Mocktar Tairou v. Matthew Whitaker

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1404
MOCKTAR A. TAIROU,
Petitioner,
v.
MATTHEW G. WHITAKER, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: September 27, 2018 Decided: November 30, 2018
Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and William L. OSTEEN, Jr.,
United States District Judge for the Middle District of North Carolina, sitting by
designation.
Petition for review granted and remanded by published opinion. Chief Judge Gregory
wrote the opinion, in which Judge Motz and Judge Osteen joined.
ARGUED: John Franklin Hester, Jr., MCCOPPIN & ASSOCIATES, PA, Cary, North
Carolina, for Petitioner. Jane Tracey Schaffner, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Richard Andrew McCoppin,
MCCOPPIN & ASSOCIATES, P.A., Cary, North Carolina, for Petitioner.
Chad A. Readler, Acting Assistant Attorney General, Douglas E. Ginsburg, Assistant
Director, Katherine A. Smith, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Chief Judge:
Mocktar Tairou (“Tairou”) petitions this Court to review a final removal order by
the Board of Immigration Appeals (“BIA”) denying his asylum and withholding of
removal application and ordering his removal to Benin. Tairou contends that the BIA
erred in finding that he was not subjected to past persecution and that he lacked a well-
founded fear of persecution were he to return to Benin. Our binding precedent explicitly
holds that a threat of death constitutes persecution. Because Tairou experienced multiple
death threats in Benin, we hold Tairou established that he was subjected to past
persecution. We therefore grant the petition for review and remand to allow the BIA to
consider whether, in light of Tairou’s demonstrated past persecution, he has a well-
founded fear of future persecution.
I.
A.
Tairou was born in Benin in 1977. Although Tairou is married to a woman, he
testified that in 2007, he developed affectionate feelings for a man and “figured out [he]
was a homosexual.” J.A. 73. In 2008, Tairou met a French man named AY through a
website. * The two men eventually developed a romantic relationship. In 2009 and again
in 2013, AY came to visit Tairou in Cotonou, Benin, where Tairou rented an apartment
for AY. Tairou informed his wife and his father about his relationship with AY, and they
* In the interest of protecting Tairou’s partner’s privacy, we refer to him only by
letters.
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both accepted it. After learning of the relationship, Tairou’s wife informed him that she
in fact viewed herself as a lesbian. Although Tairou was open with his wife and father
about his romantic relationship with AY, Tairou and AY generally kept their relationship
a secret.
Despite the general secrecy surrounding their relationship, Tairou and AY were
openly affectionate with each other in front of Tairou’s cousin, Djamiou, during a night
out in Cotonou in August of 2013. Because Tairou was very close with his cousin, he did
not think that Djamiou would have a problem with his relationship. During the evening,
Djamiou took pictures of AY and Tairou hugging and kissing in a restaurant booth.
Shortly after the evening out, Tairou’s uncle called to tell Tairou that he needed to
come to his father’s home village due to a family emergency. When he arrived, Tairou
was directed to the backyard of his father’s house where he encountered a group of
approximately 40 men, including his two uncles, Aminou and Djibril, cousins of Tairou’s
father, ministers from the mosque, and other villagers unrelated to Tairou. Tairou’s
uncle, Aminou, asked him how things were going with AY and showed Tairou the
pictures Djamiou had taken of Tairou and AY kissing and hugging.
The crowd kept Tairou in the backyard, threatening and harassing him for five
hours. During that time, members of the group threatened to cut off his penis if they saw
Tairou and AY together again. “One after the other,” the people in the backyard took
turns pulling Tairou’s ears and slapping him in the face. J.A. 86. They “forbid [him]
from keeping on with this relationship” and told him that he was “bringing a bad name on
their family.” J.A. 86. In Tairou’s declaration attached to his application for asylum, he
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asserted that several of the people at the village gathering said that he “should die,” and
“some of them outright threatened to kill [him].” J.A. 210. In addition to threatening and
taunting Tairou about his relationship with AY, the men in the backyard offered Tairou a
beer, consumption of which is forbidden in Islam. Djamiou had reported to his uncle that
Tairou was consuming alcohol. Tairou declined the beer and begged the group to let him
go. Tairou promised that he would not continue the relationship with AY, saying
“everything [he] could say so they would just let me go.” J.A. 87. Finally, after five
hours, the crowd allowed Tairou to leave.
Approximately one week later, Tairou’s cousins Djamiou and Sefou knocked on
Tairou’s door in Cotonou. When Tairou opened the door, Djamiou and Sefou pushed
him inside and closed the door. Djamiou told Tairou that “despite everything we told you
at the village, you are keeping on going with [AY].” J.A. 91. Tairou’s cousins then
began to beat him with curtain holders that were on the floor. Id. In his declaration,
Tairou asserted that Djamiou and Sefou threatened to “kill [him], to shame [him] publicly
again,” and to harm his wife and children. J.A. 210. On their way out of Tairou’s home,
Djamiou showed Tairou a knife at his belt and told Tairou that if he did not stop his
relationship with AY, “this is what’s going to happen.” J.A. 95.
During the attack, Tairou’s youngest son, Lufti, sustained head and arm injuries
trying to protect his father. Tairou took Lufti to the hospital where Lufti stayed overnight
to receive medical treatment. Tairou sustained a wound to his arm during the attack but
did not seek medical treatment. Tairou testified that he could not report the threats from
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his relatives to the police and that he felt the Beninese police would be unwilling to
protect him.
After the home invasion, Tairou and his family heard knocking at the door
approximately every two days, but no one was there when they opened the door. Tairou
and his family also received several threatening phone calls from an unknown number
warning him: “Watch out. Be careful. You keep going with this watch out, we will
come back.” J.A. 96. The calls continued even though Tairou’s family changed their
number twice. Due to the knocking and threatening phone calls, Tairou and his family
“decided to leave and to try to find a more secure place to stay.” J.A. 96. Tairou’s wife
and children are still in hiding at this location in Cotonou.
In the wake of the incident in the village and home invasion, AY told Tairou that
two policemen came to his apartment to inform AY that he had been “turned in as a
homosexual.” J.A. 99. As a result, AY left Benin. Tairou is no longer in contact with
AY. When he left Benin, AY told Tairou “that he wanted to forget about Benin
completely.” J.A. 99.
If Tairou goes back to Benin, he fears his relatives will find him and “keep on
hurting [him],” because they know he is bisexual and has bisexual and homosexual
friends. J.A. 99. Tairou further testified that because of what AY told him about the
police officers who arrived at his place, he will not be able to depend on any police
protection should anything happen.
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B.
Tairou applied for admission to the United States at the Washington, D.C. port of
entry on March 9, 2014. On March 18, 2014, an asylum officer found that Tairou
demonstrated a credible fear of persecution or torture as a member of a sexual minority in
Benin and referred Tairou to an immigration judge (“IJ”). The Department of Homeland
Security initiated removal proceedings, charging that Tairou was inadmissible to the
United States due to his lack of a valid entry document pursuant to 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Before the IJ, Tairou conceded removability and applied for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”).
At the hearing, Tairou described his experience at his father’s village, as well as
the attack by his cousins and the anonymous phone calls and knocks that followed.
Tairou submitted documentation regarding his sexuality and color photographs of the
injuries he sustained during the attack at his home. Tairou also submitted evidence of
country conditions in Benin that indicated that “homosexuality is very unacceptable” and
“violent reprisal is a real danger.” J.A. 357. A Canadian governmental travel advisory for
Benin stated that although homosexuality was not illegal, it could lead to arrest under
laws such as indecent exposure. J.A. 348. However, a United States State Department
Benin Country Report indicated that homosexual behavior was discouraged but “neither
prosecuted nor persecuted.” J.A. 327.
The IJ determined that Tairou’s testimony was credible and that he had established
membership in a particular social group defined as “homosexuals in Benin.” J.A. 44. The
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IJ nevertheless denied Tairou’s petition for asylum, withholding of removal, and CAT
protection. Specifically, the IJ found that Tairou had not established that he had suffered
past persecution or that he had a well-founded fear of persecution if he returned to Benin.
Tairou appealed the IJ’s decision to the BIA. The BIA issued its own opinion, finding de
novo that Tairou had failed to establish that he suffered past persecution and that he had a
well-founded fear of future persecution. Accordingly, the BIA concluded that Tairou did
not qualify for asylum, withholding of removal, or protection under the CAT. Tairou
timely appeals the BIA’s decision as to his application for asylum and withholding of
removal.
II.
The BIA’s determination regarding eligibility for asylum or withholding of
removal is affirmed if supported by substantial evidence on the record considered as a
whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). In reviewing the BIA’s
decision, the Court is “obliged to uphold the BIA’s determinations unless they are
manifestly contrary to the law and an abuse of discretion.” Djadjou v. Holder, 662 F.3d
265, 273 (4th Cir. 2011) (internal citation and quotation marks omitted). The BIA abuses
its discretion “if it fail[s] to offer a reasoned explanation for its decision or if it distort[s]
or disregard[s] important aspects of the applicant’s claim.” Id. (alterations in original)
(internal citation and quotation marks omitted). The BIA also abuses its discretion in
making an error of law. Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006).
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Where, as here, the BIA did not adopt the IJ’s opinion but instead offered its own
reasons for denying relief, the Court reviews the BIA’s order rather than the IJ’s ruling.
Ngarurih v. Ashcroft, 371 F.3d 182, 188 (4th Cir. 2004). The BIA’s factual findings are
“conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Menghesha, 450 F.3d at 146 (quoting 8 U.S.C. § 1252(b)(4)(B)). The BIA’s
legal conclusions are reviewed de novo with “appropriate deference” to its interpretations
of the Immigration and Nationality Act. Id. (citing Nwolise v. INS, 4 F.3d 306, 309 (4th
Cir. 1993); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842-45 (1984)).
III.
On appeal, Tairou contends that the BIA erred by failing to appropriately consider
the cumulative effects of the harm inflicted on him and his family members. He argues
that targeted death threats and threatening phone calls may establish a finding of past
persecution. Had the BIA properly considered the cumulative effects of the harm
inflicted on him and his family members, including the death threats he received at the
public gathering at the village and the violent home invasion, Tairou argues that the BIA
would have found him to be a victim of past persecution and he would have been entitled
to a rebuttable presumption of a well-founded fear of future persecution. The
Government does not dispute the credibility of Tairou’s testimony, and it concedes — as
it must — that he has stated a valid particular social group. See, e.g., Bringas-Rodriguez
v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017); Nabulwala v. Gonzales, 481 F.3d 1115,
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1117 (8th Cir. 2007). The Government argues that the BIA’s decision should be upheld,
however, because the harm suffered cumulatively by Tairou does not constitute past
persecution. We agree with Tairou and remand the petition for further consideration by
the BIA.
A.
The Immigration and Nationality Act (“INA”) authorizes the Attorney General to
confer asylum on any refugee. 8 U.S.C. § 1158 (b)(1)(A). An applicant bears the burden
of proving eligibility for asylum. Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006);
8 C.F.R. § 1208.13(a), (b)(1). Eligibility for asylum under the INA may be established in
two ways. 8 U.S.C. § 1101(a)(42)(A). First, the petitioner may show that he was subjected to
past persecution, in which case he is entitled to a rebuttable presumption that he has a
well-founded fear of future persecution. Id.; Ngarurih, 371 F.3d at 187. Second, the
applicant may show that he has a well-founded fear of future persecution. 8 U.S.C.
§ 1101(a)(42)(A). In either case, the past persecution or well-founded fear of persecution
must be “on account of race, religion, nationality, membership in a particular social
group, or political opinion.” Id. “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.” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)
(internal citations omitted). Persecution may include actions less severe than threats to
life or freedom, but “actions must rise above the level of mere harassment to constitute
persecution.” Id. (internal citations omitted).
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The BIA erred by finding that Tairou had not established past persecution, despite
Tairou’s credible testimony of death threats he received in Benin. In concluding de novo
that Tairou did not suffer persecution in Benin, the BIA reasoned that Tairou suffered no
major physical injuries and that he did not claim to have suffered long-term mental harm
or problems. The BIA thus concluded that the harm suffered cumulatively by Tairou did
not rise to the level of persecution. However, the record indicates that Tairou received
multiple death threats that the BIA failed to address. Indeed, the Government conceded
at oral argument that Tairou suffered at least “an implicit death threat” when his cousin
brandished a knife after the home invasion. Because Tairou received multiple, explicit
threats of death both during and after the village gathering, the BIA’s conclusion as to
past harm contravenes our express and repeated holding that the “threat of death”
qualifies as persecution. See Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir.
2015) (“[W]e have expressly held that the threat of death qualifies as persecution.”)
(internal quotation marks and citation omitted); see also Crespin-Valladares v. Holder,
632 F.3d 117, 126 (4th Cir. 2011) (citing Li, 405 F.3d at 177). Contrary to the BIA’s
reasoning, the threat of death alone constitutes persecution, and Tairou was not required
to additionally prove long-term physical or mental harm to establish past persecution.
Because Tairou received multiple threats of death, the BIA’s determination that
Tairou had not suffered persecution was “manifestly contrary to the law” of this Court
and constituted an abuse of discretion. Djadjou, 662 F.3d at 273 (internal citation
omitted); Crespin-Valladares, 632 F.3d at 124 (internal citation omitted). We therefore
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reverse the BIA’s holding that Tairou failed to establish that he was subject to past
persecution.
B.
Because we hold that Tairou proved that he was subjected to past persecution in
Benin, he is entitled to the presumption of a well-founded fear of future persecution. Li,
405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). We do not decide whether the Government can
rebut this presumption. Instead, we remand to the BIA to reconsider the question under
the proper presumption. See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam);
Oliva v. Lynch, 807 F.3d 53, 61-62 (4th Cir. 2015).
IV.
For the foregoing reasons, we grant Tairou’s petition for review and remand to the
BIA to determine whether the Government can rebut the presumption that Tairou has a
well-founded fear of future persecution.
PETITION FOR REVIEW GRANTED AND REMANDED
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