Sealed v. Sealed
2016 U.S. App. LEXIS 13051
| 5th Cir. | 2016Background
- Petitioner, an Ethiopian national and member of the Ogaden clan, alleges Liyu police in Fik detained, tortured, and killed several family members and twice detained and tortured him after accusing them of supporting the Ogaden National Liberation Front (ONLF).
- Petitioner was detained ~2 months, physically tortured, released only after agreeing to act as an informant, then fled Ethiopia and arrived in the U.S. in 2013 and applied for asylum, withholding, and CAT protection.
- The IJ found Petitioner credible, granted CAT relief, but denied asylum and withholding under the INA holding the government’s actions were solely a legitimate terrorism investigation (not persecution on account of a protected ground).
- The BIA affirmed in a one-page decision, adopting the IJ’s conclusion that investigation of terrorism was the exclusive motive and thus no asylum/withholding under the INA.
- The Fifth Circuit reviewed de novo legal conclusions and for substantial evidence factual findings, and remanded because the IJ/BIA failed to apply the BIA’s S-P- mixed-motive factors to determine whether the investigation was a pretext for persecution on account of protected grounds (ethnicity, imputed political opinion, or family).
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether harm was "on account of" a protected ground (one central reason) | Petitioner: Liyu police targeted Ogaden clan members and family; investigation was pretext for persecution on account of ethnicity, imputed political opinion, and family membership | Government: Actions were legitimate counterterrorism investigation into suspected ONLF support, so harm was not on account of a protected ground | Remanded: IJ/BIA failed to analyze mixed motives using S-P- factors; BIA must reconsider whether a protected ground was a central reason |
| Whether imputed political opinion can support asylum | Petitioner: Government erroneously believed him to support ONLF; that mistaken belief is imputed political opinion | Government: Focused on investigation into terrorism, not persecution for opinion | Court: Imputed political opinion is a cognizable ground; BIA must evaluate if it was a central reason on remand |
| Whether family membership or clan constitutes a particular social group | Petitioner: Family and Ogaden clan membership are particular social groups | Government: Treated matter as counterterrorism, not group-based persecution | Court: Assumed arguendo these are particular social groups and directed BIA to analyze if they were central reasons |
| Whether IJ’s factual findings are supported by substantial evidence given mixed motives framework | Petitioner: Evidence (family killed/detained, lack of charges, brutality, pattern against Ogaden) undermines sole-investigation finding | Government: Relied on precedent upholding terrorism-investigation findings | Court: Substantial-evidence review requires the agency to apply S-P- mixed-motive factors; remand required for further consideration |
Key Cases Cited
- Mwembie v. Gonzalez, 443 F.3d 405 (5th Cir.) (upholding BIA where record supported legitimate terrorism investigation)
- Ozdemir v. INS, 46 F.3d 6 (5th Cir.) (investigation-only motive where petitioner’s conduct tied closely to unrest)
- Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir.) (excessive or arbitrary punishment for criminal conduct can constitute persecution)
- Majd v. Gonzales, 446 F.3d 590 (5th Cir.) (standards for reviewing BIA factual findings)
- Martinez-Martinez v. Holder, 769 F.3d 897 (5th Cir.) (substantial-evidence standard description)
- Sharma v. Holder, 729 F.3d 407 (5th Cir.) ("one central reason" standard under REAL ID Act)
- Shaikh v. Holder, 588 F.3d 861 (5th Cir.) (mixed-motive analysis and BIA deference)
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir.) (noting CAT torture standard is more stringent than well-founded fear for asylum)