Derick Furwood Mbanwei v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERICK FURWOOD MBANWEI, No. 19-72615
Petitioner, Agency No. A215-905-773
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 8, 2022
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Derick Furwood Mbanwei, a native and citizen of Cameroon, appeals from
the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Because one member
of the BIA summarily affirmed the IJ’s decision under 8 C.F.R. § 1003.1(e)(4),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“the IJ’s decision becomes the BIA’s decision” for the purposes of our review.
Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004) (citation omitted). We have
jurisdiction under 8 U.S.C. § 1252, and we grant Mbanwei’s petition.
1. Substantial evidence supports the IJ’s finding that Mbanwei failed to
show past persecution. “An applicant qualifies as a refugee if he ‘is unable or
unwilling to return to his home country because of a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.’” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1062 (9th Cir. 2017) (citing Navas v. I.N.S., 217 F.3d 646, 654 (9th Cir.
2000)). “Persecution is an extreme concept and has been defined as the infliction
of suffering or harm in a way regarded as offensive.” Kaur v. Wilkinson, 986 F.3d
1216, 1222 (9th Cir. 2021) (cleaned up). Mbanwei fled Cameroon amidst civil
unrest after two specific incidents: 1) he was threatened by armed separatists who
broke into his home; and 2) he was detained by Cameroonian government forces
for two days and subjected to deplorable prison conditions based on the mistaken
belief that he was an Anglophone separatist. Threats without physical injury may
constitute past persecution, and we “generally look at all of the surrounding
circumstances” to determine whether the threats are sufficiently severe. Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Similarly, we have found
detention by government forces constitutes past persecution where the petitioner
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was physically harmed or subjected to more extreme conditions. Compare
Bondarenko v. Holder, 733 F.3d 899, 908-10 (9th Cir. 2013), with Khup v.
Ashcroft, 376 F.3d 898, 903-04 (9th Cir. 2004). On this record, we cannot say the
evidence compels the finding that Mbanwei’s two incidents rise to the level of past
persecution. See Duran-Rodriguez, 918 F.3d at 1028-29.
2. However, the IJ’s finding that Mbanwei failed to show a well-founded
fear of future persecution on account of a protected ground is not supported by
substantial evidence. In the absence of past persecution, an asylum applicant can
demonstrate a “‘subjectively genuine and objectively reasonable’ fear of future
persecution.” Bringas-Rodriguez, 850 F.3d at 1062 (citing Navas, 217 F.3d at 654-
56, 656 n.11). Mbanwei testified that he fears persecution from two groups: the
Anglophone separatists, who will perceive him as a traitor or government
sympathizer because he will not join their armed fight, and Cameroonian
government forces, who will mistakenly believe he is a separatist because he is a
young Anglophone male from the village of Batibo. Because Mbanwei testified
credibly, the subjective component is established, and the only question is whether
his fear of persecution is objectively reasonable. See Parada v. Sessions, 902 F.3d
901, 909 (9th Cir. 2018).
In finding that Mbanwei’s fear of future persecution is not well-founded, the
IJ only addressed the threat of persecution by the government. The IJ did not
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assess his fear of persecution by the separatists, which was a significant premise
for Mbanwei’s request for relief. The IJ’s failure to consider this argument and the
supporting evidence necessitates remand. See Vitug v. Holder, 723 F.3d 1056,
1064 (9th Cir. 2013).
Moreover, the IJ’s finding that Mbanwei did not show a well-founded fear of
persecution by the government on account of an imputed political opinion—
namely, his alleged association with Anglophone separatists—overlooked another
part of the record. The IJ found that the record “clearly indicated that those who
are targeted are the separatists,” and there was “nothing in the country conditions
evidence that would support a finding that someone in the respondent’s
circumstances would be targeted for persecution in Cameroon” because Mbanwei
is not a separatist. But Mbanwei testified that when he was arrested, the
government forces accused him of being a separatist after identifying that he was
from Batibo. See Khudaverdyan v. Holder, 778 F.3d 1101, 1106-07 (9th Cir.
2015) (reasoning that police statements accusing petitioner of working against the
government are evidence that the police imputed a political opinion to the
petitioner). On remand, the BIA should consider whether evidence in the record
corroborates that Cameroonian government forces detain, torture, or brutally harm
Anglophone civilians who they suspect are involved with separatists, but do not
confine abuses to those who are actually separatists. Mbanwei may also show that
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his fear of persecution is reasonable based on persecution of those similarly
situated. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-84 (9th Cir. 2003) (showing
well-founded fear of persecution based on individualized threats in conjunction
with widespread persecution of the petitioner’s protected group); 8 C.F.R. §
1208.13(b)(2)(iii) (allowing asylum applicants to show persecution towards
similarly situated individuals). On remand, the BIA must assess whether Mbanwei
has an objective basis for fear of future persecution from both the separatists and
the government based on the full record. Regalado-Escobar v. Holder, 717 F.3d
724, 729 (9th Cir. 2013).
3. The IJ’s denial of CAT relief and withholding of removal relies on the
same factual findings. Therefore, we also remand these claims for reconsideration.
PETITION GRANTED AND REMANDED.
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