Riyaz Mogloo v. Loretta E. Lynch , 635 F. App'x 348 ( 2015 )

FILED
NOT FOR PUBLICATION NOV 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIYAZ AHMED MOGLOO, No. 12-71230
Petitioner, Agency No. A088-393-493
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Riyaz Mogloo, a citizen of India, petitions this court for review of the decisions
of the Board of Immigration Appeals (“BIA”) and the immigration judge (“IJ”)
denying his application for asylum, withholding of removal, and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture.1 Specifically, they found that Mogloo was not credible
and, even if he was, that he did not establish past persecution or a well-founded fear
of future persecution. When the BIA adopts the reasoning of the IJ and adds
additional reasons, as in this case, we review both decisions. Lopez-Cardona v.
Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). We review the denial of asylum or
withholding of removal, including credibility determinations, for substantial evidence.
Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006). If the BIA fails to consider
highly probative evidence, “‘a catchall phrase’ that the agency ‘considered all the
evidence’ will not” meet the substantial evidence test. Cole v. Holder, 659 F.3d 762,
771-72 (9th Cir. 2011) (remanding CAT claim under the substantial evidence test
when the BIA failed to consider relevant evidence).
1. When making his adverse credibility determination, the IJ relied primarily
on Loho v. Mukasey, 531 F.3d 1016 (9th Cir. 2008), explaining that, like the petitioner
in Loho, Mogloo made two return trips to India from the United States without
applying for asylum, and stating that the facts in this case were similar to those in
Loho. In subsequent cases, however, we have distinguished Loho, in which the
petitioner returned to avoid missing work, from cases in which the petitioner returned
1
Mogloo has since waived the Convention Against Torture claim as he did
not raise it in his opening brief.
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for reasons for which he would be willing to risk persecution, such as visiting a sick
or dying relative. See Quan Fu Li v. Holder, 351 F. App’x 195, 197 (9th Cir. 2009)
(distinguishing Loho and finding that substantial evidence did not support the IJ’s
reliance on it because the petitioner returned home to visit her dying mother); see also
Prus v. Mukasey, 289 F. App’x 973, 976 (9th Cir. 2008) (“Unlike the petitioner in
Loho, who returned to her country to continue her employment after brief visits to the
United States, Prus's return trips to Uzbekistan . . . were limited to an interview for a
visa to travel to the United States and to visit his ill son in Ukraine. Those brief trips,
by themselves, were not sufficient to rebut the presumption established by the finding
of past persecution.”). Here, Mogloo stated that he returned to India when his wife
was threatened by militants and when his wife had pregnancy complications. In
relying on Loho and characterizing the facts as similar, the IJ (and subsequently the
BIA) made a clear error of law. Rather, they should have distinguished Loho as we
did.
To the extent the IJ relied on inconsistencies in other parts of Mogloo’s story
(i.e. Mogloo being kicked by multiple police officers versus being kicked by one
police officer and punched by others or petitioner being handcuffed to a chair versus
being tied with rope to a chair), that reliance is based on trivial inconsistencies that do
not weigh on credibility. Ren v. Holder, 648 F.3d 1079, 1086, 1090 (9th Cir. 2011)
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Finally, the IJ discounted Mogloo’s testimony because Mogloo did not provide
corroboration of a number of his statements. The IJ, however, did not give the
petitioner “notice and an opportunity to either produce the evidence or explain why
it [was] unavailable before ruling that [he] has failed in his obligation to provide
corroborative evidence and therefore failed to meet his burden of proof.” Ren, 648
F.3d at 1090 (9th Cir. 2011). Unlike in Ren, in which we upheld an IJ’s decision
based on the lack of corroboration after the IJ told the petitioner he would not meet
his burden of proof without corroborating evidence, identified the evidence needed,
and then granted a five-month continuance for the petitioner to obtain the information,
id., here, for example, the IJ asked only if the petitioner had requested family
members in India to write a statement “about what has happened.” The IJ erred by not
offering Mogloo a chance to obtain corroboration or to explain why he could not
obtain such corroboration. In sum, the BIA and IJ’s credibility determination based
on lack of corroboration is legal error because Mogloo was not afforded notice or the
opportunity to provide corroboration.
We remand with respect to credibility so that if the IJ wishes to consider
making a new finding on that question he may pursue it on the basis of lack of
corroborating evidence, but only if Mogloo is given notice of the desired evidence and
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a reasonable opportunity to obtain it to the extent that it is probative and available.
See Ai Jun Zhi v. Holder, 751 F.3d 1088, 1094-95 (9th Cir. 2014).
2. The BIA and IJ also erred in their alternative finding that Mogloo, even if
credible, did not establish past persecution because they failed to consider highly
probative evidence of violence directed against his family. Mashiri v. Ashcroft, 383
F.3d 1112, 1120 (9th Cir. 2004).
Mogloo alleged a series of violent acts, detentions, and invasive home searches
directed against him and his family that occurred over 25 years. In 1990, Mogloo’s
house was searched and he was physically assaulted by members of the Indian army
and Kashmir police when they came to his home in search of his brother, who was a
separatist. He was then detained for five days and interrogated. A year later, the
Indian army singled out his uncle on a passenger bus and reportedly shot and killed
him based on his family’s ties to separatists. In late 1992, the police again returned
to Mogloo’s home, searched it for his brother, and destroyed Mogloo’s workshop.
Over five years later, in 1998, Mogloo’s brother was tortured by police for being a
separatist; he lost an eye and had parts of three fingers burned off. Police again
detained Mogloo in 2001, taking him to the police station for five days and
interrogating him about his family’s ties to separatists. Finally, in 2008, the Indian
army and the police again searched his home–this time when he was away–after
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discovering a picture of Mogloo and an old friend, who had since become a suspected
militant.
The physical assault, multiple detentions, repeated home invasions, killing of
Mogloo’s uncle, and torturing of his brother make this case distinguishable from the
cases the BIA and IJ cite in their decisions. Unlike Mogloo, the petitioners in those
cases were subjected to at most a single, isolated incident. See Gu v. Gonzalez, 454
F.3d 1014 (9th Cir. 2006) (finding no past persecution where petitioner was detained
and beaten once but had no adverse employment consequences); Prasad v. I.N.S., 47
F.3d 336 (9th Cir. 1995) (upholding BIA decision finding no past persecution when
petitioner was the subject of a single incident in which he was detained for four to six
hours, interrogated about his political views, and kicked without lasting medical
damages); Al-Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001) (upholding BIA finding
of no past persecution where petitioner was targeted and detained only once based on
a protected characteristic); Singh v. I.N.S., 134 F.3d 962 (9th Cir. 1998) (finding no
past persecution when petitioner was never detained, beaten, or subjected to degrading
treatment by government forces and relied solely on a series of small thefts from her
yard and garage and a single robbery of her home by an unknown party). Indeed,
“while a single incident, in some instances, may not rise to the level of persecution,
the cumulative effect of several incidents may constitute persecution.” Surita v.
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I.N.S., 95 F.3d 814, 819 (9th Cir. 1996). The incidents can include threats and
violence towards the petitioner, the petitioner’s emotional trauma, and violence
towards family members. For example, in Mashiri, we found past persecution when
the petitioner faced repeated anti-foreigner threats, intimidation, and property crime;
her family also suffered severe violence, but petitioner never suffered physical
violence herself. 383 F.3d at 1121.
The BIA and IJ thus failed to consider relevant and probative evidence
regarding Mogloo’s claim of past persecution–the violence directed towards Mogloo’s
family. We therefore remand so that the IJ and BIA may consider the effect of the
violence directed against Mogloo and his family in making any future finding on past
persecution.
PETITION GRANTED AND REMANDED.
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