Derick Furwood Mbanwei v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 31, 2022
• Docket: 19-72615
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 31 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DERICK FURWOOD MBANWEI, No. 19-72615

Petitioner, Agency No. A215-905-773

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 8, 2022 Seattle, Washington

Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.

Derick Furwood Mbanwei, a native and citizen of Cameroon, appeals from

the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Because one member

of the BIA summarily affirmed the IJ’s decision under 8 C.F.R. § 1003.1(e)(4),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “the IJ’s decision becomes the BIA’s decision” for the purposes of our review.

Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004) (citation omitted). We have

jurisdiction under 8 U.S.C. § 1252, and we grant Mbanwei’s petition.

1. Substantial evidence supports the IJ’s finding that Mbanwei failed to

show past persecution. “An applicant qualifies as a refugee if he ‘is unable or

unwilling to return to his home country because of a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.’” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1062 (9th Cir. 2017) (citing Navas v. I.N.S., 217 F.3d 646, 654 (9th Cir.

2000)). “Persecution is an extreme concept and has been defined as the infliction

of suffering or harm in a way regarded as offensive.” Kaur v. Wilkinson, 986 F.3d

1216, 1222 (9th Cir. 2021) (cleaned up). Mbanwei fled Cameroon amidst civil

unrest after two specific incidents: 1) he was threatened by armed separatists who

broke into his home; and 2) he was detained by Cameroonian government forces

for two days and subjected to deplorable prison conditions based on the mistaken

belief that he was an Anglophone separatist. Threats without physical injury may

constitute past persecution, and we “generally look at all of the surrounding

circumstances” to determine whether the threats are sufficiently severe. Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Similarly, we have found

detention by government forces constitutes past persecution where the petitioner

2 was physically harmed or subjected to more extreme conditions. Compare

Bondarenko v. Holder, 733 F.3d 899, 908-10 (9th Cir. 2013), with Khup v.

Ashcroft, 376 F.3d 898, 903-04 (9th Cir. 2004). On this record, we cannot say the

evidence compels the finding that Mbanwei’s two incidents rise to the level of past

persecution. See Duran-Rodriguez, 918 F.3d at 1028-29.

2. However, the IJ’s finding that Mbanwei failed to show a well-founded

fear of future persecution on account of a protected ground is not supported by

substantial evidence. In the absence of past persecution, an asylum applicant can

demonstrate a “‘subjectively genuine and objectively reasonable’ fear of future

persecution.” Bringas-Rodriguez, 850 F.3d at 1062 (citing Navas, 217 F.3d at 654-

56, 656 n.11). Mbanwei testified that he fears persecution from two groups: the

Anglophone separatists, who will perceive him as a traitor or government

sympathizer because he will not join their armed fight, and Cameroonian

government forces, who will mistakenly believe he is a separatist because he is a

young Anglophone male from the village of Batibo. Because Mbanwei testified

credibly, the subjective component is established, and the only question is whether

his fear of persecution is objectively reasonable. See Parada v. Sessions, 902 F.3d

901, 909 (9th Cir. 2018).

In finding that Mbanwei’s fear of future persecution is not well-founded, the

IJ only addressed the threat of persecution by the government. The IJ did not

3 assess his fear of persecution by the separatists, which was a significant premise

for Mbanwei’s request for relief. The IJ’s failure to consider this argument and the

supporting evidence necessitates remand. See Vitug v. Holder, 723 F.3d 1056,

1064 (9th Cir. 2013).

Moreover, the IJ’s finding that Mbanwei did not show a well-founded fear of

persecution by the government on account of an imputed political opinion—

namely, his alleged association with Anglophone separatists—overlooked another

part of the record. The IJ found that the record “clearly indicated that those who

are targeted are the separatists,” and there was “nothing in the country conditions

evidence that would support a finding that someone in the respondent’s

circumstances would be targeted for persecution in Cameroon” because Mbanwei

is not a separatist. But Mbanwei testified that when he was arrested, the

government forces accused him of being a separatist after identifying that he was

from Batibo. See Khudaverdyan v. Holder, 778 F.3d 1101, 1106-07 (9th Cir.

2015) (reasoning that police statements accusing petitioner of working against the

government are evidence that the police imputed a political opinion to the

petitioner). On remand, the BIA should consider whether evidence in the record

corroborates that Cameroonian government forces detain, torture, or brutally harm

Anglophone civilians who they suspect are involved with separatists, but do not

confine abuses to those who are actually separatists. Mbanwei may also show that

4 his fear of persecution is reasonable based on persecution of those similarly

situated. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-84 (9th Cir. 2003) (showing

well-founded fear of persecution based on individualized threats in conjunction

with widespread persecution of the petitioner’s protected group); 8 C.F.R. §

1208.13(b)(2)(iii) (allowing asylum applicants to show persecution towards

similarly situated individuals). On remand, the BIA must assess whether Mbanwei

has an objective basis for fear of future persecution from both the separatists and

the government based on the full record. Regalado-Escobar v. Holder, 717 F.3d

724, 729 (9th Cir. 2013).

3. The IJ’s denial of CAT relief and withholding of removal relies on the

same factual findings. Therefore, we also remand these claims for reconsideration.

PETITION GRANTED AND REMANDED.