United States Court of Appeals For the First Circuit
No. 19-1447
SALIM T. AL AMIRI,
Petitioner,
v.
JEFFREY ROSEN, Acting U.S. Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.
J. Christopher Llinas, with whom Llinas Law, LLC was on brief, for petitioner. Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, and Nancy E. Friedman, Senior Litigation Counsel, were
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey Rosen has been substituted for former Attorney General William P. Barr. Of the United States Court of International Trade, sitting by designation. on brief, for respondent.
January 11, 2021 BARRON, Circuit Judge. Salim Al Amiri, an Iraqi citizen,
seeks relief from removal on the grounds of asylum, withholding of
removal, and protection under the United Nations Convention
Against Torture ("CAT"). He premises his requests for such relief
on the harm that he fears that he would be subjected to in Iraq at
the hands of members of Iraq's military or civilian insurgents
operating in that country. Al Amiri contends that he has reason
to fear he would be subjected to that harm on account of his work
as a paid contractor for the United States Army during the war in
Iraq, as in that role he educated U.S. soldiers about Iraqi customs
and practices as they prepared for their deployment. We vacate
and remand the ruling of the Board of Immigration Appeals ("BIA")
denying his claims for asylum and withholding of removal, but we
deny his petition insofar as it challenges the BIA's ruling
rejecting his CAT claim.
I.
Al Amiri was born in Iraq in 1983, but he then left that
country with his family in 1991. He spent several years in refugee
camps in Saudi Arabia before coming with his family to the United
States. In November of 1994, Al Amiri was granted lawful permanent
resident status in this country, where he has resided ever since.
He has two children, both of whom are American citizens.
During the war in Iraq, he was hired by the U.S.
government to train Army personnel. In that role, he taught
- 3 - soldiers about Iraq's cultural norms and how to interact
appropriately with the general population in that country,
including how to treat women and children and how to enter
another's home respectfully. He completed his duties successfully
and received a certificate of appreciation from the U.S. government
for his services.
Since moving to the United States, Al Amiri has traveled
to Iraq at least three times, in 2015, 2017, and 2018. On his
most recent trip there, which began in May 2018, Al Amiri and his
family spent six weeks visiting his grandmother, who was in poor
health.
Al Amiri's petition for review may be traced to events
that transpired upon his return to the United States from that
last trip to Iraq. After flying home from Iraq and arriving at
Logan International Airport in Boston, Massachusetts in July 2018,
he applied for admission to enter the United States. At that time,
U.S. Customs and Border Protection officers identified a 2015
conviction that Al Amiri had received for larceny under Michigan
law for having stolen a phone. They concluded that, in
consequence, he was subject to removal.1
1In evaluating Al Amiri's admissibility, officers noted that he had been placed in removal proceedings in 2011 for an earlier conviction. In those 2011 proceedings, he sought asylum, but his application was never adjudicated because he obtained cancellation of removal.
- 4 - Al Amiri was served with a notice to appear in removal
proceedings later that month. In October of that year, the
Immigration Judge ("IJ") determined that the U.S. Department of
Homeland Security had proved Al Amiri's removability by clear and
convincing evidence and ordered his removal. Al Amiri had sought
relief from removal by applying for asylum under § 208 of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158,
withholding of removal under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3), and withholding of removal under the CAT, as
implemented by 8 C.F.R. § 1208.16-.18. But, the IJ rejected each
of these requests.
Al Amiri appealed the IJ's ruling to the BIA, which
affirmed. He now petitions for review of the BIA's decision.
II.
We start with Al Amiri's challenge to the BIA's decision
affirming the IJ's denial of his asylum claim. An applicant for
asylum must satisfy various statutory requirements to secure that
relief. See 8 U.S.C. § 1158(b). Among them is what is known as
the "nexus" requirement, pursuant to which the applicant must show
"that he is unwilling or unable to return to his 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.'" Singh v. Mukasey, 543 F.3d
1, 4 (1st Cir. 2008) (quoting 8 U.S.C. § 1101(a)(42)(A)).
- 5 - If an applicant can show that he suffered past
persecution, he is entitled to a presumption that his fear of
suffering it in the future is well founded. Carcamo-Recinos v.
Ashcroft, 389 F.3d 253, 257 (1st Cir. 2004). Otherwise, he must
"prove that his fear is both genuine and objectively reasonable."
Id. To show that his fear is objectively reasonable, however, the
asylum applicant need not demonstrate that it is more likely than
not that he will be persecuted. INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987) ("One can certainly have a well-founded fear of an
event happening when there is less than a 50% chance of the
occurrence taking place.").
We consider questions of law de novo. Ye v. Lynch, 845
F.3d 38, 42 (1st Cir. 2017). We consider factual findings "under
the deferential 'substantial evidence' standard, reversing only if
a 'reasonable adjudicator would be compelled to conclude to the
contrary.'" Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir.
2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). In applying that
standard, we look not to isolated pieces of evidence but to the
"record considered as a whole." Sanabria Morales v. Barr, 967
F.3d 15, 19 (1st Cir. 2020) (quoting Thapaliya v. Holder, 750 F.3d
56, 59 (1st Cir. 2014)).
Al Amiri contends that the BIA erred in affirming the
IJ's determination that he could not meet the nexus requirement on
the ground that he had failed to show that the harm he fears he
- 6 - would endure in Iraq would be inflicted on account of his
membership in a particular social group. Al Amiri also contends
that the BIA erred in affirming the IJ's ruling denying his asylum
claim for a separate reason. Here, he contends that the record
fails to support the BIA's affirmance of the IJ's finding that he
did not sufficiently show that he had an objectively reasonable
basis for fearing that he would face harm in Iraq. We address
each of these contentions in turn.
A.
The BIA agreed with the IJ's rejection of Al Amiri's
contention that "Americanized or westernized individuals" in Iraq
constitute a "particular social group." For that reason, the BIA
agreed with the IJ that Al Amiri could not satisfy the nexus
requirement by showing that he feared that he would be harmed in
Iraq based on his membership in that group. The BIA reasoned that
this "proposed social group was vague" and "did not have sufficient
particularity or social distinction," citing to one of this Court's
opinions holding that secularized, westernized Pakistanis do not
constitute a particular group. See Ahmed v. Holder, 611 F.3d 90,
95 (1st Cir. 2010).
The BIA's determination that the IJ correctly ruled that
"Americanized or westernized individuals" in Iraq are not
"sufficiently particularized to constitute a cognizable particular
social group," however, does not in and of itself suffice to
- 7 - support the conclusion that Al Amiri cannot satisfy the nexus
requirement. For, as we will explain, Al Amiri also tied his nexus
showing to his asserted membership in a distinct "particular social
group."
Before the IJ and the BIA, Al Amiri put forth evidence
to show that while he was residing in the United States he had
served as a paid contractor for the U.S. Army during the Iraq War
and, in that capacity, had helped to train its soldiers about Iraqi
culture and customs in preparation for their deployment to Iraq.
He also put forth evidence to show that Iraqis who provided
assistance to the U.S. military in connection with that war
themselves constituted a particular social group and that members
of this group, because they had provided such assistance, were at
risk of harm from not only members of the Iraqi military but also
civilian members of various insurgent groups or militias operating
in Iraq. Based on this evidence, Al Amiri then contended -- as a
distinct ground for his asylum claim -- that the harm to which he
feared he would be subjected if he were removed to Iraq would be
inflicted on him on account of his membership in this group.
Notwithstanding that Al Amiri advanced this contention
below, the BIA did not purport to rule in rejecting his asylum
claim on nexus grounds that Iraqis who had assisted the U.S.
military during the Iraq War did not constitute such a qualifying
group. Thus, the BIA's ruling provides no basis for concluding
- 8 - that Al Amiri's asylum claim comes up short on the ground that he
failed to identify a particular social group to which the harm
that he fears that he would be subjected to in Iraq could be tied.
See Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) (explaining
that the focus of this Court's review is the "grounds invoked by
the agency" and that "[t]he agency's decision cannot be supported
on reasoning that the agency has not yet adopted" (first quoting
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); and then quoting
P.R. Sun Oil Co. v. EPA, 8 F.3d 73, 79 (1st Cir. 1993))).
B.
That said, as we have noted, an asylum applicant must
show that he has a reasonable basis for fearing that he would
suffer harm on account of his membership in a particular social
group. Thus, the applicant must show not only that he subjectively
fears being harmed on that basis, but also that it is objectively
reasonable for him to fear such harm. For that reason, even if we
assume that Al Amiri's prior work for the U.S. military made him
a member of a "particular social group," he still must show that
his fear of being harmed in Iraq on account of being in that group
is objectively reasonable.
To make that showing, Al Amiri submitted evidence
recounting instances of the harm that has been done in Iraq to
Iraqis for their past service to the U.S. military during the war.
He contends that this evidence supports a finding that the nature
- 9 - of the threat posed to such persons is widespread and diffuse, as
it emanates from hostility to such persons that is harbored by a
broad range of actors who are not controllable by the Iraqi
government.
Al Amiri's fear of being harmed on this basis, however,
is necessarily a function, at least in part, of whether those in
Iraq from whom he fears harm for his past work for our country's
armed forces would learn of it. It is with respect to Al Amiri's
showing on this score that the BIA held that he did not adequately
establish that he had a reasonable basis for his fear.
The BIA determined in that regard that the IJ made no
clear error in finding that Al Amiri "would not be singled out or
targeted as a person who assisted the U.S. Military" because "only
one neighbor in Iraq knew" about the assistance that he had
provided and "that neighbor supported and assisted him by telling
him to keep quiet about it and not to tell anyone." But, here,
too, we conclude that the BIA's decision affirming the IJ's ruling
cannot be sustained.
Al Amiri does not premise his fear of harm -- as some
unsuccessful asylum seekers have in other cases -- on the potential
discovery by others of beliefs or opinions that were held but never
openly expressed. See, e.g., Zhakira v. Barr, 977 F.3d 60, 67
(1st Cir. 2020) (affirming BIA's denial of asylum seeker's
political-opinion claim where applicant had "taken 'no actual
- 10 - political action'" and "identifie[d] no evidence indicating that
Al-Shabab would be aware of his political views" (emphases added));
Archila v. Holder, 495 F. App'x 98, 101 (1st Cir. 2012) (finding
an insufficient nexus between feared persecution and political
opinion opposing guerrilla groups because applicant "offered no
evidence that his resistance was understood by the guerrillas to
be political in nature" (first emphasis added)). Rather, he
premises his fear on the discovery of conduct in which he openly
engaged and that is well documented in official records -- namely,
his paid work for the U.S. government assisting our military during
the Iraq War.
In consequence, as the record clearly demonstrates,
numerous individuals with ties to Iraq know of the assistance that
Al Amiri provided to the U.S. Army during the Iraq War. They
include not only those in the U.S. military with whom he worked
who have returned to Iraq for periods of time, but also members of
his family who are in regular contact with people in the country.
Thus, although we do not dispute that one could
reasonably infer from Al Amiri's testimony that the neighbor in
Iraq whom he told about his past work would be as discreet as he
admonished Al Amiri to be with that information, we must determine
whether substantial evidence supports the BIA's finding that Al
Amiri lacked a reasonable basis for his fear by considering the
record "as a whole." Sanabria Morales, 967 F.3d at 19 (quoting
- 11 - Thapaliya, 750 F.3d at 59). We thus must widen the lens and look
beyond Al Amiri's testimony regarding the one person in Iraq in
whom he confided about his past service to this country. When we
do, we are compelled to hold that the record fails to support the
conclusion that Al Amiri could not reasonably fear that other
individuals in Iraq would learn of his prior work, given the broad
range of persons with ties to Iraq who already know of it.
Nor does the BIA's invocation of Y.C. v. Holder, 741
F.3d 324 (2d Cir. 2013), support our reaching a different
conclusion. There, the Second Circuit denied claims for relief
from removal brought by two Chinese noncitizens, Y.C. and X.W, on
the ground that they had failed to make sufficient showings that
their activism in the United States in support of pro-democracy
efforts in their home country could become known to Chinese
authorities, such that they could reasonably fear being persecuted
by the Chinese government for their prior activism. Id. at 333-
37. But, the differences between that case and this one are
substantial.
Y.C., we note, predicated her fear that her activism
would be discovered by the Chinese government on two things: a
single article she had written more than eight years earlier in a
publication in the United States and her past participation in
candlelight vigils in front of the Chinese Embassy in New York.
Id. at 329, 333-34. However, no evidence indicated that the
- 12 - publication in which the single article appeared circulated in
China, and only an "unsworn" affidavit from her husband supported
her contentions that she had participated in such vigils and that
Chinese authorities knew that she had. Id. at 334. Thus, the
fact that the Second Circuit deemed Y.C.'s basis for fearing harm
too "speculative" does not lead us to conclude that the BIA was
permitted to reach a similar judgment here, given the record in
this case.
Moreover, while X.W. predicated his fear on activism
that was better documented than Y.C.'s, he sought withholding of
removal, not asylum. Id. at 336-37. He thus was obliged to make
a more stringent showing about the probability of his past conduct
being discovered by his putative persecutors than Al Amiri is. Al
Amiri needs to show only that a potential persecutor "could become
aware" of the trait that could give rise to persecution. Matter of
Mogharrabi, 19 I. & N. Dec. 439, 446 (B.I.A. 1987). The Second
Circuit rejected X.W.'s claim because it determined that such
discovery was not "likely." See Y.C., 741 F.3d at 337; see also
id. at 335 (discussing the "higher burden of proof" that applies
to withholding of removal claims relative to asylum claims). Thus,
in addition to the fact that the Second Circuit was assessing the
chances that a petitioner's prior actions would be discovered by
a government official -- rather than, as in this case, a diffuse
set of official and unofficial actors -- it was applying a much
- 13 - more demanding standard of proof than applies to Al Amiri's asylum
claim.2
C.
There is one other ground on which the BIA relied in
affirming the IJ's denial of Al Amiri's asylum claim. This ground,
too, concerned his failure to show that his fear of harm was
objectively reasonable.
Here, the BIA focused on Al Amiri's "repeated,
voluntary, and somewhat lengthy returns to Iraq," which it found,
as had the IJ, "severely undercut any objective fear of harm."
The BIA emphasized in this regard that the trips occurred after Al
Amiri's earlier asylum application, which he had filed in 2011 and
in which he also had claimed a fear of returning to Iraq.
But, Al Amiri's most recent trip to Iraq lasted six weeks
and was undertaken to visit his ailing grandmother. The record
does not show that his earlier trips were any longer, and it shows
that at least one was for the similar purpose of paying respects
to an ill or deceased family member. The fact that he was able to
conceal his employment history during time-limited trips to Iraq
2 The BIA did not find that, even if the fact of Al Amiri's prior work for the U.S. military did become known in Iraq by persons other than his neighbor, he still would have no reasonable basis for fearing harm. Given that the record reveals that the threat faced by those in Iraq who have provided such service is diffuse in nature, we are dubious the record would support such a finding in any event.
- 14 - does not mean that he will be able to do so for months and years
on end. Especially given that neither the IJ nor the BIA disputed
Al Amiri's assertion that he subjectively understood the risk of
disclosure to be appreciably greater if he were to be required to
take up residence in Iraq than it was during controlled visits
with family, we do not see what basis there is for concluding that
it was objectively unreasonable for him to fear that he could not
protect himself from the harm that disclosure could cause him if
he were removed to that country. Cf. Mukamusoni v. Ashcroft, 390
F.3d 110, 125 (1st Cir. 2004); see also Tarraf v. Gonzales, 495
F.3d 525, 534 (7th Cir. 2007) (noting that "[t]here well may be
circumstances when a person who legitimately fears persecution
nevertheless might elect to return temporarily to his home country"
because, for example, "health conditions of family members and
other major life events might drive a person to choose to take
certain risks").
D.
For all these reasons, we conclude that the BIA's basis
for upholding the IJ's decision to deny Al Amiri's asylum claim
cannot be sustained, and so we vacate it. Moreover, because we so
hold, we also must vacate the BIA's decision to affirm the IJ's
denial of Al Amiri's claim for withholding of removal, as the BIA
premised that ruling on its affirmance of the IJ's denial of his
asylum claim.
- 15 - III.
We have left to address, then, only the BIA's denial of
Al Amiri's claim for relief under the CAT. As we have already
explained, to show a well-founded fear of persecution sufficient
to ground an asylum claim, a petitioner need not show even by
preponderance of the evidence that the persecution will occur.
Cardoza-Fonseca, 480 U.S. at 431. By contrast, however, "[a]
petitioner seeking CAT protection must show 'it is more likely
than not' that he would be subject to torture 'by or with the
acquiescence of a government official.'" Aldana-Ramos v. Holder,
757 F.3d 9, 19 (1st Cir. 2014) (quoting Nako v. Holder, 611 F.3d
45, 50 (1st Cir. 2010)).
The BIA held here that the IJ did not clearly err in its
finding as to the inadequacy of Al Amiri's showing "with regard to
the probability of torture." Therefore, the BIA concluded there
was "no reason to disturb" the holding that Al Amiri "did not
demonstrate that it is more likely than not that he would suffer
abuse amounting to torture . . . by or with the consent or
acquiescence of public officials."
Al Amiri responds by pointing to evidence in the record
supporting his assertion that he could suffer abuse amounting to
torture either because of his Americanized mannerisms or due to
his work for the U.S. military. But, the proffered evidence is
not of a sort that could support the conclusion that "any
- 16 - reasonable adjudicator would be compelled to conclude" that Al
Amiri has shown that it is more likely than not that he will suffer
such harm. See 8 U.S.C. § 1252(b)(4)(B). Accordingly, we cannot
reverse the BIA's determination that the IJ's holding on this front
was not clear error, and so we uphold the BIA's ruling affirming
the IJ's denial of Al Amiri's CAT claim.
IV.
Al Amiri's petition for review is granted in part, as we
vacate the BIA's decision as to his claims for asylum and
withholding of removal and remand for further proceedings
consistent with this opinion. With respect to his challenge to
the BIA's affirmance of the IJ's denial of his CAT claim, however,
his petition for review is denied.
- 17 -