Mocktar Tairou v. Matthew Whitaker
909 F.3d 702
| 4th Cir. | 2018Background
- Petitioner Mocktar Tairou, a Beninese national, is bisexual and had a romantic relationship with a French man (AY) who visited Benin in 2009 and 2013.
- After being photographed kissing AY in public, Tairou was summoned to his father’s village and held for about five hours by ~40 men who threatened, slapped, and harassed him; several persons threatened he "should die" and some explicitly threatened to kill him.
- About a week later two cousins invaded his home, beat him (his young son was injured defending him), brandished a knife, and threatened to kill or publicly shame him and harm his family; he received repeated anonymous threatening knocks and phone calls thereafter.
- Tairou testified that police would not protect him; AY reported police visited AY’s apartment after being told AY was homosexual, and AY left Benin.
- An asylum officer found a credible fear; at removal proceedings the IJ found Tairou credible and a member of a particular social group (homosexuals in Benin) but denied asylum and withholding; the BIA reviewed de novo and denied relief, concluding cumulative harm did not rise to persecution.
- The Fourth Circuit granted review and reversed the BIA’s past-persecution finding, remanding for the BIA to apply the rebuttable presumption of future persecution and determine whether the Government can rebut it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tairou suffered past persecution | Threats of death, violent home invasion, ongoing targeted threats and harassment cumulatively constitute past persecution | Harm was not severe (no major physical injuries or long-term mental harm); cumulative harm does not reach persecution | Court held multiple explicit death threats qualify as past persecution; BIA erred by requiring additional long-term injury |
| Whether petitioner is entitled to a presumption of future persecution | Past persecution triggers a rebuttable presumption of well‑founded fear of future persecution | Government did not concede rebuttal; argued no past persecution so no presumption applies | Court remanded: presumption applies and BIA must determine whether Government can rebut it |
Key Cases Cited
- Li v. Gonzales, 405 F.3d 171 (4th Cir. 2005) (defines persecution and requires harm above mere harassment)
- Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (threats can constitute persecution)
- Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) (reiterates that threat of death qualifies as persecution)
- Djadjou v. Holder, 662 F.3d 265 (4th Cir. 2011) (BIA abuses discretion when it fails to reason or disregards important aspects of claim)
- INS v. Ventura, 537 U.S. 12 (2002) (remand for agency to apply legal presumption rather than court deciding rebuttal)