Fon v. Garland

Citation34 F.4th 810
Decision Date18 May 2022
Docket Number20-73166
Parties Stephen Tamufor FON, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Danielle Beach-Oswald, Beach-Oswald Immigration Law Associates PC, Washington, D.C., for Petitioner.

Brian Boynton, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Sarai M. Aldana, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves,** Judge.

Opinion by Judge Graber ;

Concurrence by Judge Graber ;

Concurrence by Judge Collins ;

Partial Concurrence and Partial Dissent by Judge Choe-Groves

GRABER, Circuit Judge:

Petitioner Stephen Tamufor Fon, a native and citizen of the United Republic of Cameroon, seeks review of the Board of Immigration Appeals' ("BIA") denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The BIA denied asylum and withholding of removal on the grounds that Petitioner had (a) failed to demonstrate past persecution and (b) failed to prove a nexus between the feared harm and a protected ground. We conclude that the record compels a finding of past persecution and that the agency's flawed reasoning as to nexus leaves us unable to conduct a meaningful review of that determination. We therefore grant the petition in part and remand for further proceedings as to asylum and withholding of removal. But substantial evidence supports the agency's denial of relief under CAT, so we deny the petition in part.

BACKGROUND

Cameroon contains both an English-speaking region and a French-speaking region. In October 2016, activists in the English-speaking region campaigned to expand the use of the English language in schools and courtrooms. The campaign turned violent and, when separatist fighters declared the English-speaking region's independence, the violence escalated into an ongoing war with the government of Cameroon. According to the 2018 Country Report from the United States Department of State, both sides have committed human rights abuses, including torture, rape, kidnappings, and indiscriminate killings of civilians.

Petitioner lived in Cameroon's English-speaking region. He worked as a laboratory assistant at a local hospital, and part of his work included cleaning patients' wounds. In December 2018, the hospital treated a patient who Petitioner suspected was a separatist fighter. While Petitioner tended to the wounds, four soldiers from the Cameroonian military "bashed into the ward" and "seized" the patient. Two soldiers took the patient away. The remaining two soldiers shouted at Petitioner and threatened to kill him if they caught him treating separatist fighters again. They then punched Petitioner and attacked him with a knife, leaving him with a three-inch scar on his left side.

Petitioner never returned to work at the hospital. But he continued to treat separatist fighters in his home. On two occasions, three separatist fighters knocked on Petitioner's door in the middle of the night, seeking medical treatment. Petitioner treated them. In January 2019, Petitioner's neighbor told him that Cameroonian soldiers "had come looking for" him and had ransacked his home. Assuming that the soldiers had "credible information" that "I had treated people at my place," and mindful of the earlier threat at the hospital, Petitioner hid at his friend's house. He returned home once to collect his things, but he otherwise lived with his friend until he left Cameroon in February 2019.

Six months later, in August 2019, Petitioner arrived in the United States. He applied for asylum, withholding of removal, and relief under CAT. In January 2020, an immigration judge ("IJ") expressly found him credible but denied all three applications. The BIA affirmed the denials, and this petition ensued.

DISCUSSION

We address, in turn, the BIA's denial of asylum, withholding of removal, and relief under CAT.

A. Asylum

To qualify for asylum, Petitioner must demonstrate that he "is unable or unwilling" to return to Cameroon "because of persecution or a well-founded fear of persecution on account of ... [his] political opinion." 8 U.S.C. § 1101(a)(42)(A). If Petitioner demonstrates past persecution, "then fear of future persecution is presumed." Deloso v. Ashcroft , 393 F.3d 858, 863 (9th Cir. 2005). Here, the BIA concluded that Petitioner did not suffer past persecution and, without a presumption of future persecution, had not established a well-founded fear of future persecution. The BIA also held that Petitioner failed to show a nexus between his feared harm and a protected ground. See, e.g. , Navas v. I.N.S. , 217 F.3d 646, 656 (9th Cir. 2000) (explaining that an asylum applicant must show harm "that is ‘on account of’ one of the statutorily-protected grounds"). We address below the agency's findings pertaining to past persecution and nexus.

1. Past Persecution

To establish past persecution, Petitioner must show past harm of a severity "that rise[s] to the level of persecution[.]" Id. The BIA rejected Petitioner's argument that the severity of the harms that he experienced rose to the level of persecution. We "review for substantial evidence the BIA's particular determination that a petitioner's past harm ‘do[es] not amount to past persecution.’ " Sharma v. Garland , 9 F.4th 1052, 1060 (9th Cir. 2021) (alteration in original) (citation omitted).1

"This circuit has defined persecution as the infliction of suffering or harm upon those who differ (in race, religion[,] or political opinion) in a way regarded as offensive." Korablina v. I.N.S. , 158 F.3d 1038, 1043 (9th Cir. 1998) (internal quotation marks omitted). But "persecution is an extreme concept that does not include every sort of treatment our society regards as offensive." Ghaly v. I.N.S. , 58 F.3d 1425, 1431 (9th Cir. 1995) (citation omitted). Accordingly, "some circumstances that cause petitioners physical discomfort or loss of liberty do not qualify as persecution, despite the fact that such conditions have caused the petitioners some harm." Mihalev v. Ashcroft , 388 F.3d 722, 729 (9th Cir. 2004).

"[A] good starting point for determining whether substantial evidence supports the BIA's resolution of the issue" are the seven non-exhaustive factors identified in Sharma . Sharma , 9 F.4th at 1063. Although those factors are not determinative, they "often arise in these types of cases" and they "guide our analysis." Id. at 1061.

Three of those factors are present here: physical injury, specific threats, and evidence of the country's political and societal turmoil. Id. at 1061–63. Soldiers stabbed Petitioner in the stomach, causing him to bleed enough that he required stitches, and leaving a three-inch scar. Petitioner testified that the soldiers threatened him that, "[i]f they catch me treating [separatist fighters], they will treat – they will kill me." In his written application, Petitioner stated that the soldiers "warned me if caught again, I will be killed."2 Over the next few weeks, Petitioner treated more separatist fighters at his house. Soldiers then came to his home, did not find him, and ransacked the home. Finally, undisputed evidence describes the English-speaking region of Cameroon as mired in a "crisis" that "developed into an armed conflict," which has triggered "serious human rights violations and abuses by" both sides.

We compare those facts to those in our recent decision in Aden v. Wilkinson , 989 F.3d 1073 (9th Cir. 2021). There, members of Al-Shabaab, a group in Somalia, raided a movie theater owned by the petitioner's brother. Id. at 1083. They beat the petitioner "and cudgeled him on the head with the butt of a rifle, causing him to bleed profusely." Id. To ensure that the theater remained closed, they stole equipment from the theater. Id. And, two weeks later, the petitioner's brother received a phone call from Al-Shabaab with a death threat aimed at the petitioner. Id. The petitioner never returned to his job at the theater, remained in hiding, and fled Somalia within two months. Id. We emphasized that, "[i]n addition to physically beating [the petitioner], members of Al-Shabaab kept tabs on him by contacting his brother and warn[ing] they would kill [the petitioner] and his brother if they continued to disobey Al-Shabaab's command." Id. Finally, the country-conditions evidence confirmed that Al-Shabaab remained a major force in the country and a danger to many. Id. at 1084. We concluded that, "[t]ogether, this evidence compels the conclusion that [the petitioner] suffered persecution while in Somalia." Id.

We see no meaningful distinction between the extent of harm in Aden and the extent of harm suffered by Petitioner. Here, as in Aden , Petitioner experienced a single episode of bloody physical violence, with Petitioner's assault resulting in a visible scar. Here, as in Aden , the death threat was connected to the physical harm. And here, as in Aden , after receiving the death threat, Petitioner never returned to work and fled the country instead. If anything, Petitioner may have suffered greater harm than did the petitioner in Aden , because the knife wound in his abdomen required medical treatment, whereas the beating in Aden did not. And the soldiers followed up on their death threat to Petitioner, whereas Al-Shabaab did not.

To be sure, as the dissent notes, the effect of the death threat in Aden differs from the effect here. There, the "chain of events reveals that Al-Shabaab intended to coerce Aden to submit to its new political and religious order, and used offensive strategies—beatings, destruction of property, and death threats—to achieve this goal." Id. By contrast, here, the strategies "did not coerce Fon into abandoning his lawful beliefs[.]" Dissent at p. 825. But...

To continue reading

Request your trial
11 cases
  • Molina v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 13, 2022
  • Singh v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 14, 2022
  • Singh v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 14, 2022
    ...as we have applied that standard in evaluating claims of past persecution. Flores Molina , 37 F. 4th at 633 n.2 (citing Fon v. Garland , 34 F.4th 810, 813 n.1 (9th Cir. 2022) ).B. Asylum Asylum is available at the discretion of the Attorney General to an applicant who demonstrates that he i......
  • Antonio v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 26, 2023
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT