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Context of Persecution May Show Protected Grounds

Vumi v. Gonzales, ---F.3d---, 2007 WL 2458413 (C.A. 2, Aug. 31, 2007)

Luluengisa Chantal Vumi (“Vumi”), a native of the Democratic Republic of Congo (“DRC”), applied for asylum and withholding of removal, as well as relief under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) granted Vumi’s CAT claim, but denied her application for asylum and withholding of removal. The IJ also rejected Vumi’s motions for reconsideration of these claims, and upon review, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. Vumi then filed a petition for review to the Court of Appeals.

In her application, Vumi alleged that she had been mistreated by members of the DRC military, who considered her ex-husband a suspect in the 2001 assassination of the DRC president. More specifically, Vumi testified that she had been detained, beaten, raped, and interrogated ceaselessly regarding her ex-husband’s whereabouts, all at the hands of the DRC military. As a result of her testimony, the IJ found that Vumi had unquestionably suffered persecution, and was likely to suffer such mistreatment in the future, thus entitling her to relief pursuant to her CAT claim.

However, the IJ determined that Vumi failed to show that her persecution was due to a protected ground, i.e. membership in a particular social group, or political opinion. It was on this basis that the IJ, and subsequently the BIA, rejected Vumi’s application for asylum and withholding of removal.

The Court of Appeals noted that persecution on account of membership in a particular social group was defined as persecution directed toward an individual belonging to a group whose members all share a common, immutable characteristic. First, the Court found that the IJ and BIA had failed to consider Vumi’s membership in her ex-husband’s family, which might support a finding of persecution under this ground. Therefore, the Court reasoned, it was necessary to remand Vumi’s case for the BIA to consider such a claim.

Next, the Court determined that the BIA and IJ failed to examine the political context in which Vumi’s treatment by the DRC military occurred. Because the political atmosphere in the DRC clearly did not allow for peaceful change, the Court found that the BIA and IJ should have considered the potentially political nature of Vumi’s abuse, which went well beyond the scope of normal investigations into a political assassination. Thus, the Court held that it was also necessary to remand this case so that the BIA could decide whether Vumi’s persecution was the result of her political opinion.

For these reasons, the Court granted Vumi’s petition for review, vacated the BIA’s opinion, and remanded the case for the BIA to properly determine whether a protected ground was implicated in Vumi’s case, thus entitling her to asylum and withholding of removal.

 

 

Judge(s): Hon. Guido Calabresi, Hon. Richard C. Wesley, Circuit Judges, Hon. William K. Sessions III, District Judge
Jurisdiction: U.S. Court of Appeals, Second Circuit
Amicus Lawyer(s) Amicus Law Firm(s)
Deborah Anker Harvard Law School

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Jon Bauer University of Connecticut, School of Law, Legal Clinic

 
Respondent Lawyer(s) Respondent Law Firm(s)
Nora Dannehy U.S. Attorney General's Office
Alberto Gonzale U.S. Department of Justice
Edward J. McElroy U.S. Department of Justice

 

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bia in matter of acosta set forth the following standard:14 imputed political context."3 husband, was "disproportionate to the crime," which would indicate persecution on grounds of15 refusal, did, in fact, rape her. when she developed a fever and nosebleeds, vumi was transferred18 (b)4 precedent, "family membership can constitute membership in a particular social group for10 but if such membership may support a social group grounding of persecution, it must be20 id.25 1231(b)(3). diallo, 232 f.3d at 284-85.4 result, the izatula board reversed an ij's conclusion that political opinion was not a valid ground9 were arrested by the government," and noted that "[a] number of female defendants appear to be20 group." the board noted that vumi made no claim of family relationship with the relatives of26 consciences.26 circumstantial evidence" that her persecution "was motivated, at least in part, by an actual or5 17 suspects. since vumi has not pressed that claim on appeal, we do not here review it.7 information about him and about the assassination, and looted the house. in mid-march 2001,18 14 1 exclusively whether the congolese military's detention, investigation, and torture of vumi was29 [petitioner]'s family presents the kind of `kinship ties' that constitute a `particular social group.'1 claim. koudriachova v. gonzales, 490 f.3d 255, 261-63 (2d cir. 2007). in koudriachova, the10 19 kayitaba's suspected crime and the significance of the interrogation's scope that unquestionably27 which suspected her ex-husband of involvement in the january 2001 assassination of then-drc20 standard. 8 u.s.c. 1252(b)(4)(b); see also ins v. elias-zacarias, 502 u.s. 478, 481 (1992).15 treatment or punishment ("cat"), dec. 10, 1984, s. treaty doc. no. 100-20, 1465 u.n.t.s. 85.18 content of the interrogation or the severity of the methods used by the congolese military. the ij13 8 36 vumi also asserts that she was persecuted on account of an anti-kabila political opinion7 common, immutable characteristic. the shared characteristic might be an18 rather than by summary order, referred the case to the regular argument panel. the honorable william k. sessions iii, of the united states district court for the district of it is, moreover, well-established that vumi "cannot be expected to provide direct proof of13 to be eligible for asylum relief, an applicant must show that she has suffered past16 13 17 vumi was detained for one week in a dark cell in which soldiers tied her hands behind21 authorities to suspect that the applicant and his father were involved with4 recently, the bia has deemed the family or clan to be a "particular social group" when its14 (a)1 where a coup is the only means of effectuating political change, prosecution for attempting to4 persecution, but that she failed to demonstrate that the harm she suffered was on account of a2 find that in rejecting any nexus between vumi's persecution and imputed political opinion, the18 for all these reasons, we must remand vumi's claim of imputed political opinion to the3 refugee clinic (nancy kelly and john5 "nuclear family" claim, that is, it must do so in light of koudriachova, 490 f.3d at 261-63.5 president laurent kabila. on december 10, 2004, an immigration judge ("ij") granted vumi's21 the second group consists of the "family members of the presidential bodyguards and security8 willshire-carrera on the brief), boston, ma,6 legitimate." it is clear that the ij's reasoning fails to comport with the standard for evaluating16 opinion claims, stating in in re s-k-, 23 i. & n. dec. 936, 940-41 (bia 2006), that in countries3 suppress political opinion as well as illegal conduct (e.g., an act may20 to show that the soldiers deemed her refusal to provide information as reflecting her own anti-10 existing political situation in afghanistan to be different from that of23 innate one such as . . . kinship ties, or in some circumstances it might be a19 25 vumi v. gonzales suspects in examining her particular social group membership. it too completely ignored her4 [a] persecutor['s] motives," ins v. elias-zacarias, 502 u.s. 478, 483 (1992), and that the14 in june 2001, however, when she was returning from work, vumi was again captured by6 kayitaba, but in fact they are quite distinct. the first group is "her husband's particular family."7 particular social group" to mean persecution that is directed toward an16 before us, petitioner challenges the agency's determination that she did not suffer27 support of the mujahidin constituted persecution on account of political6 refugees project.9 3 and summarily rejected, only the second of vumi's social-group claims, stating: "[i]t appears that19 a kabila bodyguard at the time of the assassination[,]' [did] not qualify as a particular social25 on trial purely because they are related to suspects in the assassination." the state department21 congolese government's human rights record, and, in particular, its treatment of detainees who23 neither the ij nor the bia considered whether vumi's membership in kayitaba's nuclear family17 light of her past mistreatment and the drc's current human rights record, the ij granted vumi's19 cir. 2000) (citing ins v. cardoza-fonseca, 480 u.s. 421, 431 (1987)). an applicant who1 who advised her to leave the drc. she received assistance in obtaining a passport and u.s. visa3 opinion.7 university of connecticut school of law,34 that vumi was "ever questioned about her political activities or views, or [about] her affiliation3 vermont, sitting by designation. interrogations were informed by military officials' suspicion of vumi's anti-kabila opinion or19 should have been considered by the ij and bia in evaluating the extent to which the drc18 standards for mixed motive claims.5 as part of a search for his brother, whom the police believed to be a member of the mujahidin:23 2 fled to rwanda and called vumi to inform her of his location. in february 2001, a group of16 bia so that it can properly examine that allegation in light of the agency's own established4 the democratic republic of congo ("drc"), applied for asylum and withholding of removal15 we review the decision of the ij as supplemented by the bia. see yu yin yang v.9 `particular social group.'" (citing gomez v. ins, 947 f.2d 660, 664 (2d cir. 1991)). and that, by1 the bia has long recognized that "kinship ties" may form a cognizable shared12 and helped her to escape. vumi then went into hiding with an aunt. vumi's friend in the20 was a rwandan, and a tutsi, and had fled the area. clearly, the11 the ij expressly noted petitioner's contention that her nuclear family forms one basis of11 in the case before us, the ij and bia did not consider the potentially political nature of26 v.18 individual who is a member of a group of persons all of whom share a17 those of the government." 21 i. & n. dec. 486, 494 (bia 1996) (emphasis added). the s-p-22 underlying those acts.").11 the analysis:11 16 that any punishment which the afghan government might impose on the15 hartford, ct, for petitioner.35 24 1991. though the couple separated in 1994, they both remained in kinshasa in the drc and12 implicated the "particular social group" ground of protection under the ina. the ij addressed,18 ____________________________________12 particular social group because "relatives of assassination suspects" do not necessarily comprise4 the bia's seminal decision in matter of acosta defines the standard for what constitutes10 action to defend itself from an armed rebellion. the country reports18 suspects do not have any relation to each other; and this group is not "sufficiently recognizable6 claims.22 evaluate an applicant's claim that the government harmed him based on his imputed political4 determining whether harm was inflicted because of the applicant's acts or because of his beliefs10 nor its political context in the drc, as our cases require. id. at 1029.20 account of the victim's political opinion." osorio v. ins, 18 f.3d 1017, 1028 (2d cir. 1994). we17 circumstantial evidence from which it is reasonable to believe that those who harmed the20 bia's decision in vumi's case our court has examined the general issues involved in that9 circumstances, the fact that neither the ij nor the bia addressed that proposition, and hence10 two particular social groups. both these groups derive from her marital relationship to charles6 overthrow the government is a form of political persecution.5 actions.20 her back, cut her hair, shined bright lights in her eyes, and hit her whenever she provided22 satisfies the higher burden of demonstrating a clear probability of future persecution on account2 assassination of the former president. but in reaching this conclusion, the bia and ij failed to4 proposed group is not "sufficiently recognizable and discreet [sic] as viewed by society in general1 ____________________________________31 nora r. dannehy, assistant u.s. attorney, for37 of asylum for an individual who was arrested and tortured by afghan government officials based10 information from him about his brother, who was a mujahidin member,2 analysis prescribed in matter of s-p-. it failed to gauge whether the drc's interrogation and13 persecution "on account of race, religion, nationality, membership in a particular social group, or17 additionally, the ij and bia did not adequately take into account the potentially deeply17 there is not one specific family involved in this proposed group, but a number of families that20 docket no. 05-6185-ag11 she alleged that she had been twice arrested, interrogated, and mistreated by the drc military,19 group or her political opinion.8 and nationality act." chun gao v. gonzales, 424 f.3d 122, 129 (2d cir. 2005) (internal11 kevin j. o'connor, u.s. attorney for38 in the case before us, the ij conducted no such mixed-motive analysis based on the12 determination on the same basis. petitioner subsequently sought our review of the bia's25 change because it is fundamental to their individual identities or25 dec. at 493. the undisputed record of vumi's multiple arrests, extended detention, and torture17 petitioner,16 3 (b)16 department of social services again secured her a false passport and visa, and vumi left the21 reasonable in light of the fact that her husband was a bodyguard of kabila,10 alterations and quotations omitted).12 location, they arrested her.20 stayed in contact because they had a child together. in 1997, kayitaba began work as a chauffeur13 (a)3 country report from 2001, the year in which vumi applied for relief, details at length the22 soldiers who forced her into a military truck and brought her to a military camp called kokolo.7 5. the extent to which suspected political opponents are subjected to23 members of the tamil tigers. id. at 487-88. the board recognized that it is "not an easy task" to3 ____________________________________5 moreover, the agency did not apply the reasonableness standard for mixed-motive12 applicant were in part motivated by an assumption that [her] political views were antithetical to21 21 of either of two grounds for asylum and withholding relief: her membership in a particular social7 and refugee clinical program, women8 drc at the end of july 2001. when vumi spoke with her family by telephone, they informed her22 finding, however, a "significant likelihood" that vumi would be arrested and tortured in18 in doing so, the bia stated:13 imputed to her. we conclude that the ij and bia erred in evaluating vumi's claim, and we1 between gomez and the bia's rulings in acosta, 19 i. & n. dec. at 233-34, and in re c-a-, 23 i.12 because the agency failed to consider whether vumi's individual family constitutes a18 respondent.22 the drc.5 example of a legitimate and internationally recognized government taking17 members are recognizable by virtue of shared immutable characteristics "inextricably linked to15 * * *17 4. the extent to which antiterrorism laws are defined and applied to19 which is kept in power by the soviet union." we accordingly find the22 imputed political opinion claims as outlined in the bia's own opinion in matter of s-p-.17 which the drc soldiers imputed to her based on kayitaba's suspected involvement in the8 countries where a coup is the only means through which a change in the political regime can be29 ____________________________________11 15 we have no reason to doubt that the ij and bia held that vumi's treatment constituted5 ii. discussion1 political opinion . . . ." id. (emphasis added).8 punishment for what vumi claimed was a "politically related act," namely covering up for her14 remains to be determined on a case-by-case basis. however, whatever the22 the mujahidin too. . . . the applicant's detention and imprisonment for his5 political opinion rather than prosecution or legitimate law-enforcement interrogation. 21 i. & n.16 415, 424 (1999). we review the agency's factual findings under the substantial evidence14 for the second circuit4 13 11 10 far exceeded the bounds of legitimate questioning. instead, the agency evaluated almost28 22 attributed, can constitute a ground of political persecution within the meaning of the immigration10 persecutory motives, and identified the following nonexhaustive list of factors that may inform10 interrogations to determine kayitaba's "destination, and they also wanted [her] to tell them10 [to be] . . . a particular social group."2 we vacate the decision of the bia and remand the case for further proceedings.7 despite vumi's uncontested assertion of this claim, and its seeming recognition by the ij,16 4 1 beyond the bounds of legitimate questioning, the questioning itself appears to have been15 petitioner had failed to demonstrate that the harm she suffered was on account of a protected23 iii. conclusion6 but also because the discovery of mujahidin fliers in his house led3 the ij found that vumi's brutal treatment by the military unquestionably amounted to1 may make that evaluation in the first instance. see thomas, 126 s. ct. at 1615.14 440 f.3d at 69. on remand, if vumi opts to return to that claim, the bia may wish to review its14 only regarding "her husband's whereabouts" but also concerning "the assassination" itself. yet8 report findings in evaluating imputed political opinion. but the agency wholly failed to apply this25 calabresi, circuit judge:13 a particular social group. 19 i. & n. dec. 211, 233-34 (bia 1985), overruled in part on other11 a group of persons with similar backgrounds, habits, or social status; the families of assassination5 examine the political context or country conditions in drc. in matter of izatula, 20 i. & n. dec.5 and military officers who had been serving at the time of the kabila assassination." it is the first9 [f]rankly . . . the government's interrogation of [vumi] would be quite9 from a friend in the department of social services and scheduled a mid-july 2001 flight out of4 practice in which "members, or family members, or wives of assassination suspects have been or19 attempt to rape her was unsuccessful, but he returned another day, repeated his offer, and on her17 21 actions by the perpetrators or abuse out of proportion to nonpolitical ends);14 drivers are not cognizable as a particular social group because they can change professions, the13 a person suspected of participating in the laurent kabila assassination . . . .".15 membership." (emphasis added). in light of the board's own observation that, under its9 soldiers insistently pressed her to reveal her own knowledge of the assassination. indeed, the ij6 was in rwanda because she feared that "they [would] keep on asking [her] some questions for12 lawfully constituted government does not constitute persecution . . . [is not] applicable in28 (2) imputed political opinion6 it bears underscoring that the bia must apply the correct standard on remand to vumi's4 minimally, and beaten with whips. the soldiers subjected her to repeated, two-hour long9 august term, 20067 common characteristic that defines the group, it must be one that the23 discussed below. the nac panel, however, believing that the case warranted decision by opinion only a slight, though discernible, chance of persecution." diallo v. ins, 232 f.3d 279, 284 (2d20 9 was able to secure her release. vumi subsequently related the news of her detention to kayitaba,2 05-6185-ag 12, 17 (2002) (per curiam) ("generally speaking, a court of appeals should remand a case to an21 review is granted, the order of the bia is vacated, and the case is remanded to the29 v. gonzales, 126 s. ct. 1613, 1615 (2006) ("the agency has not yet considered whether23 1. indications in the particular case that the abuse was directed toward12 was not telling them the truth.14 statutory term."); see also ucelo-gomez, 464 f.3d at 168.3 punishment imposed by the [] government would be a legitimate exercise of sovereign12 under the immigration and nationality act ("ina"), 8 u.s.c. 1158, 1231, and for relief under16 considered by the agency. and it is beyond cavil that the agency failed to address this part of21 luluengisa chantal vumi14 petitioner fled her native country for the united states and arrived in july 2001. in6 application for asylum and withholding of removal.17 suffice, because "prosecution for an offense may be a pretext for punishing an individual for his7 jon bauer, asylum and human rights clinic,33 9 political nature of vumi's persecution. see osorio, 18 f.3d at 1028. in matter of s-p-, the bia18 inflicted, in whole or in part, on account of imputed political opinion. instead, the ij held that8 the bia adopted and affirmed the ij's decision denying asylum and withholding relief. it23 something about mr. laurent [kabila's] assassination." vumi refused to reveal that kayitaba11 of one of the five grounds is automatically entitled to withholding of removal under 8 u.s.c. 3 or circumstantial evidence" that vumi's harm was "motivated, at least in part, by an actual or2 family ties." matter of h-, 21 i. & n. dec. 337, 342 (bia 1996). while the bia has stated that it16 [petitioner's country was] different from that of countries where citizens have an opportunity to7 originally claimed before the agency that she was persecuted on account of her membership in5 secret police in detaining and abusing the asylum applicant. the police imprisoned the petitioner22 of her membership in a second particular social group: that of family members of assassination6 in september 2001, petitioner luluengisa chantal vumi ("vumi"), a native and citizen of14 [w]e interpret the phrase "persecution on account of membership in a15 alberto gonzales20 on suspicion that he provided supplies to mujahedin engaged in armed rebellion against the11 driven by her membership in la voix des sans voix and, on this basis, found "insufficient direct1 individual family relationship to kayitaba. remarkably, the board concluded that vumi's5 imputed" political opinion.6 including developing international norms regarding the law of war;18 in a nuclear family may substantiate a social-group basis of persecution.19 political structure of the government via peaceful processes.25 ____________________________________26 vumi's claim. it follows that the bia's misconstruction of vumi's appeal was essential to its22 itself, would require that we grant the petition and remand the case to the bia.2 [w]e find no basis in the record to conclude, as the immigration judge did,14 no such evaluation can be discerned in the instant case. moreover, the record before us6 for respondent.2 have been assassination suspects." (emphasis added). on this basis the ij concluded that vumi's22 but it entirely ignored testimony that, during vumi's military interrogation and torture, the5 persecution. accordingly, the key issue on appeal is whether vumi's persecution was on account6 in matter of b-, the bia examined in this way the possible mixed motives of the afghan21 * 149 (bia 1990), the board required consideration of whether "the existing political situation in6 protected ground. first, the ij concluded that the harm was not inflicted due to membership in a3 finally, the ij also concluded that any persecution that vumi might face in the future would not15 stated: "the particular social group that ms. vumi is relying on [is] membership in the family of14 military soldiers entered vumi's house to search for kayitaba, demanded that she reveal17 (1) particular social group under the ina, we must remand this case to the bia so that it may19 protected ground under the ina need not be the sole motive: "the plain meaning of the phrase15 political opinion," or that she has a well-founded fear of future persecution on account of one of18 in the interests of judicial economy, however, we note that very recently and since the8 the matter requires determining the facts and deciding whether the facts as found fall within a2 violations. id. at 494. nevertheless, the bia continued, "a combination of . . . motives" could6 claim for cat relief but denied her applications for asylum and withholding, finding that22 15 held that persecution based on political opinion is established when there is "direct or19 assassination of laurent kablia. "[a]n imputed political opinion, whether correctly or incorrectly9 vumi's testimony as true.10 assassinated, january 16, 2001, kayitaba was suspected of involvement in the assassination. he15 about his political views, they had demanded information about the identity and location of2 arbitrary arrest, detention, and abuse.24 id. at 153-54 (emphasis added) (citations omitted) (citing dwomoh v. sava, 696 f. supp. 970,26 other assassination suspects, and that the "general characteristic of the purported group [was]1 explain that in afghanistan, "[c]itizens have neither the right nor the19 finally, the ij mentioned background materials indicating the congolese government18 for amicus curiae, harvard immigration7 8 members of the group either cannot change, or should not be required to24 3 moreover, the board recently affirmed this framework for examining imputed political2 9 2003). where a question of interpretation of an ambiguous statutory term is involved, however,12 ability peacefully to change their government. afghanistan is a totalitarian20 32 authority," matter of izatula, 20 i. & n. dec. at 154, requires us to remand so that the agency13 court discussed the proper interpretation of our decision in gomez, 947 f.2d at 664, the relation11 we vacate and remand to the bia for further evaluation of the case consistent with the7 state under the control of the [people's democratic party of afghanistan],21 in s-p, the bia approved a "totality of the circumstances" analysis for discerning9 8 the united nations convention against torture and other cruel, inhuman or degrading17 of these that she presses on appeal.10 vumi testified that she married charles kayitaba, a rwandan citizen and ethnic tutsi, in11 with her former employer la voix des sans voix," the bia found "insufficient direct or4 and bodyguard for then-president laurent kabila. because he was on duty on the day kabila was14 petitioner had been captured by the sri lankan military while working as a welder at a camp run23 27 efforts might provide a valid basis for robust law-enforcement responses. under the9 kabila political opinion.11 the ij and bia decisions did consider vumi's claim that she was persecuted on account5 gonzales, 431 f.3d 84, 85 (2d cir. 2005). questions of law and the application of law to10 evaluate this claim according to the acosta standard as we have applied it in gao.2 the record indicates that the applicant was arrested . . . not only to obtain1 prison, the soldier fondled her, struggled with her as she resisted, and urinated on her. his16 i. background5 the district of connecticut, new haven, ct,1 applicant on account of his support for the mujahedin would be an16 of the assassination" failed to allege any "indicat[ion] that she shares a familial or clan7 concluded that the government was "truly interested in getting information from [vumi]" not7 characteristic for a particular social group. see, e.g., acosta, 19 i. & n. dec. at 233. and more13 & n. dec. at 960, and the meaning of gomez in light our decision in hong ying gao v. gonzales,13 we begin with the bia's failure to evaluate fully vumi's social group claim. she4 relationship with the other members of her defined group, thus there is no claim of family8 framework in the instant case.26 be on account of a protected ground. as a result, on each of these bases, the ij denied vumi's16 agency for decision of a matter that statutes place primarily in agency hands."); see also thomas22 evaluate the evidence properly and make the initial determination. see ins v. ventura, 537 u.s.20 before: calabresi, wesley, circuit judges, sessions, district judge.* 12 * * *2 also, the government may well have been annoyed at [vumi] because she13 finding that the "general characteristic of the purported group . . . insufficient to constitute a23 application for cat relief, because such relief does not require a nexus to a protected ground. in20 first, we consider the political context in which vumi's persecution took place. the2 seek change in the political structure of the government via peaceful processes." id. at 154. as a8 citizen, instead stating that he was from the kivu province of the drc.14 membership in a particular social group agency deemed plausibly reasonable the drc's law-enforcement interest in investigating the3 we give deference to the bia's reasonable interpretation. see ins v. aguirre-aguirre, 526 u.s.13 ("notably, the board in matter of b- did not become entangled in the impossible task of9 10 12 january 2005, the ij denied vumi's motion for reconsideration of her asylum and withholding21 her group claim because "her familiar [sic] relationship to her husband is something that she does12 this case was originally docketed on our non-argument calendar ("nac"). see interim local ownership. the particular kind of group characteristic that will qualify . . .21 government agents in similar circumstances;16 broadly prohibit "disruptive" activities to permit application to peaceful as21 reached no conclusion on whether "there is [a] basis in the record to conclude that any11 after vumi refused to perform sexual favors for a soldier in return for her release from15 the bia stated that vumi was not "questioned about her political activities or views."4 incomplete characterization of vumi's proposed "particular social group" and in their failure to1 relief. following an interview with an asylum officer in january 2002, vumi's case was referred8 and, accordingly, constituted a political context different from those wherein anti-government8 undisputed fact are examined de novo. see secaida-rosales v. ins, 331 f.3d 297, 307 (2d cir.11 from her cell to the military camp hospital where one of the nurses recognized vumi from church19 by the tamil tigers, and though the petitioner's interrogators had made no direct statements1 6 decision in view of koudriachova.15 10 well as violent expressions of views);22 id. (emphasis added). our court endorsed this standard in hong ying gao v. gonzales, 440 f.3d28 979 (s.d.n.y. 1988) ("[the] general rule [that] prosecution for an attempt to overthrow a27 27 and discreet [sic] as viewed by society in general." second, the ij did not find that the harm was7 united states court of appeals2 effected.")).1 unsatisfactory answers to their repeated demands for information about kayitaba's location.23 afghan government.12 that the military continued to look for her at her house.23 matter of b-, 21 i. & n. 66, 71 (bia 1995); see also matter of s-p-, 21 i. & n. dec. at 4988 7 bia and the ij "examined neither the political dimension" of the military's treatment of vumi19 could be read to support the proposition that the congolese regime did not allow peaceful change7 rule 0.29. the government, to its credit, consented to a remand for many of the reasons persecution on account of her membership in a particular social group or due to political opinion28 dec. 951, 959 (bia 2006) (emphasis added), the board has held unambiguously that membership18 modifying or punishing opinion rather than conduct (e.g., statements or13 september 2001, vumi filed an i-589 application for asylum, withholding of removal, and cat7 stated that vumi's "alleged social group, defined as `family member[s] of a person who served as24 proper standards for both social group and imputed political opinion persecution claims.8 deborah anker, harvard immigration and4 3 2. treatment of others in the population who might be confronted by15 the agency failed to address whether this and similar evidence proffered by vumi was sufficient9 (argued: march 15, 2007 decided: august 31, 2007)9 has not ruled "categorically that membership in any clan would suffice," in re c-a-, 23 i. & n.17 countries where citizens have an opportunity to seek change in the24 these grounds. see 8 u.s.c. 1101(a)(42). "an alien's fear may be well-founded even if there is19 decision.26 5 3. conformity to procedures for criminal prosecution or military law17 to an ij. after hearing her testify and reviewing her documentary submissions, the ij accepted9 15 4 1 the military soldiers returned to vumi's home. when vumi refused to reveal kayitaba's19 really do not have any relationship to each other except for the fact that their family members21 insufficient to constitute a `particular social group.'" in addition, noting the absence of evidence2 1 claimed status as the "family member of a person who served as a kabila bodyguard at the time6 6 ____________________________________23 purposes of asylum," this was clear error.11 eventually, a human rights organization of which vumi was a member, la voix des sans voix,1 shared past experience such as former military leadership or land20 acknowledged that "while certainly, in this case, the harm inflicted on the respondent went well14 which [she] didn't have an answer." vumi also did not reveal that kayitaba was a rwandan13 views, rather than because of a "desire to obtain intelligence information" or prosecute legal5 on petition for review of an order of the board of immigration appeals ("bia"). the petition for28 for two weeks, vumi was kept in a dirty, mosquito-infested cell with no furniture or toilets, fed8 these protected grounds for asylum and withholding relief.3 ground under the ina. the board of immigration appeals ("bia" or "the board") affirmed this24 bia for further proceedings.30 government had a very rational reason to interview or interrogate [her].12 remand to give the board the opportunity to determine properly, in the first instance, the scope of2 16 grounds by matter of mogharrabi, 19 i. & n. dec. 439 (bia 1987). holding that salvadoran taxi12 not have the power in which to change." and in her brief to the bia, the petitioner clearly13 the bia also addressed only vumi's relationship to the families of other assassination3 were perceived to be political opponents. matter of s-p- relied on just these types of country24 62, 67-70 (2d cir. 2006). we conclude in the instant case that the ij and bia erred, both in their29 `persecution on account of the victim's political opinion,' does not mean persecution solely on16


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