Simmon Y. Menghesha v. Alberto R. Gonzales, Attorney General , 450 F.3d 142 ( 2006 )

Petition for review granted; vacated and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge KING joined. Judge WILLIAMS wrote a separate dissenting opinion.

OPINION

GREGORY, Circuit Judge:

Simmon Y. Menghesha fled his native country of Ethiopia on July 8, 2001, the day he learned that government officials had discovered his role in thwarting the arrest of anti-government protestors. The following day, Menghesha arrived in the United States and sought asylum under Section 208(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a). Menghesha maintained that if returned to Ethiopia, he would suffer arrest, imprisonment, and torture on account of the political opinion he expressed through verbal critiques of the government and by his actions to frustrate the arrest of nonviolent protestors. The Immigration Judge (“IJ”) denied Menghesha’s asylum request based on a belief that the Ethiopian government desired to prosecute Menghesha for obstruction of justice. The IJ failed, however, to consider whether the government possessed coexisting illicit motives for taking action against Menghesha. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s determination, rendering Menghe-sha removable to Ethiopia. Because we find that the IJ misapplied the law in denying Menghesha’s request for asylum, we grant Menghesha’s petition for review, vacate the BIA’s decision, and remand for further proceedings.

I.

Following is a recitation of undisputed facts adduced in Menghesha’s asylum application and hearing testimony. In the absence of contrary evidence or an adverse credibility determination, we accept Menghesha’s uncontested account as true. Menghesha was born in Addis Ababa, Ethiopia on May 15, 1976. After graduating from high school, he became actively involved in the Ethiopian People’s Revolutionary Democratic Front and Tigray People’s Liberation Front (“EPRDF/TPLF”), the political party presently in power. In November 1997, having been identified as a committed EPRDF/TPLF member, Menghesha was offered a position with the government’s security services. After six months of training, Menghesha was assigned to a government security detail.

As a member of the security detail, Menghesha was directed to spy on meetings of groups opposed to the government. Menghesha first carried out this task in September 1999, when, undercover, he attended a meeting of the All Amhara People’s Organization on the occasion of the death of that organization’s leader. During the meeting, the leader of the undercover team summoned the riot police to suppress the allegedly unruly crowd. On their arrival, the riot police began to beat and arrest attendees who refused to disperse. Those who were arrested were detained for two days without bathroom access. Menghesha expressed his discontent about how the attendees were treated in a subsequent security meeting. At that time, his superiors warned him not to criticize the government and told him that such conduct “would harm [him].” J.A. 184.

In April 2001, Menghesha was assigned to a six-member undercover team to identify anti-government behavior at a meeting organized by the head of the Ethiopian Human Rights Council. Because Menghe-sha did not observe any illegal conduct, he did not furnish any information leading to arrests. Consequently, government officials accused him and his colleague Yo-hannes Assefa of being “in sympathy” with the opposition, threatened them with arrest, and told them they would be watched closely. J.A. 69,185.

About a week later, Menghesha’s undercover team attended a meeting of disgruntled Addis Ababa University students. While a high-ranking security officer negotiated with students regarding their demands for increased freedom, Menghesha and his colleagues interacted with other students and collected information on student leaders. When negotiations failed, the security team received orders to arrest five students identified as opposition leaders. The team was directed to use “any means necessary” to effectuate the arrests, including deadly force. J.A. 185. Menghesha was “disturbed” by the order to use deadly force. Id. at 71. He felt “the students were asking the right questions” and could not comprehend “why the government [was] behaving this way.” Id.

Menghesha discussed the arrest orders with Assefa. Disgusted by what was transpiring, they resolved to warn the five students in question. Having seen others beaten and killed upon arrest, Menghesha feared that the students would meet the same fate unless he intervened. J.A. 74. Further, he sympathized with the students because their request was “right and peaceful.” Id. at 77. Wdien the security officers arrived on campus to make arrests, the five students were gone, although other security teams arrested those students they were assigned to locate. Word of the arrests spread, and students mobilized to resist and protest. Troops moved in to control the students and a deadly riot ensued.

Thereafter, the security department began to investigate who had warned the five students. Menghesha and Assefa came under suspicion when security department officials learned that they had been at the university on the afternoon before the arrests, a fact they had failed to report. As there was no proof of wrongdoing, the security department modified the men’s duties pending further investigation, but took no other action.

On July 8, 2001, Menghesha and Assefa learned that their role in thwarting the arrests had been discovered by government officials. That same day, Menghesha and Assefa boarded a plane bound for the United States. With that, Menghesha fled the country, without saying goodbye or retrieving any belongings, and despite his apparent plans to marry. On arrival the next day, the two surrendered to immigration authorities and told their story.

At his asylum hearing, Menghesha introduced documentary evidence, including the State Department’s Country Report on Ethiopia, to substantiate his testimony. Although Assefa was available to testify, the parties simply stipulated to his corroborative testimony. The Immigration and Naturalization Service (“INS”) did not introduce evidence at the hearing, offering only opening and closing remarks.¹

After reviewing the evidence, the IJ denied Menghesha’s requests for asylum and withholding of removal. The IJ expressed the view that as “a sworn law enforcement official ... it was not for [Menghesha] -to pick and choose among which of the persons he was directed to arrest.” J.A. 225. He stated, “if [Menghesha] took exception to any action that the government might engage, including the arrest of students who were expressing their opposition to the government of Ethiopia, [Menghesha] had it within his ability to resign from his position as a law enforcement official.” Id. at 225-26. The IJ concluded that “[Menghesha] fears prosecution for his criminal act of obstruction of justice,” and that this “may not form the rational basis upon which the Court can conclude that he would be persecuted on account of his political opinion or any of the four remaining bases upon which asylum may be granted.” Id. at 226. The IJ thus denied Menghesha’s asylum request without making additional factual findings that might undermine Menghesha’s entitlement to asylum.

On May 11, 2004, the BIA affirmed the IJ’s decision without opinion. Menghesha timely appealed the BIA’s order, challenging only the denial of his petition for asylum.

II.

Section 208(b)(1) of the INA, 8 U.S.C. § 1158(b)(1), gives the Attorney General authority to grant asylum to an alien meeting the statutory definition of a refugee. Under the INA, a refugee is someone who is unable or unwilling to return to his home country due to 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)(A). To satisfy this test, an asylum applicant “must demonstrate the presence of a protected ground and he must link the feared persecution, at least in part, to it.” Saldarriaga v. Gonzales, 402 F.3d 461, 466 (4th Cir.2005), petition for cert. filed, — U.S.-, 126 S.Ct. 1330, 164 L.Ed.2d 47 (2005) (No. 05-266).

Where, as here, the BIA engages in the streamlined review process set forth in 8 C.F.R. § 1003.1(e)(4) by simply adopting the IJ’s conclusion without opinion, the IJ’s decision becomes the final agency decision subject to our review. See Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.2004); see also 64 Fed.Reg. 56, 138 (Oct. 18, 1999) (When the BIA summarily affirms the IJ’s decision, “the Immigration Judge’s decision becomes the decision reviewed.”). Accordingly, the IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the IJ’s legal conclusions de novo, giving appropriate deference to its interpretations of the INA. Nwolise v. INS, 4 F.3d 306, 309 (4th Cir.1993) (citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The IJ’s ultimate decision with regard to Menghe-sha’s eligibility for asylum must be upheld unless it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D) (2000); see also Li v. Gonzales, 405 F.3d 171, 175 (4th Cir.2005); Saldarriaga, 402 F.3d at 465; Ngarurih v. Ashcroft, 371 F.3d 182, 188 (4th Cir.2004); Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th Cir.2004). An IJ abuses its discretion in making an error of law. See United States v. Pearce, 191 F.3d 488 (4th Cir.1999) (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).

Thus, where, as here, the IJ misapplies the law in evaluating a request for asylum, the appropriate remedy is to remand so that the agency may apply the correct legal standard in the first instance. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (stating that remand is required where the agency has yet to address a legal question pertinent to the asylum determination). See also Phommasoukha v. Gonzales, 408 F.3d 1011, 1015 (8th Cir.2005) (“When the BIA applies an incorrect legal standard, the proper remedy typically is to remand the case to the agency for further consideration in light of the correct standard.”); accord Qiu v. Ashcroft, 329 F.3d 140, 157 (2d Cir.2003); Griffiths v. INS, 243 F.3d 45, 55 (1st Cir.2001); Asani v. INS, 154 F.3d 719, 723 (7th Cir.1998); Martinez-Sanchez v. INS, 794 F.2d 1396, 1399 (9th Cir.1986).

III.

In denying Menghesha’s request for asylum, the IJ committed legal, if not factual, error. In this respect, this case must be distinguished from the many instances in which we have considered whether the BIA’s factual findings justified a denial of asylum. See, e.g., Saldarriaga, 402 F.3d at 465-67; Ngarurih, 371 F.3d at 188-89; Blanco de Belbruno, 362 F.3d at 284-85. We resolved those cases under the extremely deferential standard of review applicable to factual determinations. In this instance, however, we are concerned with the IJ’s legal conclusions, not factual findings. We find that the IJ erred as a matter of law in holding Menghesha to an overly stringent legal standard: proving that political persecution was the government’s sole motive.

Specifically, the IJ erred in discontinuing his inquiry after identifying the Ethiopian government’s arguably legitimate motive to prosecute Menghesha.² Under the INA’s “mixed-motive” standard, an asylum applicant need only show that the alleged persecutor is motivated in part to persecute him on account of a protected trait.³ Recognizing that persecutors often have multiple motives for punishing an asylum applicant, the INA requires only that an applicant prove that one of those motives is prohibited under the INA. See, e.g., Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir.2005) (“the [INA’s] reference to persecution ‘on account of one of the specified grounds does not mean persecution solely on account of one of those grounds.”); accord Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003) (citing Chang v. INS, 119 F.3d 1055, 1065 (3d Cir.1997)); Girma v. INS, 283 F.3d 664, 667 (5th Cir.2002); Borja v. INS, 175 F.3d 732, 735 (9th Cir.1999) (en banc); Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994); In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996). Thus, even assuming that the Ethiopian government had a lawful non-political motive for prosecuting Menghesha, the IJ had an obligation to consider the evidence of political motive. In other words, an IJ may not “treat[ ] the presence of a nonpolitical motive as evidence of the absence of a political motive.” Tarubac v. INS, 182 F.3d 1114, 1118 (9th Cir.1999). Indeed, in In re Nagy, the BIA did not dismiss the possibility of an impermissible motive purely because there was a valid basis for prosecuting the applicant, namely her violation of the time limits placed on her travel abroad. 111. & N. Dec. at 891-92. Rather, the BIA searched the record for evidence of an unlawful persecutory motive. Id. at 889. Finding no evidence of impermissible motive, the BIA denied the relief sought. Id. at 891-92.

Unlike the BIA in In re Nagy, the IJ here did not consider the uncontested evidence of political motive. For instance, the IJ did not address the fact that: (1) Menghesha was threatened with “harm” if he continued to criticize the government’s handling of dissidents; (2) he was accused of being “in sympathy” with the student protestors; and (3) he was subjected to close scrutiny and threatened with arrest for sympathizing with the students. In this respect, the IJ failed to comply with In re Nagy, and effectively held Menghe-sha to a more onerous standard than is required under the INA. We conclude that the IJ’s analysis of Menghesha’s asylum claim was incomplete. Accordingly, we set aside the IJ’s determination, which was manifestly contrary to law and an abuse of discretion, and remand so that the agency may evaluate Menghesha’s entitlement to asylum according to the correct legal standard.⁴

IV.

For the reasons stated above, we grant the petition for review and vacate the BIA’s denial of asylum. We, however, do not decide whether, applying the correct mixed-motive standard, Menghesha is entitled to asylum. Instead, we remand that such a determination may be made in the first instance.

PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.

1 . On March 1, 2003, the INS’s responsibilities were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 451, 471, 116 Stat. 2135, 2195, 2205 (2002).

2 . In using the term "prosecution,” the IJ seized upon the principle, found in In re Nagy, 11 I. & N. Dec. 888 (BIA 1966) and its progeny, that prosecution for a criminal violation does not alone constitute persecution. This important principle respects a government’s freedom to devise its own laws and penalties for criminal conduct. In stating that "Obstruction of justice may not form the rational basis upon which the Court can conclude that [Menghesha] would be persecuted on account of his political opinion ... [,]” the IJ, however, broadened the rule of In re Nagy, by suggesting that prosecution never amounts to persecution. In fact, where the motive underlying a purported prosecution is illegitimate, such prosecution is more aptly called persecution. See, e.g., Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir.1996) ("While punishment of criminal conduct in itself is not persecution, where that punishment ... is motivated by one of the specified grounds, such punishment would constitute persecution under the [INA].”); accord Lin v. INS, 238 F.3d 239, 244 (3d Cir.2001); Fisher v. INS, 79 F.3d 955, 962 (9th Cir.1996); Sadeghi v. INS, 40 F.3d 1139, 1142 (10th Cir.1994).

Moreover, the IJ’s conclusion that Menghe-sha fears prosecution is troubling, because typically "[fjoreign law is a matter to be proven by the party seeking to rely on it....” In re Soleimani, 20 I. & N. Dec. 99, 106 (BIA 1989); see also Abdille v. Ashcroft, 242 F.3d 477, 490 (3d Cir.2001). Although "[ordinarily, it is the asylum applicant who seeks the benefit of foreign law, and thus carries the burden of demonstrating its content,” Abdille, 242 F.3d at 490, in this instance, the INS relied on foreign law by claiming that Menghesha feared prosecution under Ethiopian law. Thus, after Menghesha produced evidence to show that the Ethiopian government had an illegitimate motive to persecute him, the INS bore the burden of offering evidence of the Ethiopian law that it contends Menghe-sha violated in thwarting the warrantless arrest of nonviolent protestors. But see Sadeghi v. INS, 40 F.3d 1139, 1142-43 (10th Cir.1994) (declining to place the burden of proving foreign law on the INS where the petitioner failed to produce evidence sufficient to show that the Iranian government had any illegitimate motive for persecuting him).

3 . The Attorney General argues at great length that we do not have jurisdiction to review Menghesha’s claim of mixed-motive persecution because he did not advance an argument of mixed-motive persecution before the IJ. Br. for Resp't at 41-44. We disagree. In asking us to assess his claim under a mixed-motive standard, Menghesha is not alleging a distinct legal claim. Rather, he is merely elucidating the proper legal standard, that the impermissible basis for persecution need not be the sole basis for persecution. Thus, we will (and we must) apply the proper legal standard regardless of whether Menghesha argued it affirmatively before the IJ.

4 . Finally, we address the suggestion implicit in the IJ's opinion that Menghesha's status as a law enforcement official undermines his entitlement to asylum. This belief may stem from a series of cases, which stand for the proposition that "dangers faced by policemen as a result of that status alone are not ones faced on account of race, religion, nationality, membership in a particular social group, or political opinion.” In re Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1988); accord Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1044 (10th Cir.2004); Chanco v. INS, 82 F.3d 298, 302 (9th Cir.1996). Those cases are inappo-site. Menghesha fears reprisal from the government he served, which cannot seriously be characterized as one of the "dangers faced by policemen.”