Rios v. Mukasey

268 F. App'x 51
Court of Appeals for the Second Circuit·Decided March 4, 2008·No. No. 04-3650-ag·Published

Opinion

SUMMARY ORDER

Johanna Milena Granados Rios, a native and citizen of Colombia, seeks review of a June 14, 2004 order of the BIA affirming the April 30, 2003 decision of Immigration Judge (“IJ”) Matthew D’Angelo, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Johanna Milena Granados Rios, No. A95 846 003 (B.I.A. Jun. 14, 2004), aff'g No. A95 846 003 (Immig. Ct. Hartford, CT Apr. 30, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews 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); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc). However, the Court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). The Court reviews de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

The agency’s burden findings are not supported by substantial evidence. With regard to Granados’ imputed political opinion claim, the IJ determined that “[tjhere has been no testimony and no documentary evidence that anyone ever [53]*53threatened the respondent because of her politics, her family’s politics or her family’s imputed politics or her imputed politics.” However, Granados claimed that her family believed that by paying money to the FARC, they would be cooperating with terrorists, and that they did not want to cooperate with people who did not respect human life. Further, Granados described the FARC’s seizure and destruction of her family’s boat as a reprisal for non-cooperation, and later described her father’s “den[ial] to cooperate with the revolution” as the reason for the persecution of her family.

We recently had occasion to consider a claim of imputed political opinion, wherein the petitioner had been kidnapped by the FARC because of her knowledge of computers, a reason unrelated to her political opinion, in Delgado v. Mukasey, 508 F.3d 702, 707 (2d Cir.2007). In Delgado, we found that although the petitioner was originally kidnaped because of a non-political reason, “it did not necessarily follow that ... her refusal to provide further technological assistance did not support a well-founded fear of futui'e persecution on account of an imputed political opinion.” Id. Likewise, while Granados’ family may have initially been targeted because of their status as wealthy property and business owners, the agency failed to consider whether the confluence of their socio-eco-nomic class, their political affiliation, and their refusal to “cooperate” with the FARC, could have led the FARC to impute an anti-FARC political opinion to them. Id.

Second, we note the IJ’s finding that, even if Granados were able to show a nexus, the threats, although “very serious,” did not constitute past persecution. It is well established that past persecution may be sufficient, on its own, to establish eligibility for asylum. See Matter of Chen, 20 I. & N. Dee. 16, 18, 22 (BIA 1989). While we have generally rejected claims of past persecution based on unfulfilled threats alone, see Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002), we have also found that “non-physical forms of harm” may rise to the level of persecution. Ivanishvili v. U.S. Dept. of Justice, 433 F.3d 332, 341 (2d Cir.2006). Moreover, a number of our sister Circuits have explicitly recognized that psychological harm may, in some circumstances, support a finding of past persecution. See Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir.2006) (noting that “[ujnder the right set of circumstances, a finding of past persecution might rest on a showing of psychological harm” (quotation marks omitted)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir.2004) (“Persecution may be emotional or psychological, as well as physical.”); Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.2004) (holding that the applicant was entitled to asylum “based on her fear that her daughter will be forced to undergo female genital mutilation” because her “fear of ... being forced to witness the pain and suffering of her daughter is well-founded”). Further, the Ninth Circuit has held that “unfulfilled threats” can rise to the level of persecution if they are “so menacing as to cause significant actual suffering or harm.” See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000).

While we have never considered whether death threats that cause severe psychological harm rise to the level of persecution, the agency should have done so within the context of the required cumulative past persecution analysis of Grana-dos’ claim. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005). We have held that the difference between harassment and persecution is one of degree, which must be assessed with regard to the context in which the mistreatment [54]*54occurs. Beskovic v. Gonzales, 467 F.3d 223 (2d Cir.2006).

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