Jessie Ocee v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2423
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JESSIE OCEE, a/k/a Frank Owusu Bimpong
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
ON PETITION FOR REVIEW OF A FINAL ORDER OF REMOVAL BY THE
BOARD OF IMMIGRATION APPEALS
(AGENCY CASE NO. A074-234-588)
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Argued June 22, 2022
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Before: MCKEE, RESTREPO, and BIBAS, Circuit Judges.
(Filed: August 12, 2022)
Whitney D. Hermandorfer [ARGUED]
Mary E. Goetz
WILLIAMS & CONNOLLY
680 Maine Avenue, S.W.
Washington, DC 20024
Counsel for Petitioner
William P. Barr
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Lance L. Jolley
Liza S. Murcia [ARGUED]
Anthony C. Payne
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
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OPINION*
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RESTREPO, Circuit Judge.
Petitioner Frank Owusu Bimpong,1 a native and citizen of Ghana, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
2
of his application for asylum and for withholding of removal. For the reasons set forth
below, we will grant the petition, vacate the BIA’s decision, and remand for further
proceedings.2
I.3
Bimpong argues that the BIA erred in concluding that he failed to establish that his
membership in a particular social group (“PSG”) is a nexus for the persecution he fears—
as is required to qualify for asylum or withholding of removal. See 8 U.S.C. §§
1
Although Petitioner was originally placed in exclusion proceedings under the name
“Jessie Ocee” (Agency Case No. 074-234-588), he later verified that his name is Frank
Owusu Bimpong.
2
We express our gratitude to Whitney D. Hermandorfer and Mary E. Goetz of Williams
& Connolly LLP for accepting this matter pro bono, and we commend the quality of their
briefing and argument in this case. Lawyers who act pro bono fulfill the highest service
that members of the bar can offer to indigent parties and the legal profession.
3
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b) and 1240.15, and we exercise
jurisdiction under 8 U.S.C. § 1252. Because “the BIA adopted and affirmed the IJ’s
decisions and orders as well as [conducted] an independent analysis, we review both the
IJ’s and the BIA’s decisions and orders,” Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331,
340–41 (3d Cir. 2016), and look to the IJ’s opinion “only where the BIA has substantially
relied on that opinion,” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009); see also
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). We review legal conclusions de
novo, Doe v. Att’y Gen., 956 F.3d 135, 141 (3d Cir. 2020), and defer to factual findings
“if they are supported by reasonable, substantial, and probative evidence in the record
considered as a whole.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018) (quoting
Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir. 2010)). “Where, as here, the IJ finds the
applicant’s testimony to be credible and the [Board] makes no contrary finding,” the
Court “accept[s] as undisputed the testimony of the applicant.” Baballah v. Ashcroft, 367
F.3d 1067, 1073 (9th Cir. 2004) (quoting Singh v. I.N.S., 94 F.3d 1353, 1356 (9th Cir.
1996)). Remand is proper when the agency “has failed to adequately consider the
evidence in the record which favors an applicant”—unless that evidence compels a
conclusion contrary to the agency’s, in which case reversal follows. Sheriff v. Att’y Gen.,
587 F.3d 584, 592 (3d Cir. 2009).
3
1158(b)(1)(B)(i), 1231(b)(3)(A); Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008).
To satisfy the nexus requirement, “the applicant bears the burden of proving that one
central reason for the persecution was a protected characteristic.” Gonzalez-Posadas v.
Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015). An applicant must show, in other words,
that membership in a PSG was “an essential or principal reason for the persecution,” id.,and not simply an “‘incidental, tangential, or superficial’ reason,” Ndayshimiye v. Att’y
Gen., 557 F.3d 124, 130 (3d Cir. 2009) (quoting In re J-B-N- & S-M-, 24 I. & N. Dec.
208, 214 (BIA 2007)).
The BIA erred in concluding that Bimpong failed to meet that burden here.
According to Bimpong’s testimony, he was persecuted by members of the Enzema tribe
because he, a member of the Ashanti tribe, owned land with particular tribal significance
in Enzema territory. Bimpong inherited the land from his uncle, who was also a member
of the Ashanti tribe. His uncle was murdered by members of the Enzema tribe because
they did not want any member of the Ashanti to own the land. After inheriting the land,
Bimpong experienced continued threats and a near-fatal assault by members of the
Enzema. Eventually, he fled Ghana.
The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding.
Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that
lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred
to the IJ’s conclusion that “the record is devoid of any evidence indicating that the
[Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR
97 (emphasis added). That conclusion defies the record, which is replete with evidence
4
that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR
157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of
the Enzema “did not want the land that [he] possessed to be owned by non-members of
the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an]
intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.
In sum, the agency’s conclusion that the record was devoid of any evidence that
Bimpong’s membership in the Ashanti tribe was a nexus for his persecution was not
supported by substantial evidence.
III.
For the foregoing reasons, we will grant the petition, vacate the BIA’s decision,
and remand for further proceedings consistent with this opinion.
5