*1 hеn on Hall’s imposition equitable of an Id. claims.” of nonfrivolous litigation and its denial of Security benefits City Springfield, Social Ridder v. (quoting Cir.1997)). Plan, (6th REMAND attorney An award to the fees F.3d “a requires thus court for reconsid- the statute the case to the district fees under subjective than something attorney- less showing equitable-lien eration of the than faith, something negli more bad fees issues. (quoting Id. Red
gence incompetence.” Advantage, Source
Carpet Studios Div. of Safer, Cir. F.3d
Ltd.
2006)). court in this case was
The district attorney, noting that the
critical of Hall’s an inordi spend forced to
Plan “has been money defending time and nate amount of Petitioner, HAIDER, Mohamed motions filed against repeated meritless second, attempt in an to have [Hall]
third, in the apple at the or further bite HOLDER, Jr., Respondent. H. Eric claim.” Yet the litigation of her benefits to award the Plan district court declined No. 08-4010. attorney “given purported Plaintiffs fees Appeals, United States Court financial situation.” Sixth Circuit. support the denial That reason does rationale for the district of fees. The Oct. Argued: “purported finan court’s decision—Hall’s and Filed: Feb. Decided improper basis for cial situation” —is § under 1927 because the denying fees imposition of sanc
statute authorizes “any attorney per or other only
tions on conduct cases.” 28 U.S.C.
son admitted to Rentz, 1927;
§ F.3d at 395-96 see also may
(observing that fees under
imposed only parties’ attorneys, on rather themselves). No other parties
than on the support the denial of
reason was offered request attorney fees. Un
the Plan’s standard, we
der an abuse-of-discretion court’s reliance uphold
cannot the district
solely on a factor irrelevant to the
inquiry.
III. CONCLUSION above, forth
For all of the reasons set of the district judgment
we AFFIRM the regarding
court the Plan’s termination partial
benefits its claim for reim-
bursement, the district court’s VACATE
OPINION MOORE, Circuit KAREN NELSON Judge. *3 (“Haider”) petitions
Mohamed of the review of the order this court for (“BIA”) de- Immigration Appeals Board of withholding of nying application his for Na- Immigration removal under (“INA”) and the United Na- tionality Act (“CAT”). Against Torture tions Convention (“IJ”) re- Judge denied Immigration The ground BIA affirmed on the lief and the that his life or prove could not that Haider threatened on account freedom would be that he would be ground or protected Algeria. Having in reviewed tortured compels it carefully, we hold that evidence Haid- finding Algerian police abused political affilia- suspected er because of a perse- that the abuse constituted tion and petition therefore GRANT the cution. We respect REMAND review and with for time, At INA claim. the same respect to his petition DENY the claim under the CAT. Bratton, Margaret Scott ARGUED: Cleveland, Co., LPA, Wong & Associates I. BACKGROUND Kamani, Ohio, for Petitionеr. Nehal H. Background A. Factual Justice, Department United States D.C., ON Washington, Respondent. for Algeria 1977 and Haider was born Bratton, Margaret Wong & BRIEF: Scott moved to there until when he lived Cleveland, Ohio, Co., LPA, for Associates he en- September France. On Kamani, Aviva L. Petitioner. Nehal H. with a fake tered the United States Poczter, Department 28, 2002, Jus- United States December passport. French On D.C., tice, Respondent. Washington, for a U.S. citizen. Upshaw, he married Lisa 6, 2003, application he filed an January
On BOGGS, MOORE, and under asylum, withholding Before: of removal for GIBSON, INA, un- Judges.* withholding Circuit of removal application remained
der the CAT. His time he J., years, during which Moore, open for five delivered wife, GIBSON, J., through applied court, secured a visa joined. in which status, re- adjustment 289-91), and was denied BOGGS, (pp. J. delivered on his 2001 appear a notice to based ceived separate dissenting opinion. * Circuit, Gibson, sitting by designation. Judge Eighth The Honorable John R. Circuit Appeals for the the United States Court of illegal entry, pend- and was then detained and “started doing stuff.” J.A. at 145. ing April hearing removal. At an They put large gun buttocks, into his claims, asylum withholding on his tauntingly asked you “how do like that?” following experi- Haider testified to the and demanded that aiding he admit to police: ences with terrorists and terrorists. 145-46. When him, they released warned “it’s going to be dropped GIA. Haider out of school thing” same the next time. J.A. at activity 1995 because terrorist dangerous area made it too to continue. uncle, began working
He a clothing for his summer, That officers in another area Morocco, seller who often traveled to Tuni- *4 stopped Haider and ques- two friends for sia, Libya buy and to That year, clothes. tioning. The police detained him for five an anti-government group terrorist known hours, off, face, took his spat clothes in his began trying as the GIA1 to recruit Haid- repeatedly him struck in his back with spy police. er to on local The GIA threat- gun, causing bruising. They accused family, including ened to hurt his a second being him of spy terrorist and promised officer, police uncle who was a if he re- worse if they abuse ever him again. saw excuses, put fused. He them off with re- 1997, In February or March police ac- lenting only once.2 him costed on the street and struck him In 1996 or shot GIA and killed in right four times his ear. The officers cousin, Haider’s who worked as a mechan- wall, him put against a searched him and ic, refusing give them a car. In luggage, his and stole some of his mer- friend, the GIA murdered Haider’s chandise. One of them pulled also down who police had worked for the for six pants, put Haider’s his hands on and in months, in front of him at a shopping buttocks, and did the same with a Haider, plaza. They said to “[i]t’s been a large gun. Again, they threatened him with while, you, we haven’t seen Libya?” how’s later, worse the next time. Two months they to show that remembered him. Joint flu, Haider went to see a doctor about the (“J.A.”) Appendix They at 167-68. then and the doctor him informed he had blood ground, kicked his friend to the him shot right ear. leg, and shot him twice the chest or hеad. The trying GIA continued 8, 1997, July On officers who had abused through recruit Haider past brother, Haider in the ran over his killing police, him. The who were re- The police Police. The often searched bomb, sponding reported to a car claimed working Haider and accused him of with the incident accident. Haider In be- they stopped terrorists. him as home, they lieves that him, pur- he killed his brother on returned searched and said pose “you up. work for the and tried to cover it police terrorists.” J.A. at 144. The May statement, In four get sign officers searched him tried to Haider to luggage, pulled pants, and his down his but he refused and family convinced his Group, reported GIA stands for Armed Islamic from 2. Haider watched an area and back "Groupe Islamique the French Armé.” After nothing. government that he had seen The military Algerian seized control of the argued ineligi- below that this act made him government prevent in 1991 to the rise of an ble for relief. Neither the IJ nor the BIA political party, sprung up Islamic the GIA point, government addressed this and the has response and launched terrorist attacks on appeal. not raised it in its brief on through- institutions and officials out the 1990s. immediately, plained why he did not file The then retaliated police file suit. why he waited months. Haider, sixteen him on threatening at least against 1997, an twenty In October occasions. Second, the IJ discussed Haider’s credi- in his back and struck Haider officer bility. nothing de- He found in Haider’s gun three times shoulder deception meanor indicate and de- any- around him not to “come us warned testimony as “fairly scribed the detailed police at also more.” J.A. 165-66. and, ... part for the most J.A. plausible.” weeks, during for two detained his father However, at 80. he found Haider’s failure clothes, time removed his beat which appli- in his to include the incidents severely, drop that he him and demanded “troubling.” cation J.A. 81. The IJ family had take his the suit. Haider’s really persuaded” by Haider’s was “not put him on hospital to a mental father that he had too embar- explanation been addition, tor- medication. information, Haid- rassed to include this mother, visiting over mented Haider’s her testify er to the events without seemed threatening to take fifty times Haider. difficulty. noted 81. The IJ also *5 1999, police In officers visited Haider’s corroborating the absence statements asked, son, your family mother “where from members or a doctor and found it that working reported he “curious” Haider haven’t seen him. Is for ” police or 1999. contacts with the GIA after GIA, thought the terrorists? We so.... He concluded that the sum of J.A. 82. at 173. J.A. respon- these concerns “detracts from the Algeria, his in During years final Haider ... credibility meaning dent’s that to avoid po- moved between relatives give weight respon- Court will less to the He France in illegally lice. entered testimony.” did dent’s 83. The IJ 2001, arriving United States say that he believed of the parts some just September 11th. before attacks testimony not others. but January 2007, mother visited Third, ineligible the IJ found Haider told him the United States. She withholding of removal the INA. He under him in police had asked about 2002 and police suspected noted that the Haider of active in that the GIA was still their area. being terrorists, connected to he did not decide whether Haider had established Rulings B. Administrative and Peti- Instead, a protected ground. the IJ held tion for Review that the GIA’s recruitment efforts did not past persecution constitute and that orally. The IJ delivered his decision police, light single of the five-hour de- First, asylum he claim found Haider’s tention the fact never that Haider asylum applicant time-barred. An must attention, only needed ha- medical had convincing clear evidence that show rassed no like- him. The IJ further found year filed within in the he one arrival freedom, lihood of future threat to life or States, a that can be period United extend- emphasizing that Haider no con- reported extraordinary due to ed circumstances. police tact with 1999 to the GIA from (D). 1158(a)(2)(B), Haider filed U.S.C. application his almost sixteen mоnths after entering country. The IJ found that Finally, the IJ denied relief under light CAT, posWSeptember-llth his fear finding that abuse was government suspicion of Muslim men ex- torture and that Haider had not shown that his treatment would Preliminary be worse the B. Two Issues future. arguing Before the merits of eligibili- his ty for withholding, Haider raises two er- adopted
The BIA and affirmed the IJ’s rors that (1) he believes require remand: August decision on 2008. It agreed that the BIA’s application of the wrong stan- asylum application was time-barred. dard of in affirming review the IJ’s deci- The BIA stated that “the IJ did not make (2) sion, and the IJ’s failure to make an a specific credibility finding” but commit- explicit credibility determination. “finding ted “no clear error” in that the respondent adequately failed to meet his The BIA must review an IJ’s factual proof’ burden of under the INA. J.A. at 2. findings for clear legal error and conclu The BIA affirmed reasoning the IJ’s sions de novo. 8 1003.1(d)(3); C.F.R. perse- abuse did not amount to of A-S-B-, Matter 24 I. & N. Dec (BIA 2008). cution and added Haider was not tar- points Haider parts two geted for religious beliefs or BIA’s appear to apply an opinion, “imputed or improperly otherwise.” J.A. at 3. First, deferential standard. stated, The BIA also affirmed the BIA the denial of the find no clear “[w]e error part CAT claim because on the Immigration the abuse did not meet Judge in finding the definition of torture. that the timely respondent failed to ade petition quately filed a meet for review. his burden” This court under the INA. Second, J.A. at 2. stayed appeared his removal on October the BIA apply the standard, substantial-evidence *6 observing that “the record compel does not II. ANALYSIS the conclusion that reasonably he feared A. Standard of Review the GIA persecute would him because of a political opinion.” J.A. at 3. These state adopted Because the BIA and added to ments do not reflect proper the standard decision, the IJ’s we review the of review for mixed questions of law and the IJ and the BIA’s supplemental com- fact. however, the rest of the opinion, Holder, ments. Feng See Bi Liu v. 560 the BIA wrote in decidedly de novo terms. Cir.2009). F.3d Haider does held, “[b]y It respondent’s the own admis challenge rejection the asylum his sion, the actions of the GIA and the claim, as this court cannot review factual were not on account of his religious beliefs findings timeliness. 8 U.S.C. or political opinion, imputed or other 1158(a)(3); Almuhtaseb v. wise .... We that respondent find the has (6th Cir.2006). Thus, F.3d the not established that alleged either petition is limited to the denial of withhold- persecutors acted on account of his opin ing of removal under the INA and the ion, imputed or otherwise.” J.A. at 3. The CAT, relief that would be available regard- BIA should have taken more care with its less of filing date. We review the IJ’s opinion and avoided the improper state findings and BIA’s for substantial evidence ments, but it denied relief based on its own may only reverse if the decision was view of the evidence. “manifestly contrary law,” 8 U.S.C. 1252(b)(4)(C), is, if Next, the evidence objects Haider that the IJ failed оnly supports conclusion,
“not a contrary an unambiguous make credibility deter- it,” INS, compels indeed hand, Ouda v. 324 mination. On the one the IJ found (6th Cir.2003) (internal F.3d quo- suggested Haider’s demeanor honesty omitted). tation marks testimony and that his was detailed and having to re- hand, necessarily prevent us from he the other On mostly plausible.3 on sub- past-persecution question solve the that Haider failed “troubling” found it review, might the BIA deter- sequent since in his applica- incidents include might mine that Haider credible corroborating docu- supply and to tion on opposite reach conclusion based The IJ resolved ments. J.A. time, At the same insubstantial evidence. respondent’s testi- weight to “give less credibility ordering and then assuming statement does but this mony,” J.A. usurps removal the role of withholding of question of what the the crucial not answer Fed.Reg. the IJ as factfinder. See 67 occurred. and did not believe believed IJ 54,878, 54,890 (“Immigration judges are it, “did make put BIA the IJ As the credibility positioned better to discern finding in this case.” credibility specific witnesses before assess the facts at 2. ”). them .... argues that the case must be credibility for an deter- explicit remanded adopt following therefore We mination, meaningful as he contends BIA an IJ or the ex procedure: when impossible on the current record. review is presses suspicion applicant’s about an lack urges us to follow the make an credibility but the BIA fails to opinion in unpublished of our language explicit adverse determination instead Maklaj Mukasey, basis, we will denies relief on some other (6th Cir.2009), which stated when credible in assume that the credibility to “make a clear adverse IJ fails grounds order review the actual determination,” “clearly if he doubt- even ruling. analyt procedure This tracks testimony, court applicant’s ed” path by the IJ BIA. If ical taken or the we testimony true.” Id. at “accept[s that] denying conclude that the stated basis for Both are suggestions n. 4. ill-fitted supported by relief was substantial evi we here. In this the situatiоn confront dence, If review is further foreclosed. case, doubt about clearly expressed result, the IJ how compels opposite evidence Lack applicant’s ever, version of events. credibility de will remand for a *7 however, not credibility, See, the basis e.g., of termination. Cordon-Garcia v. relief, (9th Cir.2000) INS, 985, or for BIA’s for his denial the 204 F.3d 993-94 of the Both the IJ and appeal. dismissal the (holding that demonstrated that, assuming even persecution the BIA instead held and a fear of past well-founded true, allegations remanding did future for a persecution were 2- BIA past persecution. credibility finding J.A. at had not amount because concerns).4 ruling on the An remand would not avoided IJ’s 83-84. immediate (4th Cir.2007), making BIA read as 489 F.3d con- 3. The the IJ's There, approach. exactly opposite finding. sonant with our court It wrote that the ruling IJ’s adverse on the issue vagueness detail and reversed the IJ "discussed lack of past persecution and therefore remanded for respondent’s testimony compared in the credibility id. at determination. See application J.A. at 2. The for relief.” BIA (Shedd, J., concurring). instead "Al- also referred "Albania” point. geria” case, at one at 3. Attorney Gener- In the second Toure v. al, (3d Cir.2006), F.3d 310 the court "where the BIA cites three cases from other remarked that an IJ or fails 4. The finding, position explicit credibility jurisdictions support of its to make an we credibility proceed applicant’s testimony will if the must assumed remand as avoided, credible,” citing support. requires us were cases in none of which to rethink three cases, first, reasoning. Chen Lin-Jian v. Id. at 326. In two those IJ our The approach perfectly This consistent testimony of Haider’s were and were not Ventura, Maklaj. credible. See case, INS with the facts of In that 537 U.S. 16-17, 123 S.Ct. panel accepted petitioner’s L.Ed.2d 272 testimony (2002) (holding that the courts of appeals upheld as true but the BIA’s denial of should remand to the BIA for determina- asylum withholding based first on his instance).6 tion of factuаl issues in the first produce failure to evidence corroborating past persecution his claim of and second on Withholding C. of Removal Under the a finding changed country conditions INA any defeated fear of future persecution. 241(b)(3) § Under INA, of the gov at 264.5 The assumption of ernment may not remove an alien to a credibility appropriate in spite of the country if prove he can it is more IJ’s skepticism applicant’s testimony likely than not that his “life or freedom credibility because was not necessary to would be threatened that country be the case’s outcome. race, cause of the alien’s religion, nationali Following procedure above, laid out ty, membership in a particular social we shall also assume Haider’s credibility group, opinion.” 8 U.S.C. question past address the persecu- 1231(b)(3)(A). If the applicant estab Because, tion. explain below, as we we past persecution, lishes presumed it is finding conclude that thе that Haider had his life or freedom would be threatened in persecuted supported been was not 208.16(b)(1)(i). the future. 8 C.F.R. evidence, substantial we must remand to That presumption can be rebutted if an IJ the BIA for determination of which parts finds that there has been a fundamental made appli- unfavorable remarks explicit about the credibility adverse finding and denied credibility, cant's but the BIA denied relief relief for lack of corroborative evidence. Id. making without finding. clear adverse accepted 1111-12. The petition- court applied exactly true, approach courts testimony that we er's reversed the adminis- adopt assuming, determining, here: but not trative decision based on its rule that “the credibility in order to reach may the alternative require independent BIA corrobora- substantive basis on which the BIA denied tive asylum evidence from an applicant who relief, remanding and then credibility credibly,” for a granted testifies petition determination proрer- where relief could not withholding of removal. Id. at ly be denied on that alternative basis. See 1115. The Katana court converted a mixed 231, 235, Kayembe Ashcroft, 334 F.3d credibility finding 237- positive into one and (3d Cir.2003); Gen., Att’y Zhen Hua Li v. issued relief on its basis. Were we to face 157, 163-64, (3d Cir.2005). case, similar approach adopt today *8 The third case involved IJ require and BIA decisions would a remand to the BIA on credi- that neither a bility. made clear determination nor any negative contained comments about the Gonzales, Maklaj Gilaj cited petitioner's credibility; v. F.3d 275 court assumed (6th Cir.2005), support in credibility assumption of its Lusingo and ordered relief. v. however, 193, 5, credibility. Gilaj, (3d this court ac- 197 n. Cir.2005). cepted petitioners' testimony approach as This is an true be- that we like- cause the IJ had found them to be credible. wise endorse: when neither the IJ nor the Gilaj See id. at 285-86. any was not a case in petition- BIA intimates concern a about which the credibility IJ failed to make a credibility, deter- er’s it is a rеasonable for review- mination. ing they petition- court to infer that found the er credible. course, by government, In the third case cited 6. As in usual the BIA’s or IJ’s INS, (9th Cir.2000),
Kataria v.
Ashcroft,
Cir.
sentence,
preceding
the BIA concluded
2004)
order)
(unpublished
(remanding be
that “the actions of the ...
were not
cause, although
political
... political opinion,
on
of his
im-
account
active,
ly
apparently
BIA
did not
“[t]he
puted
otherwise.”
statement
This
rais-
imputed
consider
question,
suspected
es the
does
affiliation
ground”);
also
protected
see
Pascual
anti-government
group
with an
terrorist
Mukasey, 514
486-87
F.3d
Cir.
imputed political opinion?
constitute
2007) (noting that most circuit courts have
*9
that this
from
and
approved
approach,
court did
Prior cases
this circuit
our
Abdulnoor,
suggest
“yes.”7
sister
Supreme
so in
and that
courts
the answer
dissent,
contrast,
"no,”
per-
by
required,
be
avoid
7. The
answers
science should not
to
holding
light
"refuge
(quoting
that
In re
of a BIA decision
secution.” Dissent
290
Acos-
ta,
(BIA 1985),
Dec.
to
who are either unable
19 I. & N.
restricted
individuals
overruled,
actions,
grounds by
Mogharra-
by
own
as a
con-
on other
In re
their
or
matter of
Abdulnoor,
the Second Circuit held that an applicant
this court considered the
arrested, detained,
who had been
interro-
Iraqi weapons-depot
of a former
petition
gated,
sexually
by
assaulted
Sri Lan-
sentenced to death
who had been
guard
police
kan
their suspicion
based on
that
missing on his watch
weapons were
after
she was
the Tamil Tigеrs
affiliated with
possession of a
were found in the
had suffered
on imputed polit-
abuse based
coup against
a
Saddam
group planning
opinion.
ical
Id. at 517-18.
ap
at 595. The
Fed.Appx.
Hussein. 107
persecuted
would be
feared that he
plicant
These
cases and
evidence Haider
he had
in
suspicion
on
been
based
presented compel the conclusion that the
This court
plot.
Id.
found
volved
police abused Haider because of an imput-
claim
asylum
that he had an
based on
political
ed
Like
opinion.
Iraqi coup-
Id.8 In
imputed political opinion.
Kumar
terrorists,
plotters, Kashmiri
and the Tam-
(9th
Cir.2006),
444 F.3d
v.
Tigers,
il
the GIA is militant group that
applicant
that an
the Ninth Circuit held
seeks
the government.
overthrow
imputed-political-opin
had established the
There is no lack of
police
evidence
ion element when Kashmiri
had de
in fact
by
were motivated
Haider’s sus-
him
physically
abused
on the
tained
pected
GIA,
connection to the
as they re-
with Muslim ter
belief
he associated
peatedly
called him terrorist and asked
1054;
Singh
see also
rorists.
Id. at
they
about the group
stopped
when
him.
(9th
Ilchert,
63 F.3d
1508-09
Cir. The BIA
causal finding.
made this
Ac-
1995) (finding
political opinion
imputed
cordingly, the
conclusion
BIA’s
that Haid-
on
belief that
police’s
appli
based
Indian
er
protected
did not
ground
establish
militants),
cant was affiliated with Sikh
unsupported by
substantial evidence.
on other
superseded by
grounds.
compelled
statute
We are
to conclude that Haider
Similarly,
ground
United
Attor
established a protected
Uwais v.
States
based on
(2d
General,
Cir.2007),
ney
imputed political
opinion.9
bi,
(BIA 1987)) (internal
ists);
(6th
Ashcroft,
Fed.Appx.
Lam v.
19 I. & N. Dec. 439
omitted).
Cir.2004)
quotation
opinion)
The dissent em-
(unpublished
(denying
marks
re
view,
phasizes
evidence,
aimed
that the GIA
to achieve its
applicant
based on lack
violence,
political goals through
through
“not
persecution
who feared
the Mauritanian
political
pro-
kind we
discourse
should
government due to its mistaken belief that he
"
tect ‘as a matter of conscience.’
Id. This
part
opposition paramilitary
had been
of an
sound,
reasoning,
surely
even
does not ex-
if
group);
Ashcroft,
Dabo v.
actually
political opin-
tend from
held
cases of
order)
Cir.2004) (unpublished
(denying
political opinion,
imputed
ion to cases of
prepared
grant
review when IJ
been
had
applicants
which
have
chosen to believe
returning
Senegal
relief to alien who feared
anything
perse-
at all. An individual who was
government
because the
believed he had
cuted for a
that he never
joined
separatists
ultimately
but IJ
denied
actually held
be barred from
should not
relief
relief based on
falsification of
alien’s
docu
opinion.
because we do not like that
ments).
confronted
Sixth Circuit has
similar
might
argued
It
there
is a difference
imputed-political-opinion claims in a number
persecution
imputed illegitimate
between
for
of cases in
have denied relief
which wе
on
persecution
imputed opinion
conduct
for
bases other than
to establish a causal
failure
is,
See,
membership
political group.
in a
That
protected ground.
e.g., Singh
nexus to
(6th Cir.2005)
police persecuted
they
if the
for what
Ashcroft,
(deny-
2.
lished
harm need not be life-
opinion), but
not define “perse
The
does
INA
persecution,
constitute
De
threatening to
INS,
146 F.3d
Mikhailevitch
cution.”
INS,
Fed.Appx.
Leon v.
(6th Cir.1998),
has
court
Cir.2004)
opinion).
In some
(unpublished
meaning
past
of its
mapped
contours
cases,
physical
need
prove
an
not
than a
“requires more
cases. Persecution
See,
Ouda,
e.g.,
harm
F.3d at
at all.
of verbal harassment
few isolated incidents
(woman
whо never herself had been
intimidation, unaccompanied by any
or
persecution based on
beaten established
harm,
infliction
punishment,
physical
Typ
and
deprivation
expulsion).
economic
liberty.”
at
deprivation of
Id.
that
significant
ically, though,
“[t]ypes
of actions
physical
may might
fact
harm
the line from harassment
to
The
of some
cross
390.
arrest,
detention,
in-
include:
sufficient,
persecution
Kane
group,”
protected
to a
associated with a Muslim terrorist
nexus
there is
causal
compels
ground.
[he]
We
a distinction would
"the
us to rule that
has
believe such
record
above,
imput-
persecution
be in tension with the cases described
suffered
on the basis of an
petitioners
Similarly,
political opinion.”
that
who
ed
Id.
in which courts found
at 1054.
thought
engaged in
sidesteps
have
criminal
were
to
treatment of Uwais
dissent’s
case,
imputed political opin-
holding
acts had established
that the
core
of that
which was
Abdulnoor,
arrested,
detained,
at 595
petitiоner
interroga-
ion. See
"was
helped coup-
ted,
(persecutors
petitioner
believed
severely questioned
on account
Kumar,
plotters
weapons);
444 F.3d at
obtain
imputed
opinion
political
on her sus-
based
(police
petitioner
they
because
arrested
pected
Tiger
with the
Tamil
affiliation
armed
end,
believed he
"involved in terrorist activi-
was
at
tenants.” 478 F.3d
517.
In the
Uwais,
ties”);
(police
at 515
accused
disagrees
simply
courts and
dissent
with these
housing
petitioner
knowingly
Tigers).
Tamil
says
Dissent at
as much.
distinguish
attempt
The dissent’s
to
these
conduct-opinion
distinction
Even if
unpersuasive.
is
The
to
cases
dissent tries
cases,
appropriate
were
in some
it has no
differently, suggesting
read Abdulnoor
that “it
application
explicitly
here. The
found
BIA
likely
political
quite
any
oppo-
that
form
police
that the
abused Haider "because
could
in the
sition
have resulted
sentence
he was
with the
believed that
associated
under,
death
himself
Abdulnoor found
i.e.,
imputed
of his
member-
because
GIA”—
certainly does not tell us
the court
different-
organization.
ship
political
with a
suggestion
ly.”
Dissent
291. This
is mere
The
that the
viewed the
dissent doubts
speculation
and was
basis of
political organization,
GIA
their
as a
based on
clearly
opinion.
court's
The court
held that
op-
reference to Haider as
"terrorist” as
petitioner
persecuted
politi-
based
was
on
posed
a "dissident” or an "activist.” The
opinion imputed
cal
to him because of con-
police's
the word
is a thin
use of
"terrorist”
group
duct that aided a
dedicated to the vio-
reed
has
indeed on which
hold that Haider
lent overthrow of the
same
—the
protected ground.
rec-
not established a
here.
sort of circumstances involved
The dis-
ord
made clear that the GIA had
below
sent’s comment that Kumar involved "wheth-
(State
political
Depart-
agenda.
J.A. at 255
petitioner’s
political
imputed
er
explaining
group
nexus,
report
ment
provide a
and does not
sufficient
gov-
campaigns against
"launched terrorist
opinion/method
at all concern the
distinction”
figures
protest
ernment
institutions
misleading.
21. The
Dissent at
IJ in that
parties”).
banning
The word
of the Islamist
petitioner
case held that the
had not estab-
valence,
carry
"terrorist” can
ground
protected
a nexus
lished
to a
because
that the
intended
have no indication
had not
the IJ believed Kumar
established
Kumar,
acts
and not also
it
refer to violent
alone
protected ground.
287 terrogation, prosecution, imprisonment, butt,” him, il and taunted “how you do like searches, legal property, confiscation of summer, that?” J.A. at 145. That offiсers surveillance, beatings, or torture.” Zaca removed during his clothes an interroga- Gonzales, 458, Fed.Appx. rias v. 462 tion at the police station. during And (6th Cir.2007) (inter (unpublished opinion) February/March incident, again in omitted). quotation nal An appli marks street, an pulled officer down Haider’s cant must show that she “specifically pants and prodded him in the buttocks targeted” “merely victim of hands, “first ... with his ... then with the Gilaj, indiscriminate mistreatment.” 408 big gun.” J.A. at episode, 153. After each F.3d at 285. they threatened him with more of the same. (and court)
The IJ must evalu past persecution setting ate based on Even “the overall aside the incidents that applicant’s context of the situation.” could be Id. viewed as retaliation for filing is, lawsuit, That the IJ must view the evidence in we conclude that Haider aggregate, as “a experienced collection of harmful most of the actions listed in events, though they may even qualify Zacarías. These abuses cannot be charac individually persecution, may [that] tak terized as isolated incidents or mere verbal together en persecution.” constitute harassment, Ste and the questions officers’ Gonzales, naj 429, 433 about the GIA make they specif clear that (6th Cir.2007) (unpublished opinion); see ically targeted him. The cases by cited also Poradisova v. 420 F.3d the government by and relied on the BIA (2d Cir.2005); I-Z-, 79-80 In re O-Z & distinguishable. are In Thanasi v. Gon (BIA 1998). I. & N. Dec. In review zales, 228 Fed.Appx. Cir. ing finding perse Haider was not 2007) (unpublished opinion), the applicant in Algeria, cuted this court takes his alle only single punch ribs, suffered “a to the credible, gations as as discussed above. face, slap to the admittedly mistaken arrest, momentary jostling and verbal We hold that the evidence compels harassment” —lower-level abuse to which a finding persecution. Haider testified experiences cannot be re searched, to being repeatedly stopped, Kane, duced. In allegations were seri accused of being a GIA terrorist police. they included multiple beatings and ous— They property, confiscated his stealing detentions, one for two weeks—but clothes from his suitcases of merchandise. panel emphasized that the applicant had police physically him, assaulted once thrived academically and professionally punching him four times in the ear and finding credited the IJ’s changed striking another time him gun with a three conditions in the country origin. times in his back and shoulder. On one Fed.Appx. at Finally, 183-84. in Mo occasion, police detained Haider for five Keisler, hammed v. 371-72 hours, interrogated him alleged about ter (6th Cir.2007), the sum total of the abuse connections, rorist and struck him re attributable to the government was a peatedly in the back a gun. Most three-day detention, a slap, and a kick— disturbingly, separate three times Haider again, conduct much less than serious suffered sexual abuse and humiliation at involved here. police, the hands of the public twice in places. incident, In May conclusion, after reaching contrary the IJ stoрping street, him on pulled officers analyze failed to all the facts and relevant pants, down his put gun “up consider them in the aggregate. [his] After *12 288 classmates”); by bleeding Kholyavskiy in undress his the internal
suggesting that (7th by 555, Mukasey, have caused could been v. 540 F.3d Cir. Haider’s ear 2008) flu, surprise expressed (citing IJ emphasizing the the cases the seri occasional sustained the “only of one’s being expose ousness forced with of his as a result encounters bruise” parts). make private These omissions 82, at 84. The IJ based police. the grasp the aggre clear that failed to the IJ inju- finding fact that Haider’s his on the significance gate of encounters medical treatment required ries never police. the hold that the IJ’s We time for a “only that he detained one was characterization of the abuse as mere at But the IJ of hours.” Id. 84. total five supported by harassment was not substan analysis in his section to discuss neglected tial evidence.11 searches, the theft repeated stops the above, discussed our As conclusion merchandise, variety or the of threats. of true, allegations, past the if amount the IJ failed to consider egregiously, Most us to to the persecution requires remand humiliation significance the of the sexual a proper credibility BIA for determination. three This that occurred on occasions. If, remand, upon the BIA credits Haider’s of previously court has noted that abuse here, testimony about the events reviewed all In this nature can make the difference. a compels finding past the evidence facts, Stenaj, panel distinguished its persecution and Haider entitled to a persecution, did from which not amount presumption that his life freedom would did, in on the Gilaj, part those which in threatened upon Algeria. removal mo- applicant Gilaj that the basis 208.16(b)(1)(i). The BIA C.F.R. should Fed.Appx. persecutors. lested her I-Z-, consider 434;10 government then whether the can In re 22 I. at see also O-Z & id., so, presumption, rebut if that Jewish (holding & N. Dec. 25-26 persecuted prove na- Hаider can boy was on account of his whether likelihood freedom, threat tionality “suffering] based on ex- future to life or id. part 208.16(b)(2).12 forced to treme humiliation when he was See, Gilaj Importantly, applicant proof. e.g., did not met 10. has not his burden of Holder, 971, 975, spell exactly happened Yinggui out what to her. She Lin 565 F.3d home, during Cir.2009) incredible, (6th testified that search of her (applicant not woman,” provoke “started to as [her] asylum corroborating denied evi- for lack which a sexual the court characterized as dence); Ashcroft, 398 Dorosh v. F.3d molestation, only possibly an assault or Cir.2004) (6th (same); Shkabari v. Thus, attempted F.3d one. 408 (relief Cir.2005) 331-32 Gilaj distinguished inten- cannot be based on credibility denied for lack of and lack of cor- sity of the violation. case, roboration). In this IJ mentioned corroborating part lack of evidence as affirmance, As an additional basis for discussion, credibility indepen- as expression IJ's con- raises the dent basis for Because denial. the IJ did presented cern that Haider no statements persecution his rest decision on the lack of family his from or doctor to corroborate his corroboration, it is no bar to reversal. cases, allegations. In some the IJ uses corroborating support lack of evidence inquiry 12.It is in this that the can evalu- BIA See, credibility Rong e.g., Xue determination. significance family’s ate the of Haider’s con- Holder, Zheng 573-74 Algeria and tinued residence in the fact that (6th Cir.2009) (appli- (unpublished opinion) reported during he harassment his provide corroborating cant's evi- failure years country. final The abuse Haider supports dence adverse cred- "further IJ’s others, ibility experienced through to have con- finding”). IJ invokes it claims persecution. separate past argument basis to find that the stitutes Withholding namely, D. of Removal Under the suspected affiliation with the
CAT GIA. assumption Our of Haider’s credibili- however, ty, just that —an assumption. Torture, Against Under Convention *13 As the expressed IJ some cоncern about must withheld if “it is more removal reliability testimony, of his the case likely applicant] than not that [the would must be returned BIA permit to the to proposed be tortured if removed to the factfinding along these lines. We there- country removal.” 8 C.F.R. fore petition GRANT the as to withholding 208.16(c)(2). § protected-ground No nex- of removal under the INA and REMAND Almuhtaseb, required. us is 453 F.3d at proceedings consistent with opin- this 751. Torture “an extreme form of cruel ion. We also conclude that neither the and inhuman treatment.” 8 C.F.R. Algerian actions of the 1208.18(a)(2). police nor those of Specifically, “any it is act the GIA amounted to torture. According- by pain suffering, which severe or whether ly, we DENY mental, petition with physical intentionally respect or inflict- to information, withholding of ed” to extract intimi- removal under the punish, CAT. date, coerce, discriminate, or otherwise pain suffering by
“when such or is inflicted BOGGS, Circuit Judge, dissenting. instigation or at the of or with the consent I concur majority’s with the well-rea- acquiescence public of a official or other soned discussion of “preliminary is- person acting in an official capacity.” Id. sues” by petitioner raised in this case. 1208.18(a)(1). that, I believe despite the BIA’s imprecise The IJ’s denial of relief under the proper articulation of the standard of re- supported by CAT was substantial evi view, ultimately it applied de novo review police dence. The abuse was not so severe Moreover, to the evidence before it. I as to constitute torture. See Shkulaku- believe that it good makes sense this 499, 501, Purballori v. Mukasey, 514 F.3d ease to assume petitioner’s testimony (6th Cir.2007) (multiple beatings, re credible, to have been because none of the sulting in fainting finger, and a broken petitioner’s allegations respect to torture). GIA, meanwhile, were not undergirding facts dispositive issues physical Haider, did not inflict harm on appear to have by been discounted the IJ and he has not shown that their intimi or the BIA. dation him caused extrеme mental suffer ing. Nor prove did Haider that he could however, I separately, write express expect upon worse treatment his return. my disagreement majority’s with the belief that it is compelled to conclude that the
III. CONCLUSION Algerian police’s actions in this case were Assuming testimony motivated imputed be cred- Mohamed Haider’s ible, compels political opinions. we hold that the evidence majority Whereas the finding that police abused Haider would “suspected hold that affiliation with on imputed political opinion, based an anti-government group terrorist consti- personally by moving did not abuse him from time frame between relatives’ departure may go late 1997 until his in 2000 homes. We note that the statement changed circumstances and the likelihood Haider claims that made to his mother issues, son, adjudicating of future harm. your those in 1999—’"where is we haven't seen him,” the BIA should also consider Haider's testi- J.A. at 173—is consistent with his ex- mony police during planation. that hе avoided the Perhaps, if one opinion,” I find “characteristic?” views political imputed tute[s] tendency to violence as a unsupportable. to resort such a conclusion “characteristic,” weapon as a in no give “deference required We are tendency event be described could such interpretation of the reasonable BIA’s petitioner change, as one that a could not it Lin regulations” enforces. statutes and change. required or should not be As (6th Cir.2009) Holder, indicates, record in this case the GIA Res. Coun (citing v. Natural Chevron Def. splinter groups and its were involved 843-44, cil, 467 U.S. S.Ct. campaigns active targeted terrorist (1984)). the BIA does L.Ed.2d 694 While *14 civilians; 1990s, they during part were to the not to have addressed itself appear of a wave of terrorism that took the lives hand, it is to precise at instructive question 100,000 Algerians. more of than The ... “persecution note held that that it has GIA’s methods were calculated achieve clearly contеmplates that harm or suffer through political its aims discourse in ing upon be inflicted individual must a protect the kind we should “as matter of possessing order him for a belief punish conscience,” through but indiscriminate vi- persecutor a or characteristic seeks designed olence threats of violence Acosta, 19 I. In re & N. Dec. overcome.” cause and fear widespread chaos that (BIA 1985), other overruled on might permit bully way their into them Mogharrabi, I. N. grounds by In re 19 & power. 1987). (BIA Dec. Such or a “belief clearly distinguishable characteristic” is Algerian police, The actions of the committing aiding from or the action course, may have no better in this been mayhem. acts acts of murder and Those case than those of their enemies. If Mr. automatically do become expressions believed, testimony tois be their they “political when commit opinion” are him with humiliating attacks on little or no by political
ted groups with aims. evidence of to the his connеction GIA de- may serve to be condemned. While Furthermore, one “refuge is to in- restricted sympathize plight, with Mr. Haider’s how- by dividuals who are either unable their ever, arbitrary by thuggish- victimization actions, own or as a matter of conscience is decidedly protected ground, ness not a required, persecu- should not to avoid there evidence Acosta, simply no that the tion.” I. 19 & N. Dec. at 234. of his Thus, imput- abused him on account refuge provides the INA for those political opposed ed opinion, as to their race, persecuted religion, on account a belief that affiliated with group he was nationality, membership particular in a so- regardless politics engaged of its opinion cial group, political only or to the that — — in in a quest the murder of civilians that these or characteristics extent beliefs power. are of the beyond the control are that we a of the kind believe “as majority anticipates argument that petitionеr matter of conscience” provide in its footnote but does not ought required to to avoid change not be convincing claiming that reply. a dis
persecution. tinction between and con law,
Is a duct in with case it group affiliation with terrorist “would be tension” reasonably points unpublished cannot contend decision of this “belief?” One one (Abdulnoor Ashcroft, so. name im- circuit v. 107 Fed. group, A terrorist (6th Cir.2004)), a decision plies, by political opin- Appx. not defined (Kumar by ions it a Ninth espouses it its methods. Is Circuit alleged Cir.2006)), just decision of not her involvement with the and a F.3d (Uwais Tigers as the Tamil im- group United known Second Circuit —an (2d General, portant because the court re- Attorney point States Cir.2007)). Abdulnoor, finding that viewing persecution in a BIA The decision however, partly even gives no whatsoever had not been motivated indication Uwais, perse- in petitioner protected ground, the case F.3d methods; Iraqi and the that case thus no for his while court had cuted opposition argument him occasion to discuss the core linked to an he was here. weapons because for which group group’s up ended
responsible majority Curiously, concludes hands, Abdulnoor there is no evidence that “[ejven if conduct-opinion distinction the same not have been under would cases, in some appropriate were it has engaged if the group threat had been application explicitly here. The BIA found Abdulnoor, 107 resistance. See peaceful police abused ‘because 595. Given the situation that he was believed associated with *15 Hussein, quite it is under Saddam Iraq i.e., because of imputed his GIA’— any opposition form likely political of a membership political organization.” with of have resulted the sentence could however; begs question, This simply under, and Abdulnoor found himself death whether association with the GIA certainly court us differ- does not tell was, police’s eyes, an association Thus, fairly Abdulnoor cannot ently. organization political precisely with a а peti- to bar a distinction read between the issue under discussion. I that a find To the opinions and his conduct. tioner’s evidence in pro- this case review may that Kumar or be read extent Uwais question, duces doubt as to that sincere them, differently, I disagree to hold given Algerian police that the are de- I though support pro- note that the calling a scribed as Haider “dissident” majority shaky for the at best. The vide rather, “activist,” but majority as the portion of Kumar addresses itself to cited notes, ushering a “terrorist.”1 Haider question petitioner’s whether door, through golden majority sets political opinion was imputed sufficient dangerous precedent. nexus, at all con- provide and does not I Accordingly, respectfully dissent.2 opinion/method Ku- cern distinction. mar, 444 F.3d at involved 1053-54. Uwais in large who petitioner persecuted ethnicity because of her Tamil
part majority political correct that Of course terrorism can be in aid of 1. While is doubtless usually valence,” goals- is. When Josef Stalin mas- "carry political a term can such —-it terminded robberies that left dozens bank Majority Opinion at 286 n. there is no dead, so to fund Lenin's Bol- he did nascent very in this case that it did. evidence Montefiore, Party. Sebag See shevik Simon majority Department report by the State cited 2008). Young (Vintage 3-16 Stalin Books cam that the GIA "launched terrorist states government sought When the Russian against government figures and paigns insti crimes, justice bring for those him to must banning protest Islamist tutions so on believe it did account added). (emphases There is parties.” Ibid. opinions, than rather because he was a mur- suggestion Haider was in the record that derer and a thief? singled "protested] out because the GIA banning parties” rather than of the Islamist believe that the evidence does not Because I campaigns.” compel the conclusion because it "launched terrorist America, STATES UNITED
Plaintiff-Appellee, JOHNSTON,
Charles William
Defendant-Appellant.
No. 06-6397. Appeals, Court
United States Circuit.
Sixth 13, 2010.
Submitted: Jan. Feb. and Filed:
Decided *16 Jr., Gulley, L. Gul-
ON BRIEF: Gerald Knoxville, Tennessee, PLLC, ley Oldham "persecution,” I protected ground, I those abuses constituted abused on account of express opinion on that matter. question whether reach the would not