Paye v. Garland ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1426
PRINCE BELO PAYE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Gelpí and Rikelman, Circuit Judges.
SangYeob Kim, with whom Gilles Bissonnette, Margaret Moran,
American Civil Liberties Union of New Hampshire, and New Hampshire
Legal Assistance were on brief, for petitioner.
Andrew N. O'Malley, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Brian M. Boynton, Principal
Deputy Assistant Attorney General, Civil Division, and Cindy S.
Ferrier, Assistant Director, Office of Immigration Litigation,
were on brief, for respondent.
Daniel V. Ward, Marianne Staniunas, Abigail Alfaro, Michelle
Marie Mlacker, Colleen Roberts, and Ropes & Gray LLP were on brief
for Immigration Law Professors and Former Immigration Judges and
Board of Immigration Appeals Members, amici curiae.
July 17, 2024
GELPÍ, Circuit Judge. Petitioner Prince Belo Paye
("Paye") seeks review of a final order of removal issued by the
Board of Immigration Appeals ("BIA"). The BIA upheld the
Immigration Judge's ("IJ") conclusion that Paye did not
demonstrate past persecution necessary for relief under the
withholding-of-removal statute, 8 U.S.C. § 1231. Paye appeals,
raising a litany of alleged errors.
We agree with him in part. The BIA and IJ (collectively,
"the agency") did not address whether Paye's escape from Liberia
because of systematic ethnic cleansing and genocide of the Krahn
people during the Liberian civil war constituted past persecution.
This hindered our ability to meaningfully review the agency's
denial of withholding of removal. Accordingly, we vacate and
remand.
I. BACKGROUND1
A. Factual Background
A civil war raged in Liberia throughout the 1990s. It
began after President Samuel Doe's rise to power. Doe was a member
of the Krahn, an ethnic group native to Liberia and Côte d'Ivoire,
and he established a regime notorious for its corruption and
1 We derive the following facts from the administrative
record, which includes Paye's immigration-court testimony (which
the IJ found credible), the record before the BIA and IJ, and their
decisions. See Espinoza-Ochoa v. Garland, 89 F.4th 222, 227 n.1
(1st Cir. 2023).
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brutality. Krahns unaffiliated with Doe were perceived as his
supporters and accused of being culpable for his atrocities in
Liberia, including targeting "rival" ethnicities for arrest,
torture, and execution. Doe's brutality sparked rebellion, and
Charles Taylor formed a band of rebels -- the National Patriotic
Front of Liberia ("NPFL") -- to oppose Doe.
But the NPFL did not limit itself to combatting Doe.
Instead, it targeted innocent Krahns at Taylor's behest. Indeed,
one of Taylor's top lieutenants purportedly used the catchphrase,
"The only good Krahn man is a dead Krahn man." Taylor and the
NPFL thus caused the mass exodus of Liberians, mostly Krahns, in
the wake of widespread killing and torture. And during that
period, NPFL commander Prince Johnson broke off and formed the
Independent National Patriotic Front of Liberia ("INPFL"), another
rebel group, which committed human-rights abuses alongside the
NPFL. By October of 1990, roughly two-thirds of Liberia's 125,000
native Krahns had fled the country to escape the NPFL and INPFL.
The INPFL captured and executed Doe on September 9,
1990. And so, the war and systematic extermination of Krahns
continued. Soldiers affiliated with Doe fled to neighboring Sierra
Leone, and, after reorganizing with Sierra Leone's backing,
clashed with NPFL invaders in March 1991. NPFL forces continued
their atrocities on the border, including executing Krahn
civilians.
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Taylor became president of Liberia in 1997, while
human-rights groups noted that ethnic cleansing and genocide for
Krahns continued in the years leading up to the end of the civil
war in 2003. By that time, Taylor faced resistance from various
groups in Liberia, including those backed by the Guinean
government. In 2003, he abdicated his role as president in
exchange for immunity and fled to Nigeria.
Paye, who is Krahn, was born in Monrovia, Liberia in
1990. When he turned two years old, he fled Liberia with his
mother to Sierra Leone to escape the ethnic cleansing and genocide
of the Krahn people. He, along with his uncle and mother, resided
in refugee camps in Sierra Leone until 1996 or 1997. With his
uncle and mother, Paye attempted to flee Sierra Leone to Guinea
because NPFL forces began hunting Krahns residing in Sierra Leone.
But, at the Guinean border, Paye and his family were
detained by armed men in military fatigues. The men questioned
Paye and his family, and one of the men struck Paye repeatedly
with a rifle butt in the back of his head -- opening a hole in the
back of his ear and damaging his hearing. This, the man said,
"marked" Paye. Because the men spoke "Liberian English" with a
distinctive accent, Paye believed that they were from Liberia.
Paye stayed in refugee camps until he entered the United
States in 2005 as a refugee. His mother died in a refugee camp in
Guinea due to illness, while his uncle died in 2010 in the United
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States. Paye's status was adjusted to that of a lawful permanent
resident on May 20, 2010, retroactive to his entry in 2005,
pursuant to 8 U.S.C. § 1159.
B. Removal Proceedings
Paye was convicted in the U.S. District Court for the
District of Rhode Island and sentenced to three years of probation
on February 3, 2020, after he pled guilty on a three-count
indictment to various firearms-related offenses. Nine months
later, the United States Immigration and Customs Enforcement
detained Paye for removal proceedings because he was convicted of
an aggravated felony and firearm offense, pursuant to the
Immigration and Naturalization Act ("INA"), 8 U.S.C.
§§ 1227(a)(2)(A)(iii), (a)(2)(C). In turn, Paye sought asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"). In his brief to the IJ, he argued, among
other things, that his forced flight from Liberia due to the NPFL
and INPFL's ethnic cleansing and genocide against Krahns was past
persecution.
Before the IJ on December 22, 2020, Paye testified about
his escape from ethnic cleansing and genocide in Liberia, his
encounter at the Guinean border, and the moments leading up to his
arrest and conviction. The IJ considered Paye's testimony credible
but denied his petition on all grounds.
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First, the IJ determined that Paye's firearms
convictions qualified as "particularly serious crimes," making him
ineligible for withholding of removal. Second, the IJ denied
Paye's withholding-of-removal and CAT claims on the merits. The
IJ acknowledged the violence in Liberia from the civil war and how
this meant that Krahns were systematically targeted. And the IJ
recognized that the evidence in the record (namely, a report on
the current country conditions in Liberia) "note[d] that impunity
for individuals who committed human[-]rights abuses, including
atrocities during the Liberian civil war . . . , remained a
serious problem." Nevertheless, the IJ referenced signs that
Liberia is more stable than it was when Paye left, stating, as an
example, the current president's endorsement of a "war court" to
try those who committed war crimes during the civil war. In
dismissing Paye's concerns, the IJ stated that Paye had not shown
that it was "more likely than not he would be harmed on account of
his membership in a particular social group, his Krahn ethnicity."
The IJ determined that Paye's "claim for fear of return to Liberia
is basically focused and rests on [the] Liberian civil war," which
ended in 2003.
The IJ then shifted to Paye's claim for past persecution.
He stated that "it does not appear [Paye] suffered past
persecution, notwithstanding what happened to him on the border
between Sierra Leone and Guinea, because the [c]ourt cannot find
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that what happened to [Paye] was at the hands of government
officials from Liberia." To the IJ, it was not enough that Paye
explained that his assailant "spoke Liberian English . . . to
conclude" that this "individual was acting on behalf of the
government of Liberia," especially where the attack "took place in
Sierra Leone on the border with Guinea."
Paye appealed, arguing, among other things, that having
to flee Liberia because of ethnic cleansing and genocide against
Krahns qualified as past persecution, thereby entitling him to a
presumption that he would face future persecution in Liberia. See
8 C.F.R. § 1208.13(b)(1). The BIA affirmed. The BIA held that
Paye's underlying convictions were particularly serious crimes,
dismissing his appeal on that basis alone. Paye appealed to us,
seeking a stay of removal and vacatur. We granted the stay, and,
before we could review his petition, granted the government's
motion to voluntarily remand the case to the BIA so that it could
revisit his petition in light of Matter of B-Z-R, 28 I. & N. Dec.
563, 565-67 (A.G. 2022), which provided new guidance on how to
determine whether crimes under the relevant INA provisions are
"particularly serious."
On remand, Paye argued to the BIA, among other things,
that his forced escape from ethnic cleansing and genocide qualified
as past persecution and entitled him to the future-persecution
presumption. In dismissing Paye's appeal this time, the BIA
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limited its analysis to whether Paye met the standards for
withholding of removal and CAT protection. It agreed with the IJ
that Paye did not show past persecution because he was assaulted
"when he was between the border of Sierra Leone and Guinea[.] [The
BIA, like the IJ,] could not conclude that the Liberian government
was responsible simply because the perpetrator spoke Liberian
English."
Paye filed the present petition on May 10, 2023. We
sort his grounds for relief into three categories: (1) his forced
flight from ethnic cleansing and genocide, (2) his assault at the
border, and (3) whether the BIA erred in analyzing his
ethnicity-based future-persecution claim.
II. DISCUSSION
A. Legal Standards
We first set out the legal standards applicable to Paye's
petition. "When 'the BIA adopts and affirms the IJ's ruling but
also examines some of the IJ's conclusions, this [c]ourt reviews
both the BIA's and IJ's opinions'" to the extent the BIA adopts
the IJ's opinion. H.H. v. Garland, 52 F.4th 8, 16 (1st Cir. 2022)
(alteration in original) (quoting Sanabria Morales v. Barr, 967
F.3d 15, 19 (1st Cir. 2020)). "In conducting our review, we defer
to the agency's factual determinations 'as long as those
determinations are supported by substantial evidence,' but we
review questions of law de novo." Pineda-Maldonado v. Garland, 91
- 9 -
F.4th 76, 80 (1st Cir. 2024) (quoting Ahmed v. Holder, 611 F.3d
90, 94 (1st Cir. 2010)).
Applicants prove their eligibility for withholding of
removal when they demonstrate "a clear probability that, if
returned to [their] homeland, [they] will be persecuted on account
of a statutorily protected ground." Espinoza-Ochoa v. Garland, 89
F.4th 222, 230 (1st Cir. 2023) (quoting Sanchez-Vasquez v. Garland,
994 F.3d 40, 46 (1st Cir. 2021)). "Establishing [eligibility]
requires proof of three discrete elements: a threshold level of
past or anticipated serious harm, a nexus between that harm and
government action or inaction, and a causal connection to one of
the five statutorily protected grounds."2 Sanchez-Vasquez, 994
F.3d at 46 (citing Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st
Cir. 2012)).
Two requirements deserve further explanation, including
the "past or anticipated serious" harm prong. Id. "'Persecution'
is not defined by statute, and 'what constitutes persecution is
resolved on a case-by-case basis.'" Yong Gao v. Barr, 950 F.3d
147, 152 (1st Cir. 2020) (quoting Panoto v. Holder, 770 F.3d 43,
2 Because the standard for a withholding-of-removal claim is
higher than an asylum claim -- requiring "a clear probability of
persecution" rather than a mere "well-founded fear of
persecution" -- "'asylum precedents may be helpful in analyzing
withholding-of-removal cases,' and vice versa." Barnica-Lopez v.
Garland, 59 F.4th 520, 528 (1st Cir. 2023) (quoting
Sanchez-Vasquez, 994 F.3d at 46).
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46 (1st Cir. 2014)). We consider "[t]he severity, duration, and
frequency" of abuse and ask "whether harm is systematic rather
than reflective of a series of isolated incidents." Id. (quoting
Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)). "The abuse
must also 'have reached a fairly high threshold of seriousness, as
well as some regularity and frequency.'" Ordonez-Quino v. Holder,
760 F.3d 80, 91 (1st Cir. 2014) (quoting Ivanov v. Holder, 736
F.3d 5, 11 (1st Cir. 2013)). But petitioners need not suffer
physical harm for their abuse to qualify as past persecution. See
Chen Qin v. Lynch, 833 F.3d 40, 44 (1st Cir. 2016) ("[W]e view
persecution as encompassing not only death and imprisonment, but
[also] the well-founded fear of non-life[-]threatening violence
and physical abuse." (second alteration in original) (internal
quotation marks omitted) (quoting Marquez v. INS, 105 F.3d 374,
379 (7th Cir. 1997))). For example, "[w]e have long held that
credible, specific threats can amount to persecution if they are
severe enough -- particularly if they are death threats."
Aguilar-Escoto v. Garland, 59 F.4th 510, 516 (1st Cir. 2023)
(internal quotation marks omitted) (quoting Javed v. Holder, 715
F.3d 391, 395-96 (1st Cir. 2009)) (collecting cases); see also
Aguilar-Solis v. INS, 168 F.3d 565, 570 (1st Cir. 1999)
("[P]ersecution encompasses more than threats to life or freedom,
but less than mere harassment or annoyance." (citations omitted)).
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Also relevant here is the third requirement:
"petitioners must show that the underlying past mistreatment that
they allege occurred is the direct result of government action,
government-supported action, or government's unwillingness or
inability to control private conduct." Vila-Castro v. Garland, 77
F.4th 10, 13 (1st Cir. 2023) (cleaned up) (quoting Orelien v.
Gonzales, 467 F.3d 67, 72 (1st Cir. 2006)); see also Orelien, 467
F.3d at 72 ("[A]ction by non-governmental actors can undergird a
claim of persecution only if there is some showing that the alleged
persecutors are in league with the government or are not
controllable by the government." (alteration in original)
(quoting Da Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005))).
"'[U]nwillingness and inability are distinct issues' and the
'inquiry into whether there is a government nexus must include
separate consideration of the evidence of unwillingness and the
evidence of inability.'" Singh v. Garland, 87 F.4th 52, 59-60
(1st Cir. 2023) (quoting Rosales Justo v. Sessions, 895 F.3d 154,
163, 164 n.8 (1st Cir. 2018)).
B. Jurisdiction
We pause briefly to consider our jurisdiction. The
government beckons us to dismiss this appeal for lacking statutory
jurisdiction, contending that Paye's withholding-of-removal claim
is not a colorable legal or constitutional claim. The government
directs our attention to 8 U.S.C. § 1252(a)(2)(C), which provides
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that "no court shall have jurisdiction to review any final order
of removal against [a noncitizen] who is removable by reason of
having committed [certain] criminal offense[s]." Because Paye was
convicted of offenses that fall within this statutory purview, the
government argues that we cannot review his petition for removal.
And, although the government recognizes our ability to consider
questions of law and colorable constitutional claims under
§ 1252(a)(2)(D), it characterizes Paye's arguments as falling
outside this exception.
It is true that although the INA limits our statutory
jurisdiction "to review any final order of removal against [a
non-citizen] who is removable by reason of having committed a
[covered] criminal offense," id. § 1252(a)(2)(C), we maintain
jurisdiction in this realm to review "constitutional claims or
questions of law," id. § 1252(a)(2)(D). And it is also true that,
although "an agency need not spell out every last detail of its
reasoning where the logical underpinnings are clear from the
record," "the agency is obligated to offer more explanation when
the record suggests strong arguments for the petitioner that the
agency has not considered." Aguilar-Escoto, 59 F.4th at 517
(cleaned up). Thus, we possess jurisdiction under § 1252(a)(2)(D)
where "[the agency] failed to meet this standard given its total
lack of analysis -- or, indeed, mention -- of critical evidence."
Id.; see Rodríguez-Villar v. Barr, 930 F.3d 24, 29 (1st Cir. 2019)
- 13 -
(characterizing the agency's failure to consider "critical
evidence supporting the petitioner's claim for withholding of
removal and in using such evidence as part of its rationale for
denying that claim" as a legal error). And here, we review whether
the agency failed to address Paye's escape from ethnic cleansing
and genocide in Liberia, which is a question of law. See
Aguilar-Escoto, 59 F.4th at 517. Under this approach, we do not
profess to reweigh the facts, so we have jurisdiction to proceed.
Moreover, to the extent Paye's arguments concerning the
border attack raise novel issues of statutory jurisdiction, we
often "bypass[] enigmatic jurisdictional questions in
circumstances in which precedent clearly adumbrates the result on
the merits." Royal Siam Corp. v. Chertoff, 484 F.3d 139, 144 (1st
Cir. 2007); see also Seale v. INS, 323 F.3d 150, 157 (1st Cir.
2003) (applying hypothetical jurisdiction in an immigration appeal
where the "petitioner clearly loses on the merits of his claims").
As we explain, our resolution on why Paye's arguments concerning
whether the agency erred in analyzing his argument that the border
attack constituted past persecution fail is straightforward.
Thus, we shall assume hypothetical jurisdiction to resolve them.3
3At our request, the parties briefed the impact of Wilkinson
v. Garland, 601 U.S. 209, 217 (2024), in which the Supreme Court
held that the federal courts of appeal possess jurisdiction under
8 U.S.C. § 1252(a)(2)(D) to review "the application of the
exceptional and extremely unusual hardship standard to a given set
of facts." We, however, premise our jurisdiction on our ability
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C. Escape from Ethnic Cleansing and Genocide as Past Persecution
We return to the principles elucidated above to review
whether the agency adequately addressed if Paye's childhood escape
from ethnic cleansing and genocide in Liberia constituted past
persecution. Our cases require the agency "'to articulate [its]
reasoning on [an] issue with sufficient particularity and clarity'
to permit us to 'infer the factual or legal basis for [that]
determination.'" Pineda−Maldonado, 91 F.4th at 81 (third
alteration in original) (quoting H.H., 52 F.4th at 23); see also
Panoto, 770 F.3d at 46; Sok v. Mukasey, 526 F.3d 48, 53 (1st Cir.
2008); Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 25 (1st Cir.
2004). "[It] must, at a minimum, 'fairly appraise the record'"
and cannot ignore "salient facts." Rodríguez-Villar, 930 F.3d at
28 (quoting Sihotang v. Sessions, 900 F.3d 46, 51 (1st Cir. 2018)).
The record reveals that Paye argued at every level of
review that his forced flight due to the Liberian rebel forces'
ethnic cleansing and genocidal killing of Krahn people was past
persecution. Yet the agency appears to have "completely overlooked
[this] critical evidence." Sihotang, 900 F.3d at 51. The IJ
to review the agency's total lack of analysis of Paye's escape
from ethnic cleansing and genocide in Liberia, which is a question
of law under § 1252(a)(2)(D). See Aguilar-Escoto, 59 F.4th at
517. And we assume hypothetical jurisdiction to reject Paye's
arguments concerning the border attack, as is our usual practice.
See Seale, 323 F.3d at 157. Therefore, we need not consider
Wilkinson.
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mentioned such evidence only when reciting the facts underlying
Paye's claims, and the BIA did not address it. Under our
precedent, the agency was required to address this potential
evidence of past persecution. See Aguilar-Escoto, 59 F.4th at
517.
In recognizing this, we reject the government's argument
that the IJ's acknowledgment that Paye fled Liberia as a child
shows that the agency rejected his past-persecution argument.
Although the agency's findings "on all grounds that are necessary"
to support its decision may be "either explicit or implicit,"
Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir. 2008) (citing Un
v. Gonzales, 415 F.3d 205, 209 (1st Cir. 2005)), we cannot infer
that the agency here implicitly held that Paye's forced flight due
to the genocidal killing and ethnic cleansing of Krahn people did
not constitute past persecution. See Pineda−Maldonado, 91 F.4th
at 81. While it appears that the IJ found that the conditions in
Liberia have improved since the civil war ended in 2003, it is
unclear how this is relevant to Paye's escape from Liberia during
the height of the civil war. Cf. Hernandez-Barrera, 373 F.3d at
22-23. And, given Paye's credible testimony and evidence of his
forced flight from Liberia due to the ethnic cleansing and genocide
against the Krahns during the civil war, "[w]e cannot say the
evidence compels a conclusion either way," so we "must remand to
the agency to make a well-reasoned and well-explained
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determination of [Paye's] eligibility." Sok, 526 F.3d at 58(quoting El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir.
2003)).
The government claims that just because "Paye and his
mother fled Liberia does not automatically entitle him to a finding
of past persecution," but this generalization misses the mark.
True, a "fear of harm from general conditions of violence and civil
unrest does not even establish a 'well-founded fear of
persecution,' the asylum standard, much less a clear probability
of persecution, the withholding of removal standard." Tay-Chan v.
Holder, 699 F.3d 107, 112-13 (1st Cir. 2012) (discussing this
standard only as to whether the petitioner established a cognizable
social group). But the agency did not weigh the evidence of Paye's
flight from Liberia -- due to the targeted ethnic cleansing and
genocide of Krahns, not general unrest -- in its past-persecution
calculus. This argument thus leads us back to the start: we must
vacate the agency's ruling because it did not address Paye's forced
flight from ethnic cleansing and genocide in Liberia. See
Aguilar-Escoto, 59 F.4th at 517.
The government's final riposte highlights what it
believes to be a paucity of evidence connecting the harm Paye
suffered with the Liberian government. It defends the agency by
declaring that the agency was "not required to write an exegesis
on every contention," Peulic v. Garland, 22 F.4th 340, 352 n.8
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(1st Cir. 2022) (citation omitted), and characterizes the agency's
conclusion that the Liberian government was not responsible for
the border incident as an implicit rejection that the Liberian
government had any responsibility for the genocide and ethnic
cleansing of the Krahn whatsoever. However, we glean no basis to
support the government's reading. The IJ stated only that he could
not find that "what happened to [Paye] on the border . . . was at
the hands of government officials from Liberia," and the BIA
agreed. As for the question of whether Paye's flight was past
persecution, it does not appear that the agency engaged with
Liberia's potential unwillingness or inability to restrain his
potential persecutors outside of the border attack, warranting
remand.4 See Aguilar-Escoto, 59 F.4th at 518 (vacating and
remanding where "the IJ never addressed whether [the petitioner]
had shown that the Honduran government was unwilling or unable to
protect her from the past harm perpetrated by" her purported
persecutor because the IJ simply concluded that the petitioner did
not suffer past persecution).
4 The government's argument that we should affirm the agency
because the BIA cited our cases correctly setting forth the
"government action" prong -- including a government's inability or
unwillingness to restrain private actors -- is unavailing.
Although the BIA cited the proper standard setting forth this
prong, that does not salvage its decision because, as we have
explained, it failed to consider why Paye's forced flight due to
the Liberian rebel forces' ethnic cleansing and genocidal killing
of Krahn people was not past persecution. See Aguilar-Escoto, 59
F.4th at 517.
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We provide further guidance to the agency on remand. If
Paye suffered past persecution, either due to the Liberian
government's action or unwillingness or inability to restrain
private actors, he is entitled to a presumption of future
persecution. See 8 C.F.R. § 1208.13(b)(1); Aguilar-Escoto, 59
F.4th at 518-19. "[T]he absence of reasoned discussion of past
persecution undercuts any meaningful review of the [agency's] fear
of future persecution finding, because we do not know whether
[Paye] should have had the benefit of the regulatory presumption
of fear of persecution based on prior events." Pineda-Maldonado,
91 F.4th at 84 (first and second alterations in original) (quoting
Hernandez-Barrera, 373 F.3d at 22). We emphasize this presumption
because the IJ acknowledged ongoing human-rights violations in
Liberia and impunity of those who are responsible for atrocities
during the civil war. Cf. Ordonez-Quino, 760 F.3d at 93(recognizing that the agency could not deny withholding of removal
solely because militants after the Guatemalan civil war integrated
with the government where the agency did not meaningfully engage
with current-country-conditions evidence pointing to Guatemala's
continuing discrimination against indigenous Mayan Quiché or how
that evidence affected the petitioner). And because the IJ
concluded only that Paye had not met his burden on this point, we
cannot discern whether the presumption could have had a meaningful
impact on Paye's chances of success.
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To be clear, we express no opinion on whether Paye's
past-persecution argument based on his forced flight from Liberia
due to ethnic cleansing and genocidal killing of the Krahn people
has merit. But we must remand here so that the agency may
articulate its reasoning on this point with enough clarity for us
to review.
D. Border Attack
We turn next to Paye's arguments concerning withholding
of removal based on his attack at the Sierra Leone-Guinea border.
As he argued before the BIA, he now argues that the agency erred
because it did not consider that "persecution can be at the hands
of non-state actors" and emphasizes that the IJ contended that the
Liberian government was not responsible for the border attack. He
further contends that the agency did not meaningfully engage with
his claim that the Liberian government could be responsible for
this act of persecution that it was unwilling or unable to address.
We do not find error in the agency's analysis of the
border attack. Rather, despite Paye's contrary construction of
the agency's decisions, the agency did conclude that Paye did not
meet his burden to show that the Liberian government was
responsible -- by action or acquiescence -- for the border attack.
We thus affirm this ruling.
The IJ concluded that there was an insufficient
connection between the attack and the Liberian government because
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the attack took place at the border of two countries other than
Liberia and Paye's proffered support -- that his assailants spoke
Liberian English and could have been Taylor's forces who pursued
him into Sierra Leone -- did not satisfy his evidentiary burden.
The BIA agreed with the IJ's determination that the Liberian
government could not be "responsible" for an incident at the border
of two different nations "simply because the perpetrator spoke
Liberian English," and it quoted thereafter to our decision in
Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014), for the
proposition that an asylum applicant must prove "that government
action or acquiescence caused or resulted in the mistreatment
giving rise to [his] claim" (emphasis added). Thus, contrary to
Paye's argument on appeal, that the agency referenced whether "the
Liberian government was responsible" did not signal that it
believed that only the government could persecute him. Rather,
with the BIA's citation to Panoto and reference to the Liberian
government being "responsible," the BIA implicitly recognized that
the Liberian government could be responsible for persecution if it
acquiesced to its occurrence and determined that Paye failed to
carry his burden on this point. See Hanan v. Mukasey, 519 F.3d
760, 764 (8th Cir. 2008) (finding that the record did not support
the claim that the agency failed to consider persecution under a
government-acquiescence theory where the agency, in part, cited to
the correct legal standard).
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Accordingly, the agency recognized that non-state actors
can be persecutors and simply rejected that the Liberian government
acquiesced to such persecution. We therefore find no error in the
agency's analysis of the border attack.
E. Future-Persecution Arguments
Paye raises two arguments concerning the agency's
conclusion that he failed to establish his Krahn-ethnicity-based
future-persecution claim for withholding of removal: (1) the BIA
applied an incorrect statutory standard, and (2) the BIA did not
review the IJ's nexus determination de novo.5 However, Paye
informs us that if we were to rule in his favor and vacate the
agency's conclusion that he was not entitled to withholding of
removal based on past persecution, then this "is sufficient to
vacate [the agency's] withholding analysis in its entirety." He
notes that the agency's analysis, including on his
future-persecution claim, is flawed because its failure to
conclude whether he suffered past persecution for escaping ethnic
cleansing and genocide potentially deprived him of the presumption
of future persecution. Thus, he contends that if we "agree[] with
[him] that the BIA committed reversible errors in the past
5 Were we to resolve these claims, they would be within our
statutory jurisdiction because they are "questions of law" under
§ 1252(a)(2)(D). See Adeyanju v. Garland, 27 F.4th 25, 37 (1st
Cir. 2022); Peulic, 22 F.4th at 346 (noting that whether the agency
applied the "wrong legal standard" is a question of law).
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persecution analysis, then [we] do[] not need to reach his future
persecution claim."
We agree. As we noted above, the agency's failure to
analyze Paye's ethnic-cleansing-and-genocide-based
past-persecution claim meant that it analyzed his
future-persecution claim without the presumption. Indeed, the IJ
and BIA premised their rejection of Paye's claim on his failure to
meet his burden. We are left guessing whether things would have
turned out differently if Paye received the presumption because
the agency denied his future-persecution claim based only on his
purported failure to meet his burden.
True, we have excused the agency's failure to afford
this presumption when "the record makes it abundantly clear that
the petitioner will not likely suffer future persecution if sent
back to her home country." Sok, 526 F.3d at 56. But this case is
not so "clear-cut that the allocation" of the burden "does not
matter." Id. at 57 (quoting Palma-Mazariegos v. Gonzáles, 428
F.3d 30, 35 (1st Cir. 2005)). As the IJ recognized, the evidence
in the record regarding Liberia's stability cut both ways -- some
indicating "impunity" for those who committed war crimes, some
suggesting that stability is now the norm. We cannot say that a
regulatory burden would make no difference.
Thus, the proper course here is to vacate the agency's
withholding-of-removal analysis in its entirety and remand for
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further consideration. See Pineda-Maldonado, 91 F.4th at 84, 91;
Hernandez-Barrera, 373 F.3d at 23-26; see also, e.g., Singh v.
Garland, 57 F.4th 643, 657-58 (9th Cir. 2023). Because this means
that we need not address Paye's future-persecution arguments (as
he suggests), then we shall not do so.
III. CONCLUSION
For the reasons we have detailed above, the agency should
have addressed Paye's claim that his flight from Liberia to escape
ethnic cleansing and genocide was evidence of past persecution.
And it should have done so with enough particularity and clarity
to facilitate appellate review. Although we reject Paye's argument
that the agency erred in analyzing the border attack, we agree
that the agency's failure to analyze his argument that his forced
flight from Liberia was past persecution counsels us to vacate its
decision. We therefore (1) grant in part the petition for review,
(2) vacate the BIA's decision, and (3) remand for proceedings
consistent with this opinion.
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