Ndayshimiye v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-24-2009
Ndayshimiye v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-3201
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-3201
_____________
JEAN BOSCO NDAYSHIMIYE;
SPECIOSE MUREKATETE,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________
On Review of a Decision of the Board of Immigration Appeals
(BIA No. A97-529-530 and A97-529-529)
Immigration Judge: Mirlande Tadal
_____________
Argued November 17, 2008
Before: SCIRICA, Chief Judge, FUENTES, and HARDIMAN,
Circuit Judges
(Opinion Filed: February 24, 2009)
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Kelly A. Carrero (Argued)
Matthew V. Barter
William J. Hine
Jones Day
222 East 41 st Street
New York, NY 10017-0000
Attorneys for Petitioners
Julie M. Iversen (Argued)
Allen W. Hausman
Margaret J. Perry
Jeffrey S. Bucholt
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
Richard D. Steel
Deborah E. Anker
Harvard Immigration and Refugee Clinical Program
1563 Massachusetts Avenue
Cambridge, MA 02138
Amicus Curiae for the Court
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Rwandan citizens Jean Bosco Ndayshimiye and his wife
Speciose Murekatete sought asylum in the United States in 2006,
alleging that they had suffered persecution at the hands of
Ndayshimiye’s aunt in Rwanda. They now petition for review of
the Board of Immigration Appeals’ (“BIA”) decision rejecting their
application for asylum. Petitioners asserted before the BIA that
although their mistreatment was precipitated by a 2004 land dispute
with Ndayshimiye’s aunt, it was also caused by their status as
recent immigrants to Rwanda from Burundi, where they had been
born after their Rwandan parents fled there in the 1960s. Based on
the fact that Ndayshimiye had a relatively peaceful relationship
with his aunt for the eight years following Petitioners’ return to
Rwanda in 1996, the BIA concluded that any persecution occurring
after 2004 was motivated solely by the land dispute. Although the
BIA’s interpretation of the statutory standard for analyzing possible
“mixed motives” persecution was partially in error, its rationale
that petitioners’ Burundian background was at most incidental to
other reasons for their persecution does support the Board’s
ultimate conclusion even under the corrected standard. Therefore,
we will deny the petition.
I.
Petitioners Ndayshimiye and Murekatete were born in
Burundi, but are Rwandan citizens since their parents were
originally Rwandan but fled from that country in the 1960s. They
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are of Tutsi ethnicity. In 1996 they both returned to Rwanda along
with several hundred thousand other Rwandan refugees who are
known as “old case-load” refugees. These former refugees have
different social status in Rwandan society depending on the country
from which they have repatriated; those from Burundi apparently
have very little influence or power and are resented by Rwandans
who did not flee.
When Petitioners returned to Rwanda, Ndayshimiye made
contact with some relatives who had remained in the country. One
of them, his uncle Frederick Karuranga, deeded Ndayshimiye a
parcel of land on which to build a home. Ndayshimiye put off
construction for financial reasons.
In 2004, two years after Karuranga’s death, Petitioners
began building a home on the lot. Ndayshimiye’s aunt, Primitive
Musabwasoni, contested their right to the land, telling Ndayshimiye
that he was not a member of the family and that he should go back
to Burundi. She also attempted to sell the land to someone else for
a significant sum of money. Musabwasoni is well-connected in
Rwandan society; among her children are Reverien Claude
Rugwizangoga (“Reverien”), a major in the Rwandan national
police, John Fayinzoga, the chairman of a commission to
demobilize the Rwandan army, and Gilbert Twgirunukiza, an
executive in the president’s office.
Ndayshimiye filed a complaint concerning the land dispute
before a community tribunal, which resolved the matter in his favor
in November 2004. Around March 2005, Ndayshimiye began
receiving anonymous phone calls several times a week on his work
phone in which he was told that he was not Rwandan, was stealing
land that did not belong to him, and must return to Burundi.
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Ndayshimiye recognized the voice on some of the phone calls as
his aunt’s son, Reverien. In one call, the speaker said that if
Ndayshimiye’s family did not return to Burundi on their own they
would be thrown into the Akagera River to return there. Petitioners
construe this threat as a reference to the 1994 Rwandan genocide,
during which massacred Tutsis were dumped into the Akagera.
These phone calls lasted through June 2006. Murekatete also
received calls in June 2006, at Petitioners’ home, on which she
identified Reverien’s voice.
Frightened of the possible consequences, Ndayshimiye did
not resume construction on the land despite his legal victory. Nor
did he seek protection from the authorities, believing that the
influence of Musabwasoni and her sons in the government, along
with his own low social status, would render that attempt futile.
Ndayshimiye and Murekatete remained in a rental property about
thirty minutes away from the disputed land.
Despite their inaction regarding the land, on three occasions
in May and June 2006 Reverien came to Petitioners’ residence at
night in his police uniform, armed and accompanied by other
armed police officers. Each time, he identified himself as a member
of the police and asked for Ndayshimiye. Upon being told that
Ndayshimiye was working, Reverien told Murekatete that her
husband was Burundian, not Rwandan, and must go back. On the
third visit, Reverien said, “If you don’t want to go back when it’s
good, you’re going back badly.” (A.R. 229.)
Because of these threats, Petitioners sought to leave
Rwanda. They did not want to return to Burundi because of
ongoing ethnic tensions there and the possibility of civil conflict.
Ndayshimiye, who worked as a driver at the United States embassy,
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was invited by a U.S. citizen to visit his home in Virginia and
obtained tourist visas for himself, his wife, and their children to go
to the United States. During Reverien’s second visit to Petitioners’
house, he searched Murekatete’s purse and found her American
visa. At that point Reverien asked Murekatete if she had told
Ndayshimiye yet that he must return to Burundi.
Petitioners entered the United States on September 11, 2006.
Upon arrival, they were informed that their visas had been
cancelled in June 2006, apparently because a co-worker of
Ndayshimiye’s at the U.S. embassy in Rwanda had told the State
Department that Petitioners were selling off their belongings and
were not planning to return to Rwanda when their visas expired.
That co-worker reportedly also worked with the Rwandan national
police. Ndayshimiye and Murekatete believed Musabwasoni and
Reverien had orchestrated the cancellation of their visas through
the co-worker. They were afraid to return to Rwanda because of the
possibility of further persecution and thus sought refuge in the
United States. They applied for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”).
To be granted asylum, Petitioners were required to show that
they were “unable or unwilling” to return to Rwanda “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42). After a merits
hearing, an Immigration Judge (“IJ”) denied Petitioners’
applications on January 4, 2007. That ruling rested primarily on the
IJ’s finding that Ndayshimiye and Murekatete had failed to show
that Musabwasoni’s past persecution was motivated by their
imputed nationality or social group. The IJ reviewed Petitioners’
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case under the statutory “mixed-motives” standard of the
Immigration and Nationality Act (“INA”) § 208(b)(1)(B)(i), 8
U.S.C. § 1158(b)(1)(B)(i). That provision was enacted in 2005 as
part of the REAL ID Act to permit asylum for an applicant who
could establish that, even if a persecutor had more than one motive,
“race, religion, nationality, membership in a particular social group,
or political opinion was or will be at least one central reason for
persecuting the applicant.” Id. The IJ concluded that nationality
and/or social group had played no part in the threats against
Petitioners. She found that the land conflict alone, a simple “family
dispute,” instigated the friction between Ndayshimiye and his aunt.
(A.R. 68.) The IJ’s opinion included no conclusion as to
Ndayshimiye’s or Murekatete’s credibility.
Petitioners appealed this decision to the BIA on January 18,
2007. The BIA affirmed in a published precedential opinion. In re
J– B– N– & S– M–, 24 I. & N. Dec. 208 (B.I.A. 2007). In
interpreting § 208, the BIA reasoned that, though “central” may be
defined as “having dominant power, influence, or control,”
Congress’s use of the phrase “one central reason” rather than “the
central reason” indicated that under § 208 a protected ground need
not be the single dominant reason for an applicant’s persecution.
Id. at 212-13. Next, the BIA turned to the conference report for the
REAL ID Act, which states that a protected ground is not a
“central” reason if it is simply “incidental or tangential to the
persecutor’s motivation.” Id. at 213 (quoting H.R. Rep. No. 109-
72, at 163 (2005)). Relying on dictionary definitions of “incidental”
and “tangential,” the BIA construed § 208 to require an applicant
for asylum to show that a protected ground is more than
“incidental, tangential, superficial, or subordinate to another reason
for harm.” In re J– B– N– & S– M–, 24 I. & N. Dec. at 213.
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Based on this reading of the statute, the BIA held that, even
taking Petitioners’ testimony as true, Ndayshimiye’s conflict with
his aunt was “fundamentally a personal dispute” motivated by
Musabwasoni’s desire to obtain Ndayshimiye’s land and sell it for
a profit, with any prejudice related to Petitioners’ Burundian
background playing an “incidental” role. Id. at 215-16. Therefore,
the BIA dismissed Petitioners’ appeal as to the asylum ruling, also
concluding that they were not entitled to withholding of removal or
relief under CAT. Id. at 217. On July 23, 2007, Petitioners timely
filed a petition for review of the BIA’s decision with this court,
arguing that their asylum application should have been granted.1
II.
Review of the BIA’s interpretation of § 208 is de novo,
though we must defer to its reading of the statute where appropriate
under Chevron v. Natural Resources Defense Council, 467 U.S.
837 (1984). Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).
We review the BIA’s factual determinations under the substantial
evidence standard, affirming them unless the record evidence
would compel any reasonable factfinder to conclude to the
contrary. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003).
III.
An alien will be granted asylum in the United States only if
1
Although Petitioners ostensibly challenge the denial of
their CAT claim (Opening Br. of Petrs. 2 n.1, 15, 19-20), they do
not present any grounds for rejecting the BIA’s conclusion that
they face no clear probability of torture if returned to Rwanda. (See
generally id.)
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he or she is a “refugee” who is “unable or unwilling” to return to
his or her native country “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42); see also Immigration & Naturalization Serv.
v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (holding that
persecution “on account of” a protected category must be “because
of” that category). Therefore, a key task for any asylum applicant
is to show a sufficient “nexus” between persecution and one of the
listed protected grounds.
Prior to the passage of the REAL ID Act in 2005, there was
no statutory standard for judging whether persecution was “on
account of” a protected characteristic where other, unprotected
motivations might explain an applicant’s persecution. The BIA and
the courts, however, interpreted § 1101(a)(42) to allow for “mixed-
motive” persecution, as long as the applicant’s protected status was
at least one of the causes of the persecution. See Singh v. Gonzales,
406 F.3d 191, 196 (3d Cir. 2005); In re S– P–, 21 I. & N. Dec. 486,
495 (B.I.A. 1996). Along with other circuits, we resolved that an
applicant need only show that his or her persecution was caused “at
least in part” by membership in a protected group. See Chang v.
Immigration & Naturalization Serv., 119 F.3d 1055, 1065 (3d Cir.
1997); see also Deloso v. Ashcroft, 393 F.3d 858, 860-61 (9th Cir.
2005); Mihaylov v. Ashcroft, 379 F.3d 15, 22 (1st Cir. 2004).
In 2005, Congress passed the REAL ID Act. Among other
things, the Act amended the INA to include a standard for
evaluating evidence of persecution based on mixed motives. As
noted above, the paragraph inserted into § 208 provides that an
“applicant must establish that race, religion, nationality,
membership in a particular social group, or political opinion was
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or will be at least one central reason for persecuting the applicant.”
8 U.S.C. § 1158(b)(1)(B)(i), INA § 208 (b)(1)(B)(i). Petitioners
now call into question the BIA’s interpretation of that “one central
reason” standard as requiring an asylum applicant to show that a
protected characteristic was more than “incidental, tangential,
superficial, or subordinate to another reason for” his or her
persecution.
A.
In examining the BIA’s interpretation of § 208, we must
apply the two-step inquiry set out in Chevron. The first step
requires us to decide “whether Congress has directly spoken to the
precise question at issue.” 467 U.S. at 842. If the plain language of
the statute is ambiguous, we proceed to the second step and
determine whether the BIA’s reading of the provision is a
reasonable one. Id. at 844. If so, we must let the interpretation
stand.
We conclude that the BIA’s interpretation of the “one
central reason” standard is in error only to the extent that it would
require an asylum applicant to show that a protected ground for
persecution was not “subordinate” to any unprotected motivation.
That particular term is inconsistent with the plain language of the
statute, cutting off our Chevron analysis at step one.
Section 208’s use of the phrase “one central reason” rather
than “the central reason,” which, as amicus points out, was a
deliberate change in the drafting of this provision, demonstrates
that the mixed-motives analysis should not depend on a hierarchy
of motivations in which one is dominant and the rest are
subordinate. See Amicus Br. 8-10; In re J– B– N– & S– M–, 24 I.
& N. Dec. at 212-13. This plain language indicates that a
persecutor may have more than one central motivation for his or
her actions; whether one of those central reasons is more or less
important than another is irrelevant. The BIA acknowledged this in
refusing to define a central reason within the meaning of § 208 as
a “dominant” motivation. Id. at 212. The same logic forbids an
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interpretation that would impose a mirror image of the rejected
“dominance” test: the requirement that a protected ground, even if
a “central” reason for persecution, not be subordinate to any other
reason.
It is true that some cases have already cited the BIA’s
interpretation of § 208 without objection to its form. See Singh v.
Mukasey, 543 F.3d 1, 5 (1st Cir. 2008); Gomez-Zuluaga v. Att’y
Gen., 527 F.3d 330, 340, 345 (3d Cir. 2008); Parussimova v.
Mukasey, 533 F.3d 1128, 1135 (9th Cir. 2008); Abdel-Rahman v.
Gonzales, 493 F.3d 444, 453 n.12 (4th Cir. 2007). However, of
these cases, only Parussimova discussed the mixed-motives
standard at any length, and it implicitly supports the excision of the
word “subordinate.” In Parussimova, though Judge O’Scannlain
briefly referred to the BIA’s construction of § 208, he went on to
state:
[A]n asylum applicant need not prove that a
protected ground was the only central reason for the
persecution she suffered. The Act requires that a
protected ground serve as “one central reason” for
the persecution, naturally suggesting that a
persecutory act may have multiple causes. Second,
an applicant need not prove that a protected ground
was the most important reason why the persecution
occurred. The Act states that a protected ground
must constitute “at least one” of the central reasons
for persecutory conduct; it does not require that such
reason account for 51% of the persecutors’
motivation.
533 F.3d at 1134 (emphasis added). Though our disapproval of the
term “subordinate” is based on a plain reading of the language of
§ 208, Congress’s goal of “resolv[ing] conflicts between fora” by
enacting this provision also weighs in favor of a mixed-motives
standard that is consistent with this passage from Parussimova.
H.R. Rep. No. 109-72, at 162.
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Once the word “subordinate” is removed, we are left with
the BIA’s reading of § 208 as dictating that asylum may not be
granted if a protected ground is only an “incidental, tangential, or
superficial” reason for persecution of an asylum applicant. This
corrected definition is consistent with the language of the statute.2
“Central” is relevantly defined as “of primary importance,”
“essential,” or “principal.” See Parussimova, 533 F.3d at 1134
(citing Merriam-Webster’s Collegiate Dictionary 201 (11th ed.
2003); American Heritage Dictionary 302 (4th ed. 2000)). These
definitions are a reasonable foundation for the BIA’s conclusion
that Congress, in including the term “central,” meant to preclude
asylum where a protected ground played only an incidental,
tangential, or superficial role in persecution. See also Merriam-
Webster’s Collegiate Thesaurus 117 (1988) (listing “peripheral” as
antonym of “central”); Roget’s 21st Century Thesaurus 618 (3d ed.
2005) (listing “incidental,” “tangential,” and “superficial” as
synonyms of “peripheral”). In fact, the BIA derived its
interpretation from Congress’s own words: the conference report
for the REAL ID Act stated that the language of § 208 was “almost
identical” to a previously proposed regulation that would require a
protected characteristic to be more than “incidental or tangential to
the persecutor’s motivation.” H.R. Rep. No. 109-72, at 163 (citing
65 Fed. Reg. 76,588, 76,592 (Dec. 7, 2000)).
By contrast, the plain meaning of this provision and the
2
This interpretation does not, as Petitioners fear, have any
impact on what type of evidence an IJ may require to show
persecution on a protected ground. 8 U.S.C. § 1158(b)(1)(B)(ii)
makes clear that an asylum applicant’s credible account may be
sufficient to prove that a protected characteristic is one central
reason for persecution of the applicant. See also In re J– B– N– &
S– M–, 24 I. & N. Dec. at 214 (stating that “testimonial evidence”
alone may be used to meet burden of showing persecutors’
motivation).
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accompanying conference report contradict Petitioners’ suggestion
that § 208 simply adopts the pre-2005 requirement that persecution
have been motivated “at least in part” by a protected ground.
Foremost, the word “central” would be rendered superfluous if
asylum could be granted where a protected ground played any part,
no matter how small, in motivating the persecution of the applicant.
See United States v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005)
(“[C]ourts should construe statutory language to avoid
interpretations that would render any phrase superfluous.”).
Additionally, the conference report cites only pre-enactment
cases going beyond the “at least in part” threshold as consonant
with the new statutory standard. H.R. Rep. No. 109-72, at 163
(referring to opinions requiring that persecution be motivated “in
meaningful part” or “primarily” by a protected ground and another
case denying asylum where persecution stemmed “mainly” from
some other motivation) (quoting Girma v. Immigration &
Naturalization Serv., 283 F.3d 664, 668 (5th Cir. 2002);
Ambartsoumian v. Ashcroft, 388 F.3d 85, 91 (3d Cir. 2004);
Useinovic v. Immigration & Naturalization Serv., 313 F.3d 1025,
1033 (7th Cir. 2002)). While the report does note that the “statutory
standard [of § 208] is . . . in keeping with decisions of reviewing
courts,” H.R. Rep. No. 109-72, at 163 (2005), the same paragraph
states that before the enactment of the REAL ID Act, there was “no
uniform standard for assessing motivation,” and goes on to make
clear that only certain pre-2005 opinions are being given legislative
sanction. In particular, the report expresses disapproval of Borja v.
Immigration & Naturalization Service, 175 F.3d 732 (9th Cir.
1999) (en banc), a case that relied on the “at least in part” standard.
Id. at 736; see also Parussimova, 533 F.3d at 1134 (holding that the
enactment of the “one central reason” standard invalidates the
Ninth Circuit’s prior “at least in part” analysis).
Therefore, we hold that once the term “subordinate” is
removed, the BIA’s interpretation constitutes a reasonable, valid
construction of § 208’s “one central reason” standard.
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B.
Regardless of the BIA’s misstep in interpreting § 208, its
denial of Petitioners’ application for asylum still stands because it
was based on a finding that their Burundian origin was no more
than an incidental factor in their persecution, a finding that is
supported by substantial evidence in the record. See Gomez-
Zuluaga, 527 F.3d at 340. Remand for reconsideration under the
corrected mixed-motives standard is therefore not necessary.
See Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005) (denying
petition for review of immigration judge’s decision without a
remand, despite legal error, because result was still supported by
substantial evidence); Mahmood v. Gonzales, 427 F.3d 248, 253
(3d Cir. 2005) (holding remand unnecessary where outcome is
clear as a matter of law).
Applicants for asylum bear the burden of providing “some
evidence of [a motive based on a statutorily protected ground],
direct or circumstantial.” Elias-Zacarias, 502 U.S. at 483. Here, the
BIA affirmed the IJ’s holding that Petitioners had not satisfied that
burden based on their own testimony that they had enjoyed a
conflict-free relationship with Musabwasoni for eight years,
without evidence of persecution or harassment of any kind. Only
in 2004, when the land dispute arose, did Musabwasoni exhibit any
hostility toward Petitioners. Even once this conflict began, the
record contains just a few remarks by Petitioners’ alleged
persecutors referencing their Burundian background, always in the
context of telling Petitioners to return to Burundi so that
Musabwasoni could take the land.3
3
The scenario postulated by the amicus brief, in which a
shopkeeper in Nazi Germany peacefully coexists with a
neighboring Jewish merchant until some business conflict arises,
but then vandalizes the Jewish merchant’s shop with religious
slurs, is well taken. See Amicus Br. 13. Where such strong
evidence of religious hatred in addition to another, non-protected
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Given these facts, it was reasonable for the BIA to conclude
that even if Reverien’s remarks suggested that Petitioners’
persecution might be based on their Burundian background, the
eight years of prior peace between Petitioners and Musabwasoni
dispelled any inference that such animus was a significant reason
for their conflict. Cf. Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir.
2005) (holding that the use of an ethnic slur during an otherwise
ordinary robbery was not enough to show that the robbers acted
because of their victim’s ethnicity); Amanfi v. Ashcroft, 328 F.3d
719, 724 (3d Cir. 2003) (determining that there had been no
persecution where men took the asylum applicant captive after his
father, the head of a Christian ministry, denounced their religious
practices, as this was simply a “private dispute”).4
Petitioners argue that Ndayshimiye’s and Murekatete’s
Burundian background was inextricably intertwined with the
underlying land dispute, not “incidental” to it: Musabwasoni’s
resentment of Ndayshimiye for reentering the family and taking
land that she apparently viewed as rightfully hers cannot be wholly
separated from the fact that Ndayshimiye had been out of contact
with his Rwandan relatives exactly because his parents fled to
Burundi. However, we have previously held in Ambartsoumian v.
Ashcroft, 388 F.3d 85 (3d Cir. 2004), that such factually
intertwined explanations for persecution are irrelevant where the
proximate motivation for mistreatment of an applicant is not a
motivation is available, it might compel a finding of persecution
based on a protected ground. In this case, however, there is simply
not the same level of evidence in the record to support Petitioners’
claims.
4
Although these cases pre-date the passage of the REAL ID
Act, they remain valid. Lie and Amanfi were denied asylum even
under the forgiving “at least in part” standard; to grant asylum to
Ndayshimiye and Murekatete under the more demanding “one
central reason” test would be illogical.
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protected ground.
In Ambartsoumian, Garegin Ambartsoumian, an Armenian
man who had been living in Ukraine, sought asylum based on an
allegation that he had been persecuted in Ukraine because of his
ethnicity. Id. at 91. The court held that any persecution stemmed
from Ambartsoumian’s inability to speak Ukrainian and his lack of
a residency permit to live in Ukraine. Id. Although both of those
circumstances could be traced to the fact that Ambartsoumian was
Armenian, the court concluded that the adverse treatment he faced
did not qualify as “ethnic persecution.” 5 Id.Ambartsoumian thus supports the BIA’s decision here. Just
as Ambartsoumian’s illegal resident status and his lack of fluency
in Ukrainian were a product of his non-Ukrainian background,
Petitioners’ conflict with Ndayshimiye’s aunt came about in part
because their absence from Rwanda left them disconnected from
the family members who had remained there. Yet
Ambartsoumian’s persecutors would presumably have acted
regardless of which particular country he actually came from;
similarly, Musabwasoni and her sons seem to have been motivated
at most by their resentment of the usurpation of family property by
“outsiders,” regardless of where those outsiders might have been
5
Petitioners attempt to distinguish Ambartsoumian on the
grounds that in that case the IJ found that Armenians did not
generally face persecution in Ukraine, a finding that is absent here.
However, Ambartsoumian simply referred to that evidentiary
deficit as an alternative rationale for upholding the IJ’s decision to
deny asylum. The opinion affirmed the IJ’s two separate findings,
that Armenians did not generally face persecution in the Ukraine
and that Ambartsoumian in particular was persecuted for reasons
besides his ethnicity, as both “well supported” by the evidence,
indicating that either would have sufficed as a basis for the ultimate
result. 388 F.3d at 91.
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born.6
Parussimova offers yet another example reinforcing our
approach to mixed-motive persecution cases in the wake of the
REAL ID Act. In that case, the Ninth Circuit rejected an asylum
application similar to that of Ndayshimiye and Murekatete.
Parussimova, a Kazakhstani citizen of Russian heritage, had been
attacked by two men while walking alone on the street. They
berated her for her work with an American company (evidenced by
a pin from the company that she was wearing at the time) and told
her she was a Russian pig and had to get out of the country. 533
F.3d at 1131. The court held that although her assailant’s use of an
insult related to Parussimova’s Russian heritage showed “that the
men were aware of [her] ethnicity and used it as a means to
degrade her,” there was no evidence in the record of a “causal
connection between [Parussimova’s Russian ethnicity] and the
men’s attack or the threats that followed afterwards.” Id. at 1135.
Similarly, in this case the use of threats referencing Petitioners’
Burundian background does not prove that their nationality was a
cause of their persecution.
Our existing precedent affirms the BIA’s denial of asylum
here. Furthermore, the BIA’s use of an erroneous standard was
harmless, as its opinion did not rest on a finding that Petitioners’
6
We can confidently rely on the reasoning in
Ambartsoumian because it was specifically cited with approval in
the conference report’s discussion of the new mixed-motives
standard. H.R. Rep. No. 109-72, at 163. The conference report did
cite Ambartsoumian specifically for its phrasing of the mixed-
motives standard, rather than expressing approbation of all aspects
of the opinion. However, even if Congress cited the case without
regard to the actual result, Ambartsoumian remains good Third
Circuit law since it was evaluated under an analytical approach
that is “in keeping with” the standard of § 208. H.R. Rep. No. 109-
72, at 163 .
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Burundian background was subordinate to other reasons for
persecution. Rather, the BIA determined that Petitioners’ roots in
Burundi played only a “tangential” or “incidental” role in their
persecution. In re J– B– N– & S– M–, 24 I. & N. Dec. at 216.
Ndayshimiye and Murekatete have not pointed to any evidence that
would compel us to overturn this reasonable conclusion.
Petitioners’ allegation that Musabwasoni was responsible
for the cancellation of their visas is insufficient to undermine the
BIA’s decision. There is nothing in the record supporting what
Ndayshimiye has admitted is simply his own belief regarding how
the visas came to be cancelled, whereas the government has
provided evidence that it simply acted on independent information
that Petitioners intended to overstay their visas. We additionally
find it difficult to reconcile Petitioners’ insistence that
Musabwasoni wanted them to leave so she could take possession
of their land with the idea that she would stand in the way of their
departing Rwanda for the United States.
Finally, though we recognize the BIA’s error in referencing
a non-existent “political group” claim while failing to explicitly
address Petitioners’ social group claim, the BIA’s decision does
indicate that it considered Ndayshimiye’s and Murekatete’s
Burundian nationality and their status as repatriated refugees to be
intertwined. See In re J– B– N– & S– M–, 24 I. & N. Dec. at 209
n.2. Furthermore, the BIA clearly concluded that Petitioners’
Burundian background, whether it is described as their imputed
nationality or their social status as old case-load refugees, played
no central role in their persecution. Id. at 216 (citing lack of
evidence that Petitioners’ “Burundian origins or their status as
repatriated refugees was more than a tangential motivation for the
threats against them”) (emphasis added). Therefore, the BIA’s
failure to mention the “social group” claim by name does not
prevent us from “meaningfully review[ing] its decision” and
affirming it on the same grounds as the nationality claim. Vente v.
G onzales, 415 F.3d 296, 302-03 (3d C ir. 2005).
Compare Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 290
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(3d Cir. 2007) (finding IJ’s decision inadequate because it did not
address asylum applicant’s ground for persecution by name and
because actual analysis of whether persecution had nexus to
protected ground was conclusory).
IV.
For the foregoing reasons, we will deny the petition for
review.
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