In re J-B-N-
| Decision Date | 25 June 2007 |
| Docket Number | Interim Decision No. 3569. |
| Citation | 24 I&N Dec. 208 |
| Parties | In re J-B-N- & S-M-, Respondents. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 4, 2007, an Immigration Judge denied the respondents' applications for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The respondents have appealed from that decision. The appeal will be dismissed.
The respondents are a married couple who are natives of Burundi and citizens of Rwanda. The record reflects that they sought entry to the United States on September 11, 2006, but were placed in removal proceedings because they did not have valid visas. On the basis of their own admissions, the Immigration Judge found that they were removable. She further denied their applications for asylum and withholding of removal based on a finding that the respondents' claimed fear of persecution did not have a nexus to one of the five protected grounds specified in section 208(b) of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2000). Specifically, the Immigration Judge found that the respondents' claim did not meet the new standard provided in section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 ("REAL ID Act"), which requires an asylum applicant to prove that a protected ground is "at least one central reason" for the fear of persecution.1 On appeal, the respondents argue that they produced adequate evidence to show that the persecutors were motivated to harm them because of their "imputed Burundian nationality and membership in the particular social group of old case-load refugees."2
Despite some inconsistencies between the lead respondent's3 story and documentary evidence detailing a "land dispute," the Immigration Judge noted that his testimony was consistent with his asylum application. The Immigration Judge did not enter an explicit credibility determination on the respondents' claim as a whole. As a result, we will treat both respondents' testimony as true for purposes of this appeal.4
According to the respondents' testimony, they lived in Burundi until 1996, when they went to live in Rwanda around the time of their marriage. Both are Tutsi by ethnicity. The respondent testified that shortly after his arrival in Rwanda, he became close to an uncle who deeded a parcel of land to him so that he could build a home. The respondents apparently could not afford to build the home until 2004.
After the respondent's uncle died in 2002 and the respondents started to build on the property, the aunt took over the land to prevent the respondents from developing the property. The respondent's aunt told him that this was because he was not a member of the extended "Sengabo" family. The respondent filed a complaint to "repossess" the land. After some legal proceedings, the district ruled that the respondents had a right to the property in January 2005.
In March 2005, the respondent began to receive anonymous telephone calls telling him to return to Burundi. These calls lasted until June 2006. The respondent indicated that he recognized the voice of his cousin, who was a major in the national police. He testified that his cousin also came to his home three times, once in April 2006 and twice in May or June of that year. The respondent decided to leave Rwanda in June 2006 and secured visas for himself and his wife through the American Embassy, where he worked as a driver. Upon arrival in the United States, the respondents were told that their visas had been canceled. The respondent believes that his aunt and her family members were responsible for this. He stated that he thought that his relatives were hostile to him because he "came from abroad [and] they did not know [him]." The respondent indicated that he believed that the aunt and cousin feared he would On cross-examination, the respondent admitted that he and his aunt had an uneventful relationship prior to the land dispute. He described this relationship as a "friendship" prior to the dispute.
The female respondent's testimony was in substantial agreement with this version of the events. She testified that she was present in April 2006 when the respondent's cousin came to her home with three others in police uniforms. The cousin told her to tell the respondent that it would be better for him to return to Burundi. Next, in early May 2006, the cousin came again with men in police uniforms, searched the home, and found passports with the visas in them. Toward the end of the month he came a third time and threatened her if the couple did not leave. On cross-examination, the female respondent agreed with her husband that prior to 2004, when they began to build on the land, there were no problems with his aunt or cousins. In fact, the female respondent stated that aside from the land issue, there
The respondents presented the testimony of a witness who is a professor of political science and Africana studies and a researcher on the country of Rwanda. The witness stated that Rwandans like the respondents, who were returning from Burundi, would have very low social status. He testified that the land in dispute between the respondent and his aunt was very valuable, "like owning property in downtown Manhattan." The witness characterized land disputes in Rwanda as common and indicated his opinion that the aunt was trying to make a profit by selling the land. The witness further stated that even though the respondent had received a judicial decree that confirmed his ownership rights, he was essentially out of luck when it came to enforcing his decree, because he had little power in Rwanda relative to that of his aunt and her family. According to the witness, the cousin's position as a police officer was "very significant" because it allowed him to oppose the respondents' attempt to keep the land. The witness concluded that the respondents' risk of harm in Rwanda stems from a "family squabble" and the fact that being from Burundi, they "don't have connections to power that they could turn to for protection."
Prior to its amendment by the REAL ID Act, the Immigration and Nationality Act provided that an applicant could demonstrate eligibility for asylum by showing that he or she was a "refugee," as that term is defined in section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2000). Pursuant to that definition, an alien is required to demonstrate that he is unwilling or unable to return to his 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. Id.; Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
Although an alien must fully demonstrate that he meets the requirements of the refugee definition, we have stated that "an applicant does not bear the unreasonable burden of establishing the exact motivation of a `persecutor' where different reasons for actions are possible." Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988). Recognizing that "[p]ersecutors may have differing motives for engaging in acts of persecution," we have indicated that an applicant for asylum need not show "conclusively" that the persecution was, in fact, motivated on account of one of the five grounds protected under the Act. Matter of S-P-, 21 I&N Dec. 486, 489 (BIA1996).5 Rather, we have stated that an applicant must produce evidence, either direct or circumstantial, from which it is reasonable to believe that the harm was or would be motivated in part by an actual or imputed protected ground. Id. at 494.
In enacting the REAL ID Act, Congress sought to clarify the above standard and to provide a "uniform standard for assessing motivation." See H.R. Rep. No. 109-72, at 163 (2005) (Conf. Rep.). The statute now states that an asylum applicant must "establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." REAL ID Act § 101(a)(3), 119 Stat. at 303 () (emphasis added). This case requires us to assess the new statutory standard and to determine what evidence satisfies an alien's burden of showing that at least one central reason for his or her mistreatment "is on account of race, religion, nationality, membership in a particular social group, or political opinion." See H.R. Rep. No. 109-72, at 165.
Our interpretation of the law is governed by settled principles of statutory construction. First, we must look to the actual language used in the statute. It is well settled that the "`starting point must be the language employed by Congress'" and that we must assume "`that the legislative purpose is expressed by the ordinary meaning of the words used.'" INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456...
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Sealed Petitioner v. Sealed Respondent
...only altered how central the motive must be and not how the court determines what the persecutor's motive was. In re J – B – N – & S – M – , 24 I&N Dec. 208, 212–14 (BIA 2007) (citing S – P – with approval and noting that when Congress enacted the Act, it cited a Fifth Circuit mixed motive ......