Passi v. Mukasey

• Decision Date: 23 July 2008
• Docket Number: Docket No. 07-2102-ag.
• Citation: 535 F.3d 98
• Parties: Sylvestre PASSI, Petitioner, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

535 F.3d 98

Sylvestre PASSI, Petitioner, v. Michael B. MUKASEY, Attorney General,^* Respondent.

Docket No. 07-2102-ag.

United States Court of Appeals, Second Circuit.

Argued: April 23, 2008.

Decided: July 23, 2008.

Matthew J. Harris (Eric A. Wuestman, of counsel) Brooklyn, NY, for Petitioner.

Lindsay B. Glauner, Trial Attorney, Office of Immigration Litigation (Leslie McKay, Peter D. Keisler, of counsel) U.S. Department of Justice, Washington, DC, for Respondent.

Before: JACOBS, Chief Judge, KEARSE, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

Sylvestre Passi petitions for review of the Board of Immigration Appeals' (BIA) April 19, 2007 order affirming Immigration Judge (IJ) Elizabeth A. Lamb's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The BIA assumed that Passi had testified credibly about an incident in which he was beaten into unconsciousness during a military raid, but concluded that country conditions had changed such that he no longer had an objectively reasonable fear of persecution. Because we find that the BIA could not have conducted an individualized analysis of how changed country conditions would affect someone in Passi's situation, we grant the petition, vacate the BIA's order, and remand for further proceedings.

I

Sylvestre Passi is a native and citizen of the Republic of Congo. He claims to have entered the United States on July 23, 2001. In May 2002, he filed an application for asylum, withholding of removal, and CAT relief, and was subsequently placed in removal proceedings.

At a merits hearing in July 2005, Passi testified that in November 1997, members of the "Cobra" militia loyal to Congo's current president Denis Sassou-Nguesso entered his home in Brazzaville, shot and killed his father, and beat him into unconsciousness. He claims that he and his family were attacked because of their Lari ethnicity and their perceived support for Sassou-Nguesso's predecessor and rival, Pascal Lissouba; Passi's father had been a police officer under Lissouba's regime. After the attack, Passi and his family fled to Gabon and from there, Passi eventually came to the United States. The IJ admitted several documents into evidence including the 1997, 2003, and 2004 United States Department of State Country Reports on Human Rights Practices for the Republic of Congo, a 1999 Amnesty International report on Congo, and several news articles from 2002 and 2003.

In an oral decision, the IJ pretermitted Passi's asylum application finding that he had not met his burden of proving that he applied for asylum within one year of his arrival in the United States as required by 8 U.S.C. § 1158(a)(2)(B). In re Sylvestre Passi, No. A 95 468 091 (Immig. Ct. N.Y City Aug. 29, 2005). The IJ found that Passi was not a "totally credible witness." She then went on to consider whether Passi was eligible for withholding of removal, noting that he faced the higher burden of proof of showing that it was more likely than not that he would be persecuted. The IJ rejected Passi's withholding of removal claim stating:

I've read the background materials submitted including the State Department materials. The State Department talked about the tribe to which he says he belongs and I believe he says it's in the southern part but there is nothing in the record that says that his tribe is signaled [sic] out for any problems now, especially now. The times have changed, the political situation has changed and I have no reason to believe that he would be persecuted were he to return to his country.

Id. The IJ also rejected his CAT claim.

Passi appealed only the denial of his asylum claim to the BIA. The BIA affirmed the IJ's denial of asylum, but on different grounds. In re Sylvestre Passi, No. A 95 468 091 (B.I.A. Apr. 19, 2007). The BIA assumed that his asylum application was timely filed and that he had testified credibly about his past persecution, but explained in a short per curiam decision:

[W]e concur with the Immigration Judge's ultimate decision that conditions in the Republic of Congo have changed to the extent that there is no evidence in the record that [Passi] would face persecution there. In that regard, we find no indication in the most recent objective evidence of record that [Passi,] who was beaten into unconsciousness during a 1997 raid by Cobra militia, presently has an objectively reasonable fear of persecution in the Republic of Congo based on any past persecution. Further, we find no evidence that [Passi] has an independent well-founded fear of future persecution by Cobra militiamen on account of his Lari ethnicity, his imputed political support of former President Pascal Lissouba, or any other protected ground under [8 U.S.C. § 1158], if he is removed to the Republic of Congo.

Id. (citations omitted).

Passi timely petitioned this Court for review, again only challenging the denial of his asylum claim.¹

II

When the BIA affirms an IJ's decision on different grounds, we review only the BIA's decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). As we have explained on several occasions, however, when the BIA affirms the IJ's decision in some respects, but not others, we may also review the IJ's decision, although our review is confined to those reasons for denying relief that were adopted by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir.2005). See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). In this case, the BIA assumed that Passi's asylum application was timely filed and that he had testified credibly, so we may not rest on the IJ's adverse credibility finding or her ruling pretermitting Passi's asylum claim. See Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ's reason for denying Passi's withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA's decision, we find it informative in this case to look to the IJ's decision as well to decipher the reasoning in which the BIA "concur[red]" just as we would if the BIA had merely modified or supplemented the IJ's decision.

We review the agency's factual findings under the substantial evidence standard treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency's reasoning or its factfinding process was sufficiently flawed, for example, where the agency's determination was "based on an inaccurate perception of the record, omitting potentially significant facts." Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir.2005). We review de novo questions of law and the application of law to fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

The burden of proving eligibility for asylum rests on the applicant. 8 C.F.R. § 208.13(a). An applicant may qualify for asylum either because he has suffered past persecution or because he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). A fear of persecution may be "well-founded even if there is only a slight, though discernible, chance of persecution." Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). This standard is considerably easier to meet than the standard for withholding of removal, which requires the applicant to establish that it is more likely than not that his "life or freedom would be threatened" on account of a protected ground. See 8 C.F.R. § 208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Where, as the BIA assumed here, an asylum applicant has demonstrated that he suffered past persecution, a presumption arises that he has a well-founded fear of persecution. 8 C.F.R. § 208.13(b)(1). While past persecution is sufficient to establish eligibility for asylum, regulations nonetheless direct the IJs to exercise their discretion to deny asylum in certain situations. 8 C.F.R. § 208.13(b)(1)(i); Tambadou, 446 F.3d at 301-02. One such situation is when the government proves by a preponderance of the evidence that "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality," 8 C.F.R. § 208.13(b)(1)(i)(A), thus rebutting the presumption that arose upon the initial showing of past persecution. See Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir.2007).

III

This petition calls on us to decide whether substantial evidence supports the BIA's finding that conditions in Congo have fundamentally changed such that Passi no longer has a reasonable fear of persecution. To support its two-sentence conclusion that "conditions in the Republic of Congo have changed to the extent that there is no evidence in the record that [Passi] would face persecution there," the BIA cited only the 2004 State Department country report. While the State Department country reports often provide "a useful and informative overview of conditions in the applicant's home country," we have instructed the immigration courts "not to place excessive reliance" on them. Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir.2004). In Tambadou v. Gonzales, we explained that the BIA cannot rely in a conclusory fashion on information in a State Department country report about "general changes in the country." 446 F.3d at 303 (internal quotation marks omitted). Instead, we explained, the BIA must "use the information in the [r]eport in a case-specific manner and supplement it with further analysis," that is, the BIA must "conduct an individualized analysis of how changed conditions...