Doe v. Attorney General of United States, 041620 FED3, 18-1342
| Judge | Before: RESTREPO, ROTH and FISHER, Circuit Judges. |
| Court | U.S. Court of Appeals — Third Circuit |
| Date | 16 April 2020 |
| Parties | JOHN DOE, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent. |
| Docket Number | 18-1342 |
Argued: April 30, 2019
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A209-390-025) Immigration Judge: Leo Finston
Adrian N. Roe Paige Beddow [ARGUED] Scott A. Cain [ARGUED] (Admitted Pursuant to Third Circuit LAR 46.3) West Virginia University College of Law Pro Bono Counsel for Petitioner
Jeffrey R. Meyer Jonathan K. Ross [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Counsel for Respondent
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
OPINION
RESTREPO, CIRCUIT JUDGE.
Petitioner fled his home country of Ghana and entered the United States without authorization after his father and neighbors assaulted him and threatened his life when they discovered that he was in a same-sex relationship. Petitioner seeks asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection from removal under the Convention Against Torture (CAT), because he fears being persecuted or tortured on account of his sexual orientation and identity as a gay man if returned to Ghana - a country that criminalizes same-sex male relationships and has no proven track record of combatting widespread anti-gay violence, harassment and discrimination. The Immigration Judge (IJ) denied his application and ordered his removal, and the Board of Immigration Appeals (BIA) affirmed.
He now petitions this Court for review of the BIA's final decision. He argues that the BIA erred in finding, among others, that he had not suffered past persecution and did not have a well-founded fear of future persecution. For the following reasons, we will vacate the BIA's decision and remand for further proceedings consistent with this opinion.1
I. BACKGROUND
A. Petitioner's Experience in Ghana
Petitioner was born and raised in Ghana's capital, Accra. He first realized he was gay when he was fourteen years old. He came to this realization after sharing an intimate encounter with another boy, whom he had met at Muslim school. One afternoon, the two boys were spending time together in Petitioner's bedroom and, after sharing a toffee that Petitioner had bought for his schoolmate, they had sex for the first time. Over the next twelve years, the two young men continued to see each other but kept their sexual relationship hidden. Being gay in Ghana, Petitioner believed, was simply "not acceptable." JA101. He could not speak to his family about his feelings because he worried that, as Muslims, they would disapprove of his sexual orientation or, even worse, that his father would kill him.
When Petitioner was twenty-six years old, his anxieties materialized into a harsh reality. One morning in January 2016, his father unexpectedly entered Petitioner's bedroom at the break of dawn and discovered him having sex with his partner. His father went into a rage and began shouting that "his son was hav[ing] sex with another man," JA215, and called on others to "come, come and witness what my son is up to[!]" JA99 (Tr. 37:20-21). He demanded answers from his son and condemned his actions: "Why do you engage in homosexuality? You have brought shame to this family and I will make sure you face the wrath of this evil deed." JA166.
Upon hearing this uproar, a crowd of neighbors gathered at Petitioner's house, forming a violent mob. Together with his father, the mob began to beat the two young men with stones, wooden sticks, and iron rods, and dragged them into a courtyard. Some in the mob wanted to report the young men to the police, but others began to argue over how best to punish them: death by burning or beheading.
Petitioner believed the death threats were real. He remembers being doused with kerosene, and hearing calls to set him on fire. He also saw someone in the mob brandish a "cutlass," JA215, a curved sword with a sharp edge like a machete. Fearing that his life was in danger, he managed to escape and ran naked, hurt and bleeding to a friend's house about ten minutes away. Petitioner told his friend about the attack and about his sexual relationship with his partner. His friend, too, became afraid. He worried that they could both be killed if people found out that Petitioner was hiding there.
Too frightened to call the police, or seek medical care, Petitioner asked his friend to drive him to neighboring Togo. But Petitioner did not feel safe there either; he was concerned that the Togolese government and people disliked gay men too. Within about two weeks, he retrieved his passport from his home with his friend's help and arranged to fly from Ghana to Ecuador. Petitioner has heard that his father has publicly disowned him for being gay, that he is still looking for him, and that he intends to kill him if he finds him.
Petitioner still worries about his partner of more than ten years. Despite numerous attempts, he has not been able to reconnect with him since that horrific day.
B. Procedural History
Petitioner eventually found his way to safety in the United States but entered the country without valid documents. Soon after, the Department of Homeland Security began proceedings to remove Petitioner and return him to Ghana. In the course of removal proceedings, he applied for asylum, among other forms of relief. Petitioner claimed that, after having been violently outed, attacked and threatened by his father and neighbors, he fears that he will be killed or otherwise persecuted in Ghana because he is gay.
The IJ denied Petitioner's application. Although he found portions of Petitioner's testimony to be less credible than others, the IJ declined to make an adverse credibility determination. Still, the IJ concluded that Petitioner had not established "past persecution" or a "well-founded fear of future persecution." JA24-25. Notably, the IJ observed that "there [was] no reason to believe that [Petitioner] would not be able to live a full life, especially if he were to continue to keep his homosexuality a secret." JA25. Petitioner appealed to the BIA.
The BIA affirmed the IJ's decision and dismissed the appeal. Though it credited Petitioner's account as credible, the BIA agreed that he had not established "past persecution" or a "well-founded fear or clear probability of future persecution." JA14, 15. The BIA "distance[d]" itself from the IJ's observation that Petitioner could live a "full life" if he kept "his homosexuality a secret." JA15.
Petitioner now seeks review of the BIA's decision.[2]
II. STANDARD OF REVIEW
"[P]ersecution" and "well-founded fear of persecution" are "findings of fact that we review under the deferential substantial evidence standard[.]" Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citation omitted). Under this evidentiary standard, we defer to factual findings "unless any reasonable adjudicator would be compelled to conclude to the contrary." Espinosa-Cortez v. Att'y Gen. U.S., 607 F.3d 101, 106-07 (3d Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)); Balasubramanrim v. I.N.S., 143 F.3d 157, 161 (3d Cir. 1998) ("We will uphold the agency's findings of fact to the extent they are 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.'") (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We accord no deference to factual findings that "are based on inferences or presumptions that are not reasonably grounded in the record." Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc) (quoting El Moraghy v. Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003)). If the BIA "mischaracterized and understated the nature of the evidence supporting [an applicant]'s claims," its findings are not supported by substantial evidence. Chavarria v. Gonzales, 446 F.3d 508, 517 (3d Cir. 2006).
If factual findings are based on a misunderstanding of the law, we will review the abstract legal determination de novo, subject to Chevron deference when applicable, to ensure uniformity in the application of the law. Huang v. Att'y Gen. U.S., 620 F.3d 372, 379 (3d Cir. 2010) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)); see Ramirez-Peyro v. Holder, 574 F.3d 893, 899 (8th Cir. 2009) (exercising de novo review where the BIA "misunderstood and misapplied the parameters" of the relevant legal standard, "leading [the BIA] to conduct improper factual findings when applying that standard"); Foroglou v. I.N.S., 170 F.3d 68, 70 (1st Cir. 1999) ("The [BIA's] application of the legal standards to specific facts is also entitled to deference," but "[a]bstract rulings of law are subject to de novo review.").
When the BIA affirms the IJ's determinations without expressly rejecting any of its findings and only adds its own gloss to the analysis, we may review both the BIA's and the IJ's decisions. Sandie v. Att'y Gen. U.S., 562 F.3d 246, 250 (3d Cir. 2009).
III. DISCUSSION
Under the INA, any person who is physically present in the United States, irrespective of his immigration status, may be granted asylum if he is a refugee within the meaning of the statute. 8 U.S.C. § 1158(a)(1), (b)(1). A refugee is anyone who is unable or unwilling to return to their 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." Id. § 1101(a)(42)(A). An applicant can meet this definition by showing either (i) that he suffered past...
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