Girma v. I.N.S.

• Decision Date: 20 February 2002
• Docket Number: No. 00-60295.,00-60295.
• Citation: 283 F.3d 664
• Parties: Sossina GIRMA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

283 F.3d 664

Sossina GIRMA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 00-60295.

United States Court of Appeals, Fifth Circuit.

February 20, 2002.

Elaine V. Morley, Alisha Lynn Clester, Morley & Vilt, Bellaire, TX, for Petitioner.

Stephen Joseph Flynn, U.S. Dept. of Justice, Immigration Litigation, Thomas Ward Hussey, Director, Margaret J. Perry, U.S. Dept. of Justice, Civ. Div., Immigration Litigation, John Ashcroft, Civ. Div., Appellate Staff, Washington, DC, Roger D. Piper, U.S. Immigration & Naturalization Service, Houston, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, WIENER, and PARKER, Circuit Judges.

PER CURIAM:

Sossina Girma, appeals a decision by the Board of Immigration Appeals (hereinafter "BIA") denying her application for asylum and withholding of deportation.¹ Finding a proper application of the mixed motive standard and substantial evidence to support the BIA's factual conclusions, we affirm.

BACKGROUND

Girma, a native Ethiopian citizen of Amharic ethnicity, entered the United States as a non-immigrant visitor in November 1991, with authorization to remain in the United States until November 11, 1992. After failing to depart as required, Girma filed an application for asylum and withholding of deportation in the fall of 1995. In December 1995, the INS issued an Order to Show Cause.

At her evidentiary hearing in the spring of 1996, Girma testified to the following: On June 30, 1991, Girma was abducted from her home/restaurant in Ethiopia by five masked men wearing army fatigue type clothing. Girma was then blindfolded, placed in a vehicle and driven to a warehouse full of wooden furniture where she was held for two hours and then questioned concerning her involvement with the All Amhara People's Organization (hereinafter "AAPO"). After she admitted her affiliation with the AAPO, the abductors demanded that Girma pay a ransom for her release. Insisting that she had no money, Girma refused to pay the ransom. Angered by Girma's refusal, the abductors assaulted and raped her. The abductors then drove Girma approximately 30 miles from the warehouse and set her free. Girma informed the local police of the incident; however, they did not believe her story and informed her that she would be "persecuted" if she continued "telling lies." Girma was then admitted to a hospital where she remained for approximately one month. Between the time of her release from the hospital in late July and her departure to the United States in November 1991, Girma suffered no further encounters with her abductors.

In support of her testimony and application for asylum, Girma submitted a letter on AAPO letterhead dated July 17, 1991, identifying her as an AAPO member. Although Girma was in Ethiopia on July 17, 1991, the letter strongly advised Girma not to return to Ethiopia and failed to mention that Girma had been raped or beaten on June 30, 1991. Girma also submitted various articles discussing the political conditions in Ethiopia, including an Amnesty International study from 1995 indicating that the AAPO was not formed until 1992.

Based upon the evidence presented, the Immigration Judge (hereinafter "IJ") denied Girma's application. In March 2000, the BIA conducted a complete review of the record under a mixed motive analysis and affirmed the IJ's ruling upon a finding that Girma did not present adequate evidence from which one would reasonably conclude that the harm she suffered was motivated, at least in part, on account of her membership in a particular social group, her actual or imputed political opinions, or any other protected ground. In reaching its decision, the BIA found that Girma failed to adequately establish who attacked her and that they were motivated on account of a protected ground rather than an unprotected one. Girma now challenges the BIA's decision.

STANDARD OF REVIEW

"We have authority to review only an order of the BIA, not the IJ, unless the IJ's decision has some impact on the BIA's decision." Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997) (citing Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994)). Here, the BIA did not adopt the decision of the IJ, but conducted a complete review of the record. Thus, our review is limited to the BIA's decision. The BIA's legal conclusions are reviewed de novo, while factual conclusions are reviewed for substantial evidence. See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996) (citations omitted). "Under the substantial evidence standard applicable to review of denials of asylum, we must defer to the BIA's factual findings unless the evidence is so compelling that no reasonable fact finder could fail to find otherwise." Mikhael, 115 F.3d at 304. "The BIA's determination that [Girma] was not eligible for asylum must be upheld if supported by reasonable, substantial and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (internal quotations and citation omitted).

DISCUSSION

On appeal, Girma argues that the BIA erred in denying her asylum application and that she is entitled to relief because of her past persecution and well-founded fear of future persecution on account of her political opinion and association with the AAPO. Specifically, Girma contends that the BIA incorrectly required her to prove that her persecutors were motivated by a protected ground to the exclusion of other motivations, and therefore, failed to properly apply the mixed motive standard. Furthermore, Girma maintains that she satisfied the evidentiary burden set forth in Elias-Zacarias, by providing some evidence that the persecution she suffered was motivated, at least in part, by a protected ground.

The Attorney General may grant asylum to an alien who is a refugee. 8 U.S.C.A. § 1158(b)(1) (West 1999). The term alien is defined as "any person not a citizen or national of the United States." 8 U.S.C.A. § 1101(a)(3) (West 1999). An alien is a refugee when he or she "is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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.A. § 1101(b)(42) (West 1999).

"The level of proof required to satisfy the requirements for withholding of deportation is more stringent than for asylum purposes." Mikhael, 115 F.3d at 306 (citations omitted). To avoid deportation, "an alien must establish a clear probability of persecution." INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984). Thus, where an alien fails to satisfy the requirements for asylum, he or she will also have failed to satisfy the requirements for withholding of deportation.

A. Mixed Motive Analysis

Oftentimes, persecutors will convey to their victims the motivation behind the persecution. Other times they may not. Persecution may also result from a mixture of motivations. Although our research reveals no Fifth Circuit case, and neither Girma nor the government have brought one to our attention, which involves a mixed motive analysis in the context of asylum law,² the BIA and at least two other circuit courts have applied a mixed motive analysis. In re S-P-, 21 I. & N. Dec. 486 (BIA 1996); Borja v. INS, 175 F.3d 732 (9th Cir.1999)(en banc); Osorio v. INS, 18 F.3d 1017 (2nd Cir.1994).

Under a mixed motive analysis, an applicant need not show past persecution or fear of future persecution "solely on account of" a protected ground. Borja, 175 F.3d at 735 (quoting Osorio, 18 F.3d at 1028). Stated another way, "the presence of possible mixed motives need not [necessarily] defeat an asylum claim." Kozulin v. INS, 218 F.3d 1112, 1117 (9th Cir.2000) (internal quotations and citations omitted) (discussing the holding in Borja, 175 F.3d 732). An applicant must only show that one of the persecutor's motives falls within a statutorily protected ground. Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir.1995). Furthermore, an applicant is not required to provide direct proof of her persecutor's motives but rather some evidence of it, direct or circumstantial. Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. at 816-17. The evidence presented, however, must compel a reasonable fact-finder to conclude that the harm suffered by an applicant was motivated, at least in part by, a protected ground. Borja, 175 F.3d at 736.

In the instant case, the BIA concluded that Girma "did not establish by sufficient evidence that those who harmed her were motivated at least in part by a protected ground." Particularly important in this conclusion, was the BIA's determination that Girma failed to adequately establish who attacked her. The BIA reached this conclusion because Girma admitted in her evidentiary hearing that her persecutors "could have been government officials or common criminals." The BIA also found that Girma did not sufficiently establish that her persecutors were motivated by her membership in the AAPO or political opinion, rather than her financial status as a business woman. The BIA reached this conclusion upon a finding that the record indicated that Girma's persecutors were interested in her money and only began to harm her when she indicated that she could not pay the ransom sum they demanded from her. Furthermore, the BIA noted that Girma "acknowledged that she fears future harm from the government because the government believes that the respondent has money."

Girma contends that in reaching its decision, the BIA erred in its mixed motive analysis by requiring her to demonstrate, to the exclusion of all other motivating factors, that her persecutors were motivated by a protected ground. Girma bases her argument concerning...