Al Amiri v. Rosen

• Citation: 985 F.3d 1
• Decision Date: 11 January 2021
• Docket Number: No. 19-1447,19-1447
• Parties: Salim T. AL AMIRI, Petitioner, v. Jeffrey ROSEN, Acting U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

985 F.3d 1

Salim T. AL AMIRI, Petitioner,

v.Jeffrey ROSEN,^* Acting U.S. Attorney General, Respondent.

No. 19-1447

United States Court of Appeals, First Circuit.

January 11, 2021

J. Christopher Llinas, Ocean Pines, MD, with whom Llinas Law, LLC was on brief, for petitioner.

Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, and Nancy E. Friedman, Senior Litigation Counsel, were on brief, for respondent.

Before Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.^**

BARRON, Circuit Judge.

Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq's military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals ("BIA") denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA's ruling rejecting his CAT claim.

I.

Al Amiri was born in Iraq in 1983, but he then left that country with his family in 1991. He spent several years in refugee camps in Saudi Arabia before coming with his family to the United States. In November of 1994, Al Amiri was granted lawful permanent resident status in this country, where he has resided ever since. He has two children, both of whom are American citizens.

During the war in Iraq, he was hired by the U.S. government to train Army personnel. In that role, he taught soldiers about Iraq's cultural norms and how to interact appropriately with the general population in that country, including how to treat women and children and how to enter another's home respectfully. He completed his duties successfully and received a certificate of appreciation from the U.S. government for his services.

Since moving to the United States, Al Amiri has traveled to Iraq at least three times, in 2015, 2017, and 2018. On his most recent trip there, which began in May 2018, Al Amiri and his family spent six weeks visiting his grandmother, who was in poor health.

Al Amiri's petition for review may be traced to events that transpired upon his return to the United States from that last trip to Iraq. After flying home from Iraq and arriving at Logan International Airport in Boston, Massachusetts in July 2018, he applied for admission to enter the United States. At that time, U.S. Customs and Border Protection officers identified a 2015 conviction that Al Amiri had received for larceny under Michigan law for having stolen a phone. They concluded that, in consequence, he was subject to removal.¹

Al Amiri was served with a notice to appear in removal proceedings later that month. In October of that year, the Immigration Judge ("IJ") determined that the U.S. Department of Homeland Security had proved Al Amiri's removability by clear and convincing evidence and ordered his removal. Al Amiri had sought relief from removal by applying for asylum under § 208 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158, withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal under the CAT, as implemented by 8 C.F.R. § 1208.16 - .18. But, the IJ rejected each of these requests.

Al Amiri appealed the IJ's ruling to the BIA, which affirmed. He now petitions for review of the BIA's decision.

II.

We start with Al Amiri's challenge to the BIA's decision affirming the IJ's denial of his asylum claim. An applicant for asylum must satisfy various statutory requirements to secure that relief. See 8 U.S.C. § 1158(b). Among them is what is known as the "nexus" requirement, pursuant to which the applicant must show "that he is unwilling or unable to return to his country of origin ‘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.’ " Singh v. Mukasey, 543 F.3d 1, 4 (1st Cir. 2008) (quoting 8 U.S.C. § 1101(a)(42)(A) ).

If an applicant can show that he suffered past persecution, he is entitled to a presumption that his fear of suffering it in the future is well founded. Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 257 (1st Cir. 2004). Otherwise, he must "prove that his fear is both genuine and objectively reasonable." Id. To show that his fear is objectively reasonable, however, the asylum applicant need not demonstrate that it is more likely than not that he will be persecuted. INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ("One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.").

We consider questions of law de novo. Ye v. Lynch, 845 F.3d 38, 42 (1st Cir. 2017). We consider factual findings "under the deferential ‘substantial evidence’ standard, reversing only if a ‘reasonable adjudicator would be compelled to conclude to the contrary.’ " Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B) ). In applying that standard, we look not to isolated pieces of evidence but to the "record considered as a whole." Sanabria Morales v. Barr, 967 F.3d 15, 19 (1st Cir. 2020) (quoting Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014) ).

Al Amiri contends that the BIA erred in affirming the IJ's determination that he could not meet the nexus requirement on the ground that he had failed to show that the harm he fears he would endure in Iraq would be inflicted on account of his membership in a particular social group. Al Amiri also contends that the BIA erred in affirming the IJ's ruling denying his asylum claim for a separate reason. Here, he contends that the record fails to support the BIA's affirmance of the IJ's finding that he did not sufficiently show that he had an objectively reasonable basis for fearing that he would face harm in Iraq. We address each of these contentions in turn.

A.

The BIA agreed with the IJ's rejection of Al Amiri's contention that "Americanized or westernized individuals" in Iraq constitute a "particular social group." For that reason, the BIA agreed with the IJ that Al Amiri could not satisfy the nexus requirement by showing that he feared that he would be harmed in Iraq based on his membership in that group. The BIA reasoned that this "proposed social group was vague" and "did not have sufficient particularity or social distinction," citing to one of this Court's opinions holding that secularized, westernized Pakistanis do not constitute a particular group. See Ahmed v. Holder, 611 F.3d 90, 95 (1st Cir. 2010).

The BIA's determination that the IJ correctly ruled that "Americanized or westernized individuals" in Iraq are not "sufficiently particularized to constitute a cognizable particular social group," however, does not in and of itself suffice to support the conclusion that Al Amiri cannot satisfy the nexus requirement. For, as we will explain, Al Amiri also tied his nexus showing to his asserted membership in a distinct "particular social group."

Before the IJ and the BIA, Al Amiri put forth evidence to show that while he was residing in the United States he had served as a paid contractor for the U.S. Army during the Iraq War and, in that capacity, had helped to train its soldiers about Iraqi culture and customs in preparation for their deployment to Iraq. He also put forth evidence to show that Iraqis who provided assistance to the U.S. military in connection with that war themselves constituted a particular social group and that members of this group, because they had provided such assistance, were at risk of harm from not only members of the Iraqi military but also civilian members of various insurgent groups or militias operating in Iraq. Based on this evidence, Al Amiri then contended -- as a distinct ground for his asylum claim -- that the harm to which he feared he would be subjected if he were removed to Iraq would be inflicted on him on account of his membership in this group.

Notwithstanding that Al Amiri advanced this contention below, the BIA did not purport to rule in rejecting his asylum claim on nexus grounds that Iraqis who had assisted the U.S. military during the Iraq War did not constitute such a qualifying group. Thus, the BIA's ruling provides no basis for concluding that Al Amiri's asylum claim comes up short on the ground that he failed to identify a particular social group to which the harm that he fears that he would be subjected to in Iraq could be tied. See Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) (explaining that the focus of this Court's review is the "grounds invoked by the agency" and that "[t]he agency's decision cannot be supported on reasoning that the agency has not yet adopted" (first quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ; and then quoting P.R. Sun Oil Co. v. EPA, 8 F.3d 73, 79 (1st Cir. 1993) )).

B.

That said, as we have noted, an asylum applicant must show that he has a reasonable basis for fearing that he would suffer harm on account of his membership in a particular social group. Thus, the applicant must show not only that he subjectively fears being harmed on that basis, but also that it is objectively reasonable for him to fear such harm. For that reason, even if we assume that Al Amiri's prior work for the U.S. military made him a member of a "particular social group," he still must show that his fear of...