with a cigarette lighter, and pulled two toenails from his feet. While the officers were physically abusing Petitioner, they insisted he confess to being an ONLF supporter and give them names of other ONLF supporters in Fik. Petitioner was told that he would remain in custody until he agreed to cooperate with the Liyu police and act as a spy for them. Petitioner agreed and was released. However, he fled the region the next day. Petitioner is not a member of the ONLF, and he does not know any members of the ONLF.

B.

Petitioner arrived in the United States in August 2013 without a valid entry document. Upon arrival, he applied for admission in Brownsville, Texas, and was issued a notice to appear for a charge of removability as an immigrant without a valid entry document at the time of his application for admission under 8 U.S.C. § 1182(a)(7)(A)(i)(I)

. Following his appearance, the IJ ordered he be removed, and Petitioner subsequently filed an application for asylum and withholding of removal under the INA and withholding of removal under CAT. The IJ then conducted several hearings to determine Petitioner's eligibility for relief. The IJ issued an oral decision, denying Petitioner asylum and withholding of removal under the INA, but granting him relief under CAT.

The IJ found that Petitioner had testified credibly and that he had presented corroborating evidence. He acknowledged Petitioner's contention that the Ethiopian government's actions against him were based (1) on a political opinion that the government imputed to him and (2) on his membership in the particular social groups of the Ogaden tribe and of his family. The IJ assumed arguendo that the two claimed groups were particular social groups within the meaning of the INA and that Petitioner was a member of both groups. The IJ did not address whether Petitioner's treatment rose to the level of persecution and instead focused on the reason for the government's interest in Petitioner. He found that the sole reason the Ethiopian government took any action against Petitioner was because it was “attempting to suppress the violent activities of the ONLF and it believed, even if wrongly, that [Petitioner] was a financial supporter of the ONLF like his father was” and that Petitioner “knew supporters of the ONLF in Fik who[m] he could reveal to the government.” The IJ cited several cases from this circuit and the BIA stating that investigation of terrorism is not harm perpetrated on account of a protected ground for asylum purposes. The IJ then denied Petitioner's applications for asylum and withholding of removal under the INA.

The IJ also considered Petitioner's claim for protection under CAT. He noted that Petitioner had “suffered serious physical abuse by Ethiopian government agents,” that he had been released from prison only because he agreed to work as a government spy, and that he had fled Ethiopia as soon as he was released from prison. The IJ found that it was likely that the Ethiopian government would still be interested in Petitioner based on its belief that he is an ONLF supporter and that it was more likely than not that Petitioner would be tortured by the Ethiopian government no matter where in that country he tried to settle. The IJ thus ordered that Petitioner's removal to Ethiopia be withheld pursuant to CAT. Petitioner timely appealed the denial of his application for asylum and withholding of removal under the INA.

On appeal, the BIA affirmed the IJ's conclusions. In a one-page decision, a single member of the BIA found that the IJ had “correctly applied the case law regarding terrorism investigations.” It noted that the IJ had considered Petitioner's “argument that the government arrested and harmed him for reasons other than suspected terrorist support” and that the IJ had “concluded that investigation of [Petitioner's] ties to ONLF was the only reason (i.e. there was no other reason, central or otherwise)” for his persecution. Finding no clear error in the IJ's determination, the BIA concluded that Petitioner did not meet his burden of proof for asylum or withholding of removal under the INA. Petitioner timely sought review in this court.

II.

A.

Generally, we review only the final decision of the BIA. Zhu v. Gonzales , 493 F.3d 588, 593 (5th Cir.2007)

. When, as in the present case, the BIA's...