Adel Ghanem v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1475
_____________
ADEL SULTAN MOHAMMED GHANEM,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision
of the Board of Immigration Appeals
(Agency No. A055-775-985)
Immigration Judge: Leo A. Finston
______________
Argued: March 16, 2021
______________
Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges.
(Opinion Filed: September 22, 2021)
Ian H. Gershengorn
William R. Weaver [ARGUED]
Jenner & Block
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001
Samuel C. Kaplan
1401 New York Avenue, N.W.
Washington, DC 20005
Counsel for Petitioner
William P. Barr
Alison M. Igoe [ARGUED]
Erik R. Quick
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________
OPINION
______________
KRAUSE, Circuit Judge.
Adel Ghanem, a former lawful permanent resident of
the United States, seeks to avoid removal to Yemen, from
which he fled to avoid persecution on account of political
opinion. He pursues three forms of relief that were denied by
the Immigration Judge (IJ) and the Board of Immigration
Appeals (BIA): asylum under the Immigration and Nationality
Act, 8 U.S.C. § 1158(a), withholding of removal under the Act,
8 U.S.C. § 1231(b)(3), and withholding of removal under the
Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. §
1208.16(c). Ghanem was kidnapped and tortured before being
convicted and sentenced to ten years’ imprisonment for
political opposition to the Houthi regime. We will therefore
grant the petition for review and remand to the BIA.
2
I. Factual and Procedural Background1
Whether Ghanem succeeds on appeal depends on
whether the IJ’s findings, adopted by the BIA, are supported
by substantial evidence. We therefore begin by surveying the
record before the agency in detail.
A. Ghanem’s Return to Yemen and Involvement
in the Arab Spring
Born in Ba’adan, in Yemen’s Ibb Province in 1986,
Ghanem was admitted to the United States as a lawful
permanent resident in 2003. In 2009, however, Ghanem
returned to Yemen to get married, and in 2010, he settled with
his wife in the city of Sana’a, where he opened a convenience
store.
Within months, a series of pro-democracy uprisings—
later known as the Arab Spring—swept across the region.
These movements eventually reached Yemen, where activists
and members of the general public alike called for the removal
of President Ali Abdullah Saleh in favor of a new government
that would institute political, social, and economic reforms.
Ghanem was among these reformers, joining in a
demonstration known as “Dignity Friday” and other peaceful
protests calling for “freedom of speech, press, assembly,
association and religion and movement.” AR1035.
In part, the reforms succeeded: Saleh was eventually
forced to step down, and Vice President Abd-Rabbu Mansour
Hadi was elected president in a free and fair election. But with
that success came civil discord and political reprisals from
Saleh supporters. Armed groups continued to foment
instability and violence, including a growing Houthi
movement composed of members who practiced an
“extremist” form of the Shia religion and ultimately allied
1
Because the IJ found Ghanem “generally credible” and
credited his testimony as “consistent with the record,” JA41,
we accept as true his statements of fact and draw the following
information from both the administrative record before the
agency and the factual accounts offered by the IJ and BIA in
their respective decisions.
3
themselves with the ousted president. AR1033–34. The
Houthi rebels’ internal armed conflict with President Hadi’s
government forces injected a bitter sectarian struggle into
Yemeni politics that has carried into the present, casting both
the identity and capacity of Yemen’s governing bodies in doubt
in the eyes of the international community. As relevant for our
purposes, Ghanem had opposed President Saleh at the outset
of this struggle and continued to oppose the Houthis and their
allies as the political landscape evolved.
It was in this context that, shortly after Hadi’s election,
Ghanem began noticing suspicious vehicles and people
arriving at the building next to his convenience store. At that
point, he sought assistance from his uncle-in-law, a well-
known figure in the National Security Agency of Yemen who
also was opposed to the Houthi rebels, and who instructed
Ghanem to monitor the activity next door and to relay what he
observed. As Ghanem continued to share information, his
uncle-in-law warned him that he “should be careful because
[Ghanem] was Sunni” and a potential political target given his
open opposition to the Shia militants. AR1040.
B. Ghanem’s Abuse and Kidnapping
Throughout this period, Ghanem’s brothers-in-law
periodically visited their sister and Ghanem at the couple’s
home in Sana’a. During one particular visit, before he became
aware they had joined the Houthi rebels, Ghanem shared his
political beliefs, lamenting how many people had been killed
by the Houthis and describing them as “criminals” and “threats
to the country.” AR1038–39. Ghanem also recounted how he
had participated with other protestors on Dignity Friday and
how they “were going against the []Shia[].” AR1035, 1039.
As Ghanem later recalled, his brothers-in-law then asked a lot
of questions, as if attempting to gather information, but they
eventually left without incident.
Three days later, however, the brothers-in-law returned.
This time, in no uncertain terms, they told Ghanem he “should
stop talking and . . . should stop encouraging people against the
Shia Houthi.” AR1039. In addition to telling him to stop
criticizing the Houthis, they also demanded that he join them,
but Ghanem refused, telling his brothers-in-law that he “cannot
4
support extremists” and “cannot be with people who carry
guns.” AR414.
Incensed by his opposition, the Houthi rebels, by now
prevalent throughout the city in which Ghanem resided,
adopted more flagrant and violent measures to bring him to
heel. First, they arrived at his home “with guns drawn,”
AR1039, and removed his family under the guise of taking
them to see his sick mother-in-law. A few days later,
Ghanem’s “brother[s]-in-law and their cousins along with a
few other individuals who were wearing masks pull[ed] up in
a car” outside of his house. AR1040. They demanded that he
divorce their sister because he was not a Shia Houthi member
of the Al-Falahi tribe, and when he refused, “[t]hey started
attacking and beating [him].” AR1040. A neighbor witnessed
the assault and stepped in to stop it.
It was a temporary reprieve. Three weeks later, the
Houthi brothers-in-law and their confederates returned, this
time knocking Ghanem unconscious and kidnapping him.
Ghanem awoke in a dark room, legs and hands bound by rope.
Eventually his captors, whom Ghanem recognized as Houthis,
entered the room and threatened that, “they knew who
[Ghanem] was so if they asked [him] any question and [he] did
not answer honestly they would kill [him].” AR1041. They
told Ghanem that “they knew all of [Ghanem’s] activities” and
that he “should give them what they want” and shouldn’t
“blame anyone else for [his] faith.” AR1041. They wanted
“names”—they interrogated Ghanem about “who [he] was . . .
working for” and to whom he had given information. AR1041.
Over the next two weeks, his captors returned
repeatedly and brutally tortured Ghanem, accusing him of
being a spy. They beat him with shoes, spit in his face, hung
him upside down, and subjected him to simulated drowning
until he was “choking and gasping for breath.” AR1041–42.
They also forced Ghanem to drink their urine and tied a rubber
band around his testicles. For two weeks, Ghanem remained
bound without access to a bed or a bathroom, sleeping and
relieving himself on the floor, and after each round of abuse,
his torturers would ask Ghanem if he had “changed [his] mind”
about “giving them information.” AR1042. When the
kidnappers eventually released him, Ghanem had to be taken
5
to the intensive care unit of a local hospital where he was
treated over the next two weeks for physical and mental
suffering.
C. Ghanem’s Efforts to Obtain Justice and
Evade Harm
After being released, Ghanem attempted in vain to bring
his torturers to justice. Although he brought kidnapping and
torture charges against them with the help of an attorney, none
of the defendants ever appeared in court. Three of Ghanem’s
neighbors did, however, appear as witnesses and testified that
they observed his beating and kidnapping for his “criticism . .
. of [the] Al-Falahi Shia group . . . and his refusal to join them.”
AR987. The Yemeni court ultimately found Ghanem’s captors
guilty based on this witness testimony. But as the government
was unable bring them in, they were never punished and
Ghanem was left without recourse for his emotional, physical,
and legal injuries.
Instead, his efforts to obtain justice endangered him
further: When his captors learned of the charges, they began
to look for him, threatening to “kill [him] and not even [bother
with] kidnap[ping].” AR1044. Upon his lawyer’s advice,
Ghanem fled to his hometown of Ba’adan to hide, but his
abusers continued to pursue him. Houthi “members of the Al-
Falahi tribe” mobilized by Ghanem’s brothers-in-law “came
and shot at the house in which he was staying,” JA39–40, but
Ghanem narrowly escaped.
After a mere two weeks in Ba’adan, Ghanem was forced
to flee to Aden, and ultimately to Hadramout, where he hid
with his uncle-in-law to avoid the Houthis and their allies as
they continued to clash with government security forces and
expand throughout Yemen. Ghanem left Yemen for Malaysia
altogether in December 2012, and his uncle-in-law was
attacked and killed the following year. He then travelled to
South Korea, where he continued to express his anti-Houthi
opinion and even publicly interacted with Yemeni government
officials visiting the region.
6
D. Houthi Court Proceedings in Yemen
By July 2014, while Ghanem was seeking refuge
abroad, the Houthis had gained control of the central
government. With the political tables now turned, Ghanem’s
persecutors obtained a judgment against him in absentia from
a Houthi-controlled court in West Sana’a, sentencing him to
ten years in prison. According to the judgment, Ghanem was
convicted of “incit[ing] against order and the regime and for
anti-Shia sedition.” AR979. The Houthi government also
issued an arrest circular “[t]o all the security directors of the
governorates and districts,” as well as “all ports and military
check points” in the provinces and directorates. AR975. The
circular, which remains in effect, demands Ghanem’s capture
immediately upon his return to Yemen.
E. Ghanem’s Return to the United States and
Removal Proceedings
In February 2017, Ghanem was detained after he
attempted to enter the United States under the mistaken
impression that he still possessed a valid immigrant visa as a
result of his abandoned lawful permanent resident status. See
8 U.S.C. § 1227(a)(1). Appearing pro se at the subsequent
removal hearing, Ghanem sought asylum and withholding of
removal on the basis of past persecution for political opinion
under the INA, as well as protection from removal under the
CAT. In support of those claims, he submitted a sworn
statement describing his persecution and fear of return to
Yemen, country conditions reports, letters from family
members, and photographs of him with political figures, along
with translations of the Yemeni court proceedings against his
captors, the 2014 in absentia judgment against him, and the
2014 circular issued for his arrest, provided by the Ramada
Translation Bureau.
The IJ rejected each of Ghanem’s claims. First, the IJ
recognized that if Ghanem showed he suffered “past
persecution on account of his race, religion, nationality,
membership in a particular social group, or political opinion,”
JA41, he would be “entitled to a rebuttable presumption of a
‘well-founded fear of future persecution’ on the same basis,”
Doe v. Att’y Gen., 956 F.3d 135, 150 (3d Cir. 2020) (citing 8
7
C.F.R. § 208.13(b)(1)). To establish eligibility for asylum
under either approach, the IJ noted, “the persecution must be
or have been committed by the government or by forces that
the government is unable or unwilling to control.” JA41.
The IJ homed in on the nexus requirement for past
persecution and concluded that Ghanem failed to meet his
burden. The IJ specifically observed that Ghanem had failed
to “specify the political opinion on which [he] relies” and
“show that [he] holds that opinion.” JA42. Although the IJ
found that Ghanem was “generally credible” and had
“provided the Court with a sufficient amount of documentary
evidence to corroborate his testimony,” JA25, he also
expressed some concern about the documents submitted with
uncertified English translations. As for those, the IJ requested
that the Government authenticate the foreign records and that
Ghanem try to obtain certifications in order to establish the
requisite nexus. But the Government responded that it had not
been able to investigate the documents due to the foreign
conflict and it disavowed any knowledge of available
translation services. And Ghanem, for his part, explained that
he “[could not] produce such corroboration” because of the
ongoing war in Yemen, his current detention, and his lack of
resources to pay for the certifications. Saravia v. Att’y Gen.,
905 F.3d 729, 737 (3d Cir. 2018). The IJ ultimately accepted
the uncertified translations of Ghanem’s court proceedings and
arrest order in Yemen into evidence and credited Ghanem’s
testimony concerning them, but announced he would give them
“diminished weight.” JA41.
Having discounted, at least in part, the documentary
proof Ghanem provided, the IJ concluded that Ghanem “did
not provide objective evidence demonstrating his political or
religious affiliation and participation,” JA41, and therefore had
not substantiated the protected ground “purportedly giv[ing]
rise to his asylum claim,” JA42. The IJ also determined that
“the harm suffered by [Ghanem] was on account of familial
tensions,” and that Ghanem’s brothers-in-law simply “used
their authority as members of the Houthi rebel group to
effectuate his kidnapping and 10-year sentence.” JA43.
Having found Ghanem ineligible for asylum based on past
persecution, the IJ declined to give him the benefit of a
rebuttable presumption of future persecution or to find that he
8
could “meet the higher burden of proof for [his] withholding
claim.” JA27.2
As for Ghanem’s torture claim, the IJ concluded that
Ghanem did not “me[e]t his burden of proof for protection
under the CAT.” JA44. Despite acknowledging that “the
country conditions reports highlight various serious societal
problems, including internal conflicts . . . and an inadequate
legal infrastructure,” and the fact that “the Houthi rebels are
effectively the governmental body in a region of Yemen,”
JA44, the IJ rejected Ghanem’s assertion that he is likely to
face torture with the government’s acquiescence upon his
return. The IJ found that the Houthi rebels “do not have control
over other regions” and that there was “no objectively reliable
evidence demonstrating that [Ghanem’s persecutors] have
continued searching for him,” or would be able to “find him
and torture him in regions of Yemen which are not under
Houthi control.” JA44.
Ghanem appealed to the BIA, which affirmed the IJ’s
opinion as to both Ghanem’s INA and CAT claims. As for the
INA claims, like the IJ, the BIA questioned Ghanem’s alleged
political affiliations and, although it also found his testimony
credible, concluded Ghanem did not submit “objective
evidence demonstrating his political . . . affiliation and
participation.” JA34. It determined, for example, that he “did
2
Ghanem also challenges the IJ’s and BIA’s failure to
separately analyze his claim for withholding of removal.
Because the denial of Ghanem’s withholding claim rested
solely on the conclusion that he failed to establish eligibility
for asylum, a conclusion unsupported by case law and the
record here, that denial cannot stand. Yet Ghanem urges this
Court to go farther, arguing that he has marshalled sufficient
evidence to establish a “clear probability” of future
persecution, Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d. Cir.
2011), and that he is therefore entitled to mandatory
withholding of removal under 8 U.S.C. § 1231(b)(3)(A).
While we agree that the record demonstrates Ghanem suffered
past persecution sufficient to support his asylum claim, we
leave it for the BIA to determine—consistent with this
opinion—whether he has met this higher burden for
withholding of removal.
9
not provide sufficient context for the . . . purported evidence
that he was convicted in absentia in 2014 by a Houthi-
controlled court to a 10-year sentence.” JA34. From this
finding, the BIA inferred that “any religious or political aspects
to [Ghanem’s] claim play[ed] merely a tangential role in the
harm suffered.” JA34. The Board then agreed with the IJ that,
because Ghanem failed to establish eligibility for asylum, he
did not meet his burden of proof for withholding of removal.
The BIA also affirmed the denial of CAT protection,
adopting the factual findings and reasoning of the IJ. No
further explanation was provided, and the BIA ordered
Ghanem removed. Ghanem timely filed this petition for
review.
II. Discussion3
On appeal, Ghanem contends the IJ’s findings are not
supported by substantial evidence and, in relying on them to
reach the rulings it made, the BIA also erred as a matter of law.4
We first address his arguments under the INA before
discussing his CAT claim.
3
The BIA had jurisdiction over Ghanem’s appeal under
8 C.F.R. §§ 1003.1 and 1240.15, and this Court has jurisdiction
pursuant to 8 U.S.C. § 1252. Where, as here, the BIA “affirms
and partially reiterates the IJ’s discussions and determinations,
we look to both decisions.” Myrie v. Att’y Gen., 855 F.3d 509,
515 (3d Cir. 2017). Employing a highly deferential standard
of review, we will uphold factual determinations “if they are
supported by reasonable, substantial, and probative evidence in
the record considered as a whole.” S.E.R.L. v. Att’y Gen., 894
F.3d 535, 543 (3d Cir. 2018) (internal quotation marks
omitted). When examining “pure questions of law and
applications of law to undisputed facts,” however, our review
is plenary. Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 106 (3d
Cir. 2020).
4
Here, the BIA has largely adopted the factual findings
and legal conclusions of the IJ. We will therefore refer to their
collective determinations as those of the “BIA,” unless
otherwise specified.
10
A. INA Protection
We begin by reviewing the agency’s determination that
Ghanem was ineligible for asylum under the INA because he
was not persecuted “on account of” political opinion. We
perceive two errors in its analysis: First, the Board’s
conclusion ignores overwhelming evidence that Ghanem was
persecuted on account of political opinion. Second, it
erroneously treated familial relationships as disqualifying and
failed to give the proper weight to the substantial record
evidence that a protected ground remains one central reason for
Ghanem’s persecution.
1. The BIA mistakenly focused only on actual
belief instead of imputed political opinion.
It is the persecutors’ actual motivation, not the
petitioner’s beliefs, that are determinative, so a petitioner need
only “provide ‘some evidence of [that motive], direct or
circumstantial,’” to establish the protected ground underlying
his political persecution claim. Espinosa-Cortez v. Att’y Gen.,
607 F.3d 101, 108 (3d Cir. 2010) (quoting Gomez-Zuluaga v.
Att’y Gen., 527 F.3d 330, 343 (3d Cir. 2008)). For that reason,
the nexus requirement may be satisfied by either a “political
opinion the applicant actually holds” or “one the [persecutor]
has imputed to him,” and it is sufficient for a petitioner to
“show that [his persecutors] ha[d] attributed to him [the]
political opinion and that he has a well-founded fear of
persecution based on that imputed political opinion.” Lukwago
v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003) (quoting
Balasubramanrim v. INS, 143 F.3d 157, 164 n.10 (3d Cir.
1998)). Either way, “factual circumstances alone” may be
sufficient to establish a motivation on the basis of a protected
ground. Espinosa-Cortez, 607 F.3d at 109 (quoting Canales-
Vargas v. Gonzales, 441 F.3d 739, 744 (9th Cir. 2006)).
Here, the IJ and BIA determined that Ghanem failed to
“specify the political opinion on which [he] relies,” JA42
(alteration in original) (quoting Fatin v. INS, 12 F.3d 1233,
1242 (3d Cir. 1993)), or to provide sufficient “objective
evidence” that he was persecuted on the basis of “his religious
or political activity in which he criticized the Shia Houthi
rebels,” JA34.
11
Yet the record is replete with evidence, including not
only his testimony credited by the IJ, but also objective
evidence, that Ghanem’s persecutors targeted him on the basis
of his anti-Houthi opinion. The agency ignored, for example,
evidence that Ghanem’s brothers-in-law only began targeting
him after he expressed anti-Houthi opinions, and specifically
told him they did not want him affiliated with their sister
because he was not a Shia Houthi. JA39. The Houthis’
espionage accusations and demands that Ghanem “give them
information” while he was in captivity also illustrate that his
torturers were both aware of and angered by his political
opposition and his association with his uncle-in-law, a national
security official for the Hadi government. AR442, see AR441,
1041. Witnesses in the Yemeni court proceedings Ghanem
initiated against his attackers testified that Ghanem was
kidnapped because of his “criticism of the Shia group,”
AR987, and the judgment in absentia and arrest circular later
issued against Ghanem expressly state that his political
associations and “anti-Shia sedition” were the bases for his
targeting, AR979. That his persecutors were comprised of not
just family relations but also Houthis from other regions and
even Houthi-controlled institutions further supports the
conclusion that Ghanem’s persecutors were motivated by the
belief that he held an anti-Houthi opinion. The agency’s
finding that Ghanem was kidnapped and tortured for refusing
to divorce his wife “mischaracterizes his testimony [and the
record] in such a way as to . . . deprive him from establishing
persecution on account of a protected ground.” Chavarria v.
Gonzalez, 446 F.3d 508, 519 (3d Cir. 2006).
In sum, the record overwhelmingly demonstrates that
Ghanem’s persecutors “‘presumed [an] affiliation’ with the
[Hadi] government—an entity the [Houthis] oppose—[which]
is the functional equivalent of a conclusion that []he holds a
political opinion opposite to that of the [rebels],” and that they
persecuted him on that basis. Espinosa-Cortez, 607 F.3d at 111(quoting Cordon-Garcia v. INS, 204 F.3d 985, 992 (9th Cir.
2000)). In light of this abundant evidence, the agency’s
determination that “there is no indication that [Ghanem] was
targeted on account of his . . . political opinion” is utterly
unsupported by the record. JA43. Although we are cognizant
of the deferential standard of review typically owed to findings
12
of fact made by the BIA, “deference is not due where findings
and conclusions are based on inferences or presumptions that
are not reasonably grounded in the record, viewed as a whole.”
Espinosa-Cortez, 607 F.3d at 107. Moreover, “the BIA may
not simply overlook evidence in the record that supports the
applicant’s case.” Id.In this instance, the record evidence not only fails to
support the BIA’s determination that Ghanem did not
demonstrate nexus between the persecution he suffered and a
protected ground, but also compels the opposite conclusion.
See id. at 108-14 (reversing BIA’s determination that petitioner
did not have a well-founded fear of persecution where the
agency “completely disregarded” evidence in petitioner’s
favor and “a reasonable factfinder would be compelled to
conclude” to the contrary); Guzman Orellana v. Att’y Gen.,
956 F.3d 171, 178-80 (3d Cir. 2020) (holding there was “no
need to require agency reconsideration,” even where the BIA
failed to address one prong of the test, because record
established a cognizable particular social group); Fei Mei
Cheng v. Att’y Gen., 623 F.3d 175, 191-97 (3d Cir. 2010)
(reversing BIA’s determination where “the undisputed record
evidence compel[led] the conclusion” that petitioner had
suffered past persecution). Accordingly, this is one of those
“rare circumstances” in which remand on this issue is not
necessary, since “application of the correct legal principles to
the record could lead only to the same conclusion.” Guzman
Orellana, 956 F.3d at 179 n.23 (quoting Yusupov v. Att’y Gen.,
650 F.3d 968, 993 (3d Cir. 2011)).
2. The BIA erroneously treated Ghanem’s
familial relation to his persecutors as
disqualifying where a protected ground was
also “one central reason” for the persecution.
In determining whether nexus is satisfied, we have
recognized that the presence of multiple motivations for
persecution, including personal conflicts and familial
relationships, is not disqualifying. See Doe, 956 F.3d at 142.
Rather, we ask if a protected ground “was or will be at least
one central reason for the persecut[ion].” Ndayshimiye v. Att’y
Gen., 557 F.3d 124, 129 (3d Cir. 2009) (quoting 8 U.S.C. §
1158(b)(1)(B)(i)). If so, “whether one of those central reasons
13
is more or less important than another is irrelevant,” and
conflicts of a personal nature do not necessarily reduce other
motivations to the “incidental, tangential, or superficial.” Id.
at 129-30. As is especially true in sectarian and ethnic
conflicts, where political affiliation often overlaps with tribal
or personal identity, we look not to the identity of the
individuals involved but to the “motive of Petitioner’s
tormentors.” Doe, 956 F.3d at 142.5
Here, although the BIA correctly recited the “one
central reason” test, it applied something altogether different.
The agency focused exclusively on the familial context of the
dispute, observing that “[Ghanem’s] brothers-in-law
seemingly did not wish for [him] to be associated with their
sister” and possibly “used their authority as members of the
Houthi rebel group to effectuate his kidnapping and 10-year
sentence.” JA27. But it failed to account for ample evidence
in the record that the animus toward Ghanem extended far
beyond his family’s manifestations of displeasure with his
perceived political opinions, such as his torture and kidnapping
at the hands of unrelated Houthis, the shooting he escaped in
Ba’adan, a judgment issued against him in absentia by a
Houthi-controlled court, and a corresponding arrest circular.
There is no way to understand these events other than as
persecution on account of Ghanem’s perceived political
opinions. This is highlighted by the fact that Ghanem’s
brothers-in-law and other Houthi kidnappers repeatedly
questioned him about his activities and political contacts while
holding him captive and torturing him, and the fact that the
5
Indeed, the violence in Doe was incited by the
petitioner’s own father, who had just found out that his son was
gay. See id. at 138-39. After being attacked by his father and
neighbors, Doe fled to the United States, and this Court
concluded that he met the definition of a “refugee.” Id. at 138,
156. In doing so, we expressly noted the familial tensions at
play and that Doe’s attack was “instigated by his father’s
outrage” and belief that his son “brought shame to [his]
family.” Id. at 139, 142. We may very well have reached a
different conclusion in Doe if we had applied the BIA’s logic
here, which suggests that familial involvement severs the
connection between a protected ground and the resulting
persecution.
14
judgment against Ghanem explicitly states that he was
convicted of “incit[ing] against order and the regime and for
anti-Shia sedition.” AR979. What is more, the BIA failed to
recognize that there is no record evidence of any conflict
between Ghanem and his Houthi brothers-in-law prior to his
expression of political opinion. For example, not only did they
attempt to recruit him to their political cause once he shared his
beliefs, but, after he refused to join them, they removed his
wife and child and attacked him. As even the IJ acknowledged,
their justification was that “they did not want their sister to be
associated with [Ghanem]; they were . . . Shia Houthis, and
[Ghanem] was not.” JA23. Applying the “one central reason”
test to this evidence, any reasonable adjudicator would be
compelled to conclude that “the attack and threats [Ghanem]
suffered were motivated” by his apparent beliefs. Doe, 956
F.3d at 142; see 8 U.S.C. § 1252(b)(4)(B).6
6
In concluding that Ghanem failed to establish past
persecution on account of political opinion, the agency
neglected to provide Ghanem with “notice [and] an
opportunity to provide corroborating evidence” or to have his
explanation for the unavailability of certain evidence
meaningfully considered. Saravia, 905 F.3d at 738. First,
beyond the request that Ghanem “attempt to get certifications
of the translations of the Yemen court records,” AR378, the IJ
did not explain to Ghanem “what particular aspects of [his]
testimony it would have been reasonable to expect him to have
corroborated.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.
2001) (emphasis in original). We therefore have no way of
knowing which “objective evidence demonstrating his political
. . . affiliation and participation”—beyond his testimony and
the extensive documentary evidence submitted—the IJ was
after. JA41; see Abdulai, 239 F.3d at 555. Second, the record
does not indicate that the IJ analyzed Ghanem’s reasonable
explanation that he “cannot produce such corroboration”
because of the ongoing war in Yemen, his current detention,
and his lack of resources to pay for the certifications—
notwithstanding the agency’s seeming acceptance of similar
explanations from the Government for its own inability to
authenticate those documents. Saravia, 905 F.3d at 737
(quoting Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir.
2007)). Instead, the IJ simply “afforded the [evidence]
diminished weight.” JA38. Having accepted the documentary
15
B. CAT Protection
Finally, we review the agency’s determination that
Ghanem has not met his burden of proof for CAT protection.
In determining whether Ghanem has established that he would
more likely than not be tortured if removed, the BIA must
answer two, multi-part questions. The Board asks: (1) “what
is likely to happen to the petitioner if removed” and whether
“what is likely to happen amount[s] to the legal definition of
torture,” and (2) “how public officials will likely act in
response to the harm the petitioner fears” and whether that
response “qualifies as acquiescence under the governing
regulations.” Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir.
2017). When answering these questions, the BIA must
consider “all evidence relevant to the possibility of future
torture,” including past torture and the possibility of relocating
to avoid future harm. 8 C.F.R. § 1208.16(c)(3).
The agency took a much more circuitous route here,
penalizing Ghanem for failing to demonstrate the likelihood of
events that it thought should happen in order to sustain a CAT
claim rather than first analyzing “what is likely to happen”
under the initial Myrie inquiry. 855 F.3d at 516 (emphasis
added). The IJ and BIA acknowledged that Ghanem “fears that
his brothers-in-law . . . will kill him,” but conditioned his
eligibility for protection on a showing that he “will return to a
Houthi-controlled region; that his brothers-in-law have
continued searching for him; that they will know that he has
returned, that they will find him, [and] that they will torture
him.’” JA28; see also JA34.
This analysis-by-hypothetical not only threatens to
collapse the factual and legal inquiries of Myrie and to raise the
bar for establishing a likelihood of torture above that required
by our case law, see Myrie, 855 F.3d at 515-16, but it also
produced, in this case, a determination not supported by
substantial evidence: that this series of events is unlikely to
submissions into the record without questioning their
authenticity or veracity, however, the IJ had no basis to
disregard their value.
16
occur. The relevant question here is not simply whether
Ghanem’s brothers-in-law would know that he returned and
take action but whether the Houthis will. And between the
testimony the IJ found credible and corroborated, the
documents the IJ found supported by that testimony, and the
judgment and arrest order reflecting Ghanem’s probable
detention and torture at any point of entry to the country, the
record speaks for itself.
Notwithstanding the agency’s findings, the BIA
overlooked significant evidence that, in accordance with
Myrie’s first inquiry, Ghanem is likely to face torture if
removed to Yemen. Ghanem’s torturers made clear during his
two-week captivity that if he did not cease his anti-Houthi
activities and leave the country, “there will be no negotiation[,]
they will kill [him].” AR1042–43. And the injuries they
inflicted—resulting in a two-week stay in the ICU—
undoubtedly constituted torture.7 Following through on their
threats, they sent confederates in pursuit of Ghanem when he
fled from Sana’a to Ba’adan—the very region the IJ cited as
free from Houthi control—and he barely escaped their
shooting with his life. His persecutors then obtained a
judgment and arrest order against him, demonstrating their
control of courts and law enforcement and imperiling his life
at “all ports and military check points” if he ever returned to
his home country. AR975. Under these circumstances, any
reasonable factfinder would be compelled to conclude that
Ghanem will likely be tortured if forced to return to Yemen.
See 8 U.S.C. § 1252(b)(4)(B).
Turning to the second inquiry under Myrie, the agency
again overlooked significant evidence that Yemeni officials
would not only turn a blind eye to Ghanem’s torture but, in
certain cases, would actively encourage it. State Department
reports before the BIA confirm the Houthis’ considerable and
expanding reach, describing how they routinely engage in
“[p]olitically motivated killings” and utilize “politically
motivated disappearances and kidnappings” to silence
7
See Auguste v. Ridge, 395 F.3d 123, 130 (3d Cir. 2005)
(torture is the intentional infliction of “severe pain or suffering,
whether physical or mental” for the purpose of obtaining
information, punishment, intimidation, or discrimination).
17
individuals “critical of the Houthi movement.” AR590.
Indeed, at the time of Ghanem’s asylum hearing, the Houthis
controlled many of Yemen’s major population centers,
including Sana’a and Ibb—the governorate in which Ghanem’s
hometown resides and to which he fled—and, as the conflict
has raged on, they have only expanded their reach. Yemen
continues to be plagued by “failing state institutions that
allowed widespread disregard for the rule of law,” along with
“killings, disappearances, kidnappings, . . . and torture by
security forces and various militant groups,” severely limiting
the Hadi government’s capacity to conduct investigations and
prosecute abuse. AR589. And since the Houthis gained
“control over most of the security apparatus and state
institutions” in 2014, the Hadi government has “remained
unable to re-establish fully the rule of law in the territory it
holds,” AR589, let alone “all [the] ports and military check
points” encompassed by Ghanem’s arrest order. Contrary to
the BIA’s finding that Ghanem was not likely to be tortured if
returned to a “region[] of Yemen . . . not under Houthi control,”
JA44, the record compels the conclusion that the Yemeni
government, fractured as it is due to the ongoing conflict, was
and still is unable or unwilling to fulfill its “duty to intervene”
and protect Ghanem from torture. Myrie, 855 F.3d at 518; see
8 U.S.C. § 1252(b)(4)(B).
Illustrating “gross, flagrant [and] mass violations of
human rights” that he would be unable to escape, the record
evidence not only fails to support but directly contradicts the
BIA’s conclusions that Ghanem is not likely to be tortured with
the government’s acquiescence, if returned to Yemen. 8
C.F.R. § 1208.16(c)(3)(iii).8 The denial of relief under CAT
therefore cannot withstand even our most deferential review.
8
We also note that the IJ erred in its treatment of this
country conditions evidence. Although country reports such as
these can “constitute sufficient grounds for determining that an
applicant would more likely than not be subjected to torture
upon return to the country of removal,” Pieschacon-Villegas v.
Att’y Gen., 671 F.3d 303, 313 (3d Cir. 2011), the IJ failed to
discuss their relevance beyond acknowledging that the reports
“highlight various serious societal problems,” JA44. While the
agency is “not required to write an exegesis on every
contention,” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.
18
III. Conclusion
For the foregoing reasons, we will grant Ghanem’s
petition, vacate the BIA’s order, and remand to the agency for
further proceedings consistent with this opinion.
2002) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir.
2000)), the IJ was required to explain why country conditions
evidence favorable to Ghanem was rejected. See Fei Yan Zhu
v. Att’y Gen., 744 F.3d 268, 272 (3d Cir. 2014).
19