Million Kidane Degol v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILLION KIDANE DEGOL, No. 17-72851
Petitioner, Agency No. A208-924-275
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2019**
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and KOBAYASHI,*** District
Judge.
Million Kidane Degol (“Degol”), a native and citizen of Eritrea, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
from an immigration judge’s (“IJ”) decision denying his application for asylum
and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We
review de novo the agency’s legal determinations, and we review its factual
findings for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir.
2011). We dismiss in part and deny in part the petition for review.
Degol challenges both the IJ’s adverse credibility determination and her
alternative holding that Degol’s testimony did not establish persecution on account
of his political opinion. Because the BIA relied solely upon the IJ’s alternative
holding to affirm the removal order, we lack jurisdiction to review the adverse
credibility determination. Villavicencio v. Sessions, 904 F.3d 658, 663 (9th Cir.
2018) (limiting our review to the BIA decision). Accordingly, we dismiss Degol’s
petition for review of the adverse credibility determination.
The agency’s finding that Degol failed to establish that the security officers
were motivated by his political opinion was supported by substantial evidence
because the record evidence does not compel a contrary conclusion. Garcia-
Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). While Degol was
kidnapped, imprisoned, and beaten by Eritrean security forces immediately after
refusing to join the country’s ruling political party, his captors never clearly
articulated their reasons for targeting him. Degol himself admitted that he was
unsure of their motives. Because substantial evidence supports the agency’s
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finding that Degol failed to establish that his persecutors attacked him on account
of his political opinion, we deny this portion of his petition for review.1
Petition DENIED IN PART and DISMISSED IN PART.
1
Although the dissent sets forth an alternative interpretation of the evidence, that
interpretation does not compel us to reach a conclusion contrary to that reached by
the agency. Garcia-Milian, 755 F.3d at 1031.
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FILED
Degol v. Barr, No. 17-72851 MAR 3 2020
Paez, J., concurring in part and dissenting in part. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that we lack jurisdiction to review Degol’s
credibility claims. However, I do not believe that substantial evidence supports the
agency’s conclusion that Degol failed to establish persecution on account of his
political opinion. Although our standard of review is deferential, “deference does
not mean blindness.” Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014)
(quoting Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)). Because
the record compels the contrary conclusion, Parada v. Sessions, 902 F.3d 901,
908–09 (9th Cir. 2018), and because both the IJ and BIA ignored Degol’s
testimony relating his captors’ accusations of disloyalty, I respectfully dissent.
To establish that he was persecuted on account of his political opinion,
Degol was not required to present direct evidence of his persecutors’ motives.
“[F]actual circumstances alone may provide sufficient reason to conclude that acts
of persecution were committed on account of political opinion, or one of the other
protected grounds.” Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) (internal
citation omitted). After all, “[p]ersecutors do not always take the time to tell their
victims all the reasons they are being beaten or kidnaped or killed.” Gafoor v.
I.N.S., 231 F.3d 645, 650 (9th Cir. 2000).
Indeed, “this court has held persecution to be on account of political opinion
where there appears to be no other logical reason for the persecution at issue.” Id.;
1
see also Li v. Holder, 559 F.3d 1096, 1099 (9th Cir. 2009). Moreover, “if there is
no evidence of a legitimate prosecutorial purpose for a government’s harassment of
a person . . . there arises a presumption that the motive for harassment is political.”
Ratnam v. INS, 154 F.3d 990, 995 (9th Cir. 1998) (quoting Harpinder Singh v.
Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (internal quotations omitted). This
presumption is more difficult to rebut when the persecution directly follows the
applicant’s political activity. See Deloso v. Ashcroft, 393 F.3d 858, 865 (9th Cir.
2005) (observing that “[t]he timing of the violent acts and threats against” the
petitioner’s family “indicates that they were attacked for political reasons”).
Under this standard, the specific circumstances in Degol’s case compel the
conclusion that he was targeted in retaliation for his political views. Degol twice
publicly criticized the ruling political party and refused to join its ranks.
Immediately following that refusal, Degol was kidnapped and tortured by security
forces. Neither the government nor the agency has offered any alternative motive
for Degol’s persecution. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1020–21 (9th
Cir. 2009) (explaining that the IJ classified Sinha’s persecution as the result of
“random violence” and not racial persecution). To the contrary, unchallenged
evidence in the record indicates that the Eritrean government routinely retaliates
against political dissidents in precisely this fashion.
2
There is also direct evidence of Degol’s captors’ motives. He testified that,
while in prison, an interrogator accused him of belonging to nefarious foreign
interests. Statements of this kind are probative evidence of persecutors’ motives.
See Gafoor, 231 F.3d at 651–52 (holding that Fijian “soldiers’ statements to
Gafoor [to ‘go back to India’ were] unmistakable circumstantial evidence that they
were motivated by his race and imputed political opinion”). When all the evidence
is considered, in my view, it compels a contrary finding, i.e., that Degol was
persecuted on account of his political opinion.
Because neither the IJ nor the BIA took any note of Degol’s testimony
regarding his captors’ statements, I also believe the agency committed legal error
and, therefore, I would remand so that the agency can correct this error. Rather
than taking note of this evidence, the IJ stated that “the extent of the interrogation
was to ask him ‘Why are you here’ or whether he knew why he was detained.”
And the BIA simply concluded that Degol “does not know why he was
imprisoned.”
When the agency fails to consider evidence that is “directly relevant” to past
persecution, we may remand a petition for review so the BIA can properly consider
that evidence. Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013). Because
the agency ignored critical testimony from Degol that was directly relevant to his
3
captors’ motives, it erred as a matter of law. That reason standing alone is
sufficient to remand to the BIA. Id. at 1084.
For the foregoing reasons, I would grant the petition in part and remand for
further proceedings.
4