Muda v. Holder ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1666
HALIT MUDA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 3, 2009 Decided: November 18, 2009
Before MOTZ and SHEDD, Circuit Judges, and Jane R. ROTH, Senior
Circuit Judge of the United States Court of Appeals for the
Third Circuit, sitting by designation.
Petition for review granted; vacated and remanded by unpublished
per curiam opinion.
Andrew P. Johnson, LAW OFFICES OF ANDREW P. JOHNSON, New York,
New York, for Petitioner. Gregory G. Katsas, Assistant Attorney
General, Civil Division, William C. Peachey, Assistant Director,
Office of Immigration Litigation, Ada E. Bosque, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Halit Muda (“Muda”) seeks review of orders of an
Immigration Judge (“IJ”) and the Board of Immigration Appeals
(“BIA”) that he failed to provide sufficient corroborating
evidence supporting his claims for asylum and withholding of
removal. We cannot, on the basis of the IJ and BIA’s incomplete
analysis, conclude that substantial evidence supports their
holdings. Therefore, we grant Muda’s petition for review,
vacate the order of removal and remand for further proceedings.
I.
Soon after leaving his home country of Albania for the
United States in May 2005, Muda applied for asylum, withholding
of removal, and protection under the United Nations Convention
Against Torture (“CAT”). 1 Muda maintains that he suffered
persecution in Albania and harbors a well-founded fear of future
persecution should he be sent back. This persecution allegedly
arises from (1) his and his father’s membership in Albania’s
Democratic Party (“DP”), and (2) his family’s efforts to regain
property confiscated by Albania’s socialist government.
1
Muda did not appeal the IJ’s denial of his CAT claim; this
precludes our review of the claim. See Massis v. Mukasey, 549
F.3d 631, 638 (4th Cir. 2008).
2
At his immigration hearing, Muda testified that he joined
the DP in 2000 and participated in many of its protests and
rallies. Because of these activities, the police beat,
detained, or threatened him on several occasions. After a rally
in 2003, in which Muda criticized a leader of the Socialist
Party, relatives of that leader beat Muda “very badly” and
threatened that, if he did not end his criticism, Muda would
“end up dead.” That same year, the socialist mayor of Muda’s
hometown, against whom Muda’s father had recently campaigned,
told Muda’s father that he would “continue to exercise
persecution against him.” Soon after, police searched Muda’s
home “without giving . . . the reason” and “made [the family]
feel very intimidated.”
Muda also testified that he and his family suffered
persecution as a result of their efforts to regain confiscated
property. In December 2004, Muda signed a petition in support
of “Property with Justice,” an organization devoted to solving
Albania’s land confiscation problems. The signers of the
petition received threats, “but nothing was done” by police.
After his father filed a lawsuit to regain the property, a group
tied to the local socialist government kidnapped and beat his
father, threatening that if he continued to demand the land, “he
would die.” Similar groups targeted Muda on two occasions,
surrounding him in the street, holding him at gunpoint, and
3
threatening him with death. In April 2005, one month before
fleeing to the United States, Muda “received the worst beating
[of his] life” at the hands of such a group, who held a knife to
his throat and beat him for ten minutes, resulting in facial
“cuts and lacerations” and “marks and wounds all over [his]
body.” After Muda left Albania, members of the group visited
his home, asked his mother and aunt about his whereabouts, and
broke his aunt’s knee when they learned he had left Albania.
The family repeatedly, but unsuccessfully, sought help from
police, who said more evidence was needed to pursue any action.
In an oral opinion issued the same day as the hearing, the
IJ denied Muda’s application. Although she concluded that Muda
was “credible” and “provided detailed testimony . . . largely
consistent with his prior statements,” she held that Muda failed
to meet his burden of proof for asylum under 8 U.S.C. §
1158(b)(1)(B)(ii) (2006) of the Immigration and Nationality Act
(“INA”) because he failed to provide certain corroborating
evidence. Specifically, the IJ observed that Muda offered “no
letter from anyone else who signed the petition or received
threats,” no letter from his mother or aunt regarding the
ongoing threat to Muda in Albania, “very limited corroboration
concerning the efforts made by [Muda] and his family to assert
4
their property rights,” and “a lack of corroboration on the
failure of the police or government to protect [Muda].” 2
Due to the missing evidence, and despite substantial
documentary evidence submitted by Muda, 3 the IJ determined that
she could not assess “whether or not th[e April 2005 death
threat] . . . is part of a pattern that supports a well-founded
fear of future persecution,” whether the land dispute
“represents a protected ground” under the INA, or “whether the
police response was legitimate under the circumstances.”
Because Muda failed to meet the burden of proof for asylum, he
failed to meet the higher burden for withholding of removal.
2
When questioned, Muda testified that he did not submit
letters from the other petition-signers because he feared that
such letters would place them in danger. As to the lack of
letters from his aunt and mother, Muda testified that he asked
for a letter only from “the head of the household, just my dad.”
The IJ did not address these explanations or make a ruling on
the availability of the evidence.
3
Muda submitted a letter from his father stating that
socialists “threatened [Muda’s] life and beat him severely on
several occasions”; notarized certifications from the Albanian
government stating that the socialists confiscated his family’s
land and persecuted his family; notarized certifications
confirming Muda’s membership in “Property with Justice” and the
DP; a notarized certification from the doctor who treated Muda
after his April 2005 beating; a statement from Muda’s friend
stating that “property disputes . . . ma[de] impossible Halit’s
stay in Albania”; and a 2005 U.S. State Department country
report finding no evidence that the Albanian government had
resolved any of the complaints it received that year regarding
compensation for confiscated property.
5
Through a single member, the BIA denied Muda’s appeal,
affirming the IJ’s ruling and concluding that Muda had failed to
show that the missing evidence was “reasonably unavailable” to
him. Muda timely petitioned this court for review.
II.
Under the INA, “[a]pplicants bear the burden of proving
eligibility for asylum.” Naizgi v. Gonzales, 455 F.3d 484, 486
(4th Cir. 2006). To meet this burden, an applicant must prove
that he is a “refugee,” defined as one “unable or unwilling to
return to . . . [his] country because of [past] persecution or a
well-founded fear of [future] persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1258(a)
(2006). If the applicant establishes past persecution, a well-
founded fear of future persecution is presumed. 8 C.F.R. §
208.13(b)(1) (2009). “Persecution involves the infliction or
threat of death, torture, or injury to one’s person or freedom,
on account of one of the enumerated grounds in the refugee
definition.” Qiao Hua Li v. Gonzales, 405 F.3d 171, 177 (4th
Cir. 2005).
The REAL ID Act of 2005, which amended the INA, applies to
Muda’s application. See Pub. L. No. 109-13, § 101(h)(2), 119
Stat. 231, 305 (2005). Under these amendments, an applicant’s
6
testimony alone may sustain his burden of proof if the IJ finds
such testimony credible, persuasive, and specific. 8 U.S.C. §
1158(b)(1)(B)(ii). However, even if the IJ finds the testimony
credible, she may require the applicant to provide additional
corroborating evidence “unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.” Id.Because “[t]he substantial evidence test applies[,] . . . a
reviewing court must accept the IJ’s determinations with respect
to the . . . availability of corroborating evidence[] and the
effect of non-production unless the record compels a contrary
conclusion.” Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008).
Thus, a reviewing court must uphold an agency decision “unless
any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (2006).
“Because the BIA affirmed the IJ's order and supplemented
it, . . . both decisions are subject to judicial review.” Niang
v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007).
III.
Muda contends that substantial evidence does not support
the conclusion that he failed to meet his burden of proof
because the IJ and BIA failed to give proper weight to his
significant corroborating evidence. Unfortunately, because the
IJ and BIA failed to analyze, or even mention, past persecution
7
in Albania -- and thus failed to analyze how the missing
evidence affected Muda’s ability to demonstrate past persecution
-- we cannot determine whether substantial evidence supports the
denial of relief. 4
In SEC v. Chenery Corp., 318 U.S. 80, 95 (1943), the
Supreme Court held that “an administrative order cannot be
upheld unless the grounds upon which the agency acted in
exercising its powers were those upon which its action can be
sustained.” The Court later elucidated “an important corollary”
to this rule: “If the administrative action is to be tested by
the basis upon which it purports to rest, that basis must be set
forth with such clarity as to be understandable.” SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947).
Under the Chenery rules, we cannot affirm the agency’s
finding of no past persecution when it failed to make such a
finding. See Cao He Lin v. DOJ, 428 F.3d 391, 400 (2d Cir.
2005) (“To assume a hypothetical basis for the IJ's
determination, even one based in the record, would usurp her
role.”); cf. Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.
4
Because the IJ rested her denial of Muda’s withholding of
removal claim on her unsupported and unexplained denial of his
asylum claim, we also cannot conclude that substantial evidence
supported such denial.
8
2006) (holding that IJs must provide “specific, cogent
reason[s]” for their credibility findings).
While there is some indication that the IJ and BIA
considered past persecution, their discussion of the two
asserted key pieces of missing evidence (letters from petition-
signers and Muda’s aunt or mother) focused exclusively on the
well-founded fear of future persecution question. We cannot
tell what effect the agency believed this missing evidence had
on Muda’s showing of past persecution. (Nor can we discern
whether the agency determined that other missing evidence --
regarding property disputes -- in and of itself rendered Muda
unable to demonstrate past persecution.) In sum, we cannot find
in the agency’s rulings any conclusion -- or any explanation for
a conclusion -- that Muda’s credible testimony and voluminous
documentary evidence failed to sustain his burden of proof as to
past persecution. 5
5
Further, “[t]he absence of reasoned discussion of past
persecution undercuts any meaningful review of the IJ's fear of
future persecution finding, because we do not know whether
[Muda] should have had the benefit of the regulatory presumption
of fear of persecution based on prior events.” El Moraghy v.
Ashcroft, 331 F.3d 195, 204-05 (1st Cir. 2003) (citing 8 C.F.R.
§ 208.13(b)(1)); see also Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1377 (11th Cir. 2006). Therefore, we do not reach Muda’s claim
that the agency erred in finding that he had not shown a well-
founded fear of future persecution.
9
The agency’s failure to address past persecution precludes
us from upholding its denial of relief because such a result
would require us to substitute our reasoning for the agency’s.
See Chenery, 318 U.S. at 88 (“[A] judicial judgment cannot be
made to do service for an administrative judgment.”). Instead,
we must remand the case to the agency for its determination in
the first instance. See Zuh v. Mukasey, 547 F.3d 504, 513 (4th
Cir. 2008). 6
IV.
“We would run the risk of violating fundamental separation-
of-powers principles if we attempted to divine the [agency’s]
thoughts on this matter and tried to build a legal conclusion in
6
The IJ and BIA also failed to provide any explanation for
a finding that Muda could “reasonably obtain” the missing
corroborating evidence, 8 U.S.C. § 1158(b)(1)(B)(ii), or that
the facts Muda could not prove without such evidence were
“central to his . . . claim and easily subject to verification.”
Matter of J-Y-C, 24 I&N Dec. 260, 263 (BIA 2007) (internal
quotation marks omitted). Despite testimony from Muda as to the
unavailability of the missing evidence, the IJ made no finding
as to availability, and neither the IJ nor the BIA provided any
explanation supporting such a finding. And despite language in
the BIA’s own interpretation of the 2005 amendments, which
suggests that it will only require further evidence to
corroborate central and easily verifiable facts –- language that
the BIA itself quoted in denying Muda’s claim -- the IJ and BIA
failed to conduct any analysis, or announce any conclusion, as
to centrality or verifiability. “We are not to invent
explanations that may justify the [agency’s] conclusion.” Dia
v. Ashcroft, 353 F.3d 228, 260 (3d Cir. 2003).
10
a veritable vacuum where [agency] interpretation should always
first exist.” Li Fang Lin v. Mukasey, 517 F.3d 685, 694 (4th
Cir. 2008). Accordingly, we must grant Muda’s petition for
review and remand to the BIA for further proceedings consistent
with this opinion. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
11