                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2003

Kwasi Amanfi v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket 01-4477




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                                 PRECEDENTIAL

                                             Filed May 16, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                  Nos. 01-4477 and 02-1541


                        KWASI AMANFI,
                                Petitioner
                                v.
  JOHN ASHCROFT, Attorney General of United States,
                          Respondent

            On Petition for Review of an Order of
             the Board of Immigration Appeals
                   (INS No. A78 424 961)

                   Argued January 21, 2003
 Before: BECKER, Chief Judge,* NYGAARD and AMBRO,
                   Circuit Judges.

                     (Filed: May 16, 2003)




* Judge Becker completed his term as Chief Judge on May 4, 2003.
                             2


                      SANDRA GREENE, ESQUIRE
                       (ARGUED)
                      238 East Philadelphia Street
                      York, Pennsylvania 17403
                      Counsel for Petitioner
                      ROBERT D. MCCALLUM, JR.,
                       ESQUIRE
                      Assistant Attorney General, Civil
                       Division
                      RICHARD M. EVANS, ESQUIRE
                      Assistant Director
                      SUSAN K. HOUSER, ESQUIRE
                       (ARGUED)
                      Office of Immigration Litigation
                      U.S. Department of Justice, Civil
                       Division
                      P.O. Box 878, Ben Franklin Station
                      Washington, D.C. 20044
                      Counsel for Respondent


                OPINION OF THE COURT

BECKER, Circuit Judge.
  In this multi-pronged petition for review of the Board of
Immigration Appeal’s (“BIA”) denial of Kwasi Amanfi’s
application for asylum, withholding of removal, and
protection under the Convention Against Torture, we are
primarily presented with the question whether the BIA
improperly deviated from its existing interpretation of the
Immigration and Naturalization Act’s (“INA”) definition of a
refugee. Amanfi, a native and citizen of Ghana, was
detained by immigration officials upon his arrival in the
United States after he presented false travel documents. In
testimony before the immigration judge, Amanfi stated that
he was persecuted by members of a cult and by the
Ghanian police on account of their view that he was a
homosexual, even though Amanfi did not identify himself as
a homosexual and there was no independent evidence that
he was.
                              3


   The BIA recognized the precedents establishing that
homosexuals are a protected social group and supporting
asylum claims on the basis of imputed political opinion,
i.e., when the persecutor believes the applicant has a
certain political opinion even though the applicant does
not. However, the BIA was unwilling to extend the concept
underlying the theory of imputed political opinion — that
what matters is the beliefs of the persecutor rather than the
persecuted — to Amanfi’s theory of imputed membership in
a social group (homosexuals) because it deemed such an
extension to be without legal precedent.
  The INS maintained this position in its brief, but before
oral argument it filed a motion to remand this case to the
BIA in light of a regulation proposed by the Attorney
General in December 2000 that supports Amanfi’s theory of
imputed membership in a social group. Amanfi notes that
in a letter opinion dated January 19, 1993, the INS’s
General Counsel adopted an interpretation of the INA
supporting Amanfi’s theory. He nonetheless argues that we
should deny the INS’s motion and file a precedential
opinion in this case because proposed regulations are not
binding on the BIA and the INS has never declared when it
will promulgate this rule, indeed suggesting at oral
argument that it may be quite a long time, perhaps years,
before it does so.
   While we might remand to the BIA to consider this legal
issue in the first instance, we decline to do so here. As we
explained in Johnson v. Ashcroft, 286 F.3d 696, 700 (3d
Cir. 2002), an agency may change its policies, but it cannot
depart from its established precedents without explanation.
In at least two decisions, the BIA has held that
“[p]ersecution for ‘imputed’ grounds . . . can satisfy the
‘refugee’ definition” in the INA. In re S-P-, 21 I. & N. Dec.
486 (BIA 1996); see also In re T-M-B-, 21 I. & N. Dec. 775
(BIA 1997). Moreover, the Attorney General, who is the
ultimate authority on interpretations of the INA, INA
§ 103(a)(1), 8 U.S.C. § 1103(a)(1), explained that the
proposed regulation cited by the INS in its motion was not
designed to make new law but rather “codifies the existing
doctrine of imputed political opinion, as well as the existing
administrative interpretation that this doctrine also extends
                               4


to the protected grounds other than political opinion.” 65
Fed. Reg. 76588, 76592 (Dec. 7, 2000). Because Amanfi’s
theory of persecution on account of his imputed
membership in a social group is supported by these legal
precedents, and the BIA did not articulate a reason for
deviating from them, we will grant the petition of review to
that extent and deny the INS’s remand motion. We will,
however, remand Amanfi’s seriously contested asylum
claim to the BIA for consideration of its validity in deference
to the BIA’s expertise in analyzing the merits of asylum
applications.
  Finally, we will deny Amanfi’s petition for review of the
BIA’s dismissal of his claim for asylum on the ground of
religious persecution, and also his application for protection
under the Convention Against Torture. The BIA analyzed
the evidence supporting these claims and found that
Amanfi did not satisfy his burden of proof. Since we may
decline to uphold the BIA’s findings of fact only if the
evidence compels us to do so, see INS v. Elias-Zacarias, 502
U.S. 478, 481 n.3 (1992), and Amanfi has not identified
evidence that would lead us to this conclusion, we will defer
to the BIA’s determination that Amanfi does not qualify for
asylum and withholding of removal on religious persecution
grounds or under the Convention Against Torture.

                               I.
   Kwasi Amanfi is a citizen of Ghana who was detained by
the INS at JFK Airport in New York on December 21, 2000,
when he attempted to transit through the United States to
Canada. He was in possession of a Canadian passport in
the name of Ken Oppong. When questioned about his
identity by immigration officials, Amanfi at first claimed he
was a Canadian citizen but later admitted his real identity
and explained that he acquired the passport in Ghana.
That same day, the INS served Amanfi with a Notice to
Appear charging him with removability under INA
§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who
sought to obtain admission to the United States by fraud or
willful misrepresentation of a material fact, and under INA
§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien
seeking admission without a valid document.
                             5


  In April 2001, Amanfi appeared before an immigration
judge (“IJ”) and filed, pro se, an application for asylum and
withholding of removal under INA §§ 208(a) and 241(b)(3), 8
U.S.C. §§ 1158(a) and 1231(b)(3), and for protection under
Article 3 of the Convention Against Torture. In an unsigned
attachment to his application, Amanfi stated that he was
seeking asylum because of prior abuse by Ghanian
authorities on account of his imputed status as a
homosexual and alleged torture by a cult that objected to
his father’s preaching against human sacrifice. At a merits
hearing where he was represented by counsel, Amanfi
articulated his justification for asylum in testimony
summarized as follows.
   Amanfi was born in Kumansi, Ghana, and was a member
of the Ashanti ethnic group. He had a close relationship
with his grandfather who was a “chief” of the Ashanti and
who explained to him the group’s traditional practices,
including human sacrifice. According to what his
grandfather told him, homosexuals and other individuals
who committed sexual acts that were considered taboo
would not be suitable for sacrifice. Although Amanfi’s
grandfather and other relatives practiced Ashanti
traditions, his father was a teacher and minister of a
Christian group, as well as a television and radio preacher.
Amanfi also identified himself as a Christian. He testified
that his father received threats from “macho men” and the
“Blood Temple” cult, which objected to his lectures against
human sacrifice, and that his father was assaulted by these
groups on at least one occasion. In August 2000, Amanfi’s
father disappeared after he left for church and never
returned. Amanfi filed a police report but, despite repeated
complaints, received little assistance from the Ghanian
authorities in the search for his father.
  Shortly thereafter, several men claiming to be police came
to Amanfi’s house, drove him to an “isolated area,” and
locked him in a room. The men — whom Amanfi did not
actually believe were police, but rather “macho men” who,
according to the Department of State country conditions
report for Ghana, are private security guards hired by
individuals to settle disputes — told him that his father had
been killed because of his preaching. The “macho men”
                             6


threatened Amanfi with the same. He testified that the
room in which he was kept contained a fetish, or idol, that
was covered with blood, which he suspected was from his
father. His captors brought him food and wine, which
Amanfi claimed meant they were preparing him for
sacrifice. He based this assumption on teachings from his
grandfather about the purification process that occurs
before an individual may be sacrificed.
  Another person was brought into the room where Amanfi
was detained. Amanfi informed this man, who was named
“Kojo,” that they could save themselves from being
sacrificed if they engaged in homosexual behavior because,
according      to   his  granfather,  homosexuals     were
unacceptable for sacrifice. Even though Amanfi stated that
he was not a homosexual, he engaged in a homosexual act
with Kojo and was discovered by his captors. Several of the
“macho men” took him and Kojo outside and beat them
before bringing them to the police station. At the station,
the police informed the public that Amanfi and Kojo were
homosexuals, and Amanfi stated that a “big crowd” came to
look at them because they were naked and he feared that
he would be attacked. He explained that he knew from
witnessing prior public torture of homosexuals that his life
was endangered.
   Amanfi averred that the police beat him and Kojo daily
until Kojo died when he fell and a policeman “stepped on
his testicles.” After more than two months of such
treatment in police custody, Amanfi managed to escape
when the station was largely empty due to the need for
police coverage at polling places on an election day. He then
hitchhiked to Accra, the capital of Ghana, where he sought
refuge at his cousin’s home. The cousin refused to let
Amanfi stay at her home, however, because his reputation
as a homosexual had drawn “a lot of attention” and she
was concerned about retribution from local chieftains and
her family. Instead, Amanfi stayed in a hotel. His cousin
visited him until she received a correspondence from the
police stating that they were looking for him. With her help,
Amanfi went to the airport where an individual Amanfi
called an “immigration officer” provided him with a
Canadian passport bearing the name “Ken Oppong” and
                             7


placed him on a flight to JFK. Amanfi explained that he
only sought transit through the United States to Canada in
order to petition the Canadian authorities for asylum.
   The IJ admitted a number of exhibits into the record,
including the Department of State’s country report on
Ghana and its 1996 Profile of Asylum Claims for Ghana;
the United Kingdom’s country report on Ghana; a notarized
document from a woman identifying herself as a cousin of
Amanfi; the 1999 and 2000 reports from Amnesty
International; and the 2001 report from Human Rights
Watch on conditions in Ghana. Following the hearing, the
IJ found Amanfi subject to removal under INA
§ 212(a)(7)(A)(i)(I), for seeking admission without a valid
document, but dismissed the charge of fraud under INA
§ 212(a)(6)(C)(i) for lack of prosecution.
   The IJ also concluded that Amanfi’s testimony was not
credible. Noting that Amanfi had failed to present
corroborating evidence of the practice of human sacrifice in
Ghana and had initially told a different story to INS
officials, the IJ concluded that Amanfi was actually an
illegal resident of Canada and had fabricated his current
testimony while in detention. For this reason, the IJ denied
Amanfi’s petition for asylum, withholding of removal, and
protection under the Convention Against Torture.
   Amanfi appealed to the BIA, arguing that the IJ erred in
denying his application for withholding of removal and
asylum, which was grounded on his fear of persecution as
a homosexual if he were returned to Ghana. The BIA
dismissed Amanfi’s petition, reasoning that he could not
meet his burden of proof under the INA that he had a well-
founded fear of persecution in Ghana on account of a
protected ground. The BIA concluded that Amanfi’s
treatment by the “macho men” who kidnaped him was
based on a private dispute involving his father’s ministry.
The BIA also explained that Amanfi cannot qualify as a
member of a “particular social group” as a homosexual, a
protected social group according to Matter of Toboso-
Alfonso, 20 I. & N. Dec. 819 (BIA 1990), because he
testified that he was not in fact a homosexual. Since it
determined that Amanfi failed to meet his burden of proof
                                   8


for the asylum application, the BIA specifically declined to
address the IJ’s adverse credibility determination.
   Amanfi filed a motion for reconsideration in which he
raised several arguments: first, that the dispute with the
“macho men” was not merely personal because it concerned
his and his father’s religious beliefs; second, that the BIA
should have considered whether the “macho men” and the
Ghanian authorities persecuted him because they believed
he was a homosexual, even if he was not actually a member
of this social group; and third, that his past persecution by
Ghanian authorities indicates that it is more likely than not
that he will be tortured upon return to Ghana, a
requirement for protection under the Convention Against
Torture. The BIA did not find these arguments persuasive
and denied Amanfi’s motion. With regards to the first and
last arguments, the BIA reiterated its conclusion that
Amanfi did not present sufficient evidence to qualify for
asylum on account of religious persecution or protection
under the Convention Against Torture based on the
supposed likelihood that he would be tortured if returned to
Ghana.
  The BIA also described as being without “any legal
precedent” Amanfi’s argument that his claims should be
analyzed from the perspective of his imputed status as a
homosexual rather than actual membership in this social
group. While the BIA acknowledged that some courts have
recognized that an imputed political opinion “can exist
whatever the asylum seeker’s actual political opinion may
be,” it opined that these cases do not “support a finding
that ‘imputed’ membership in a particular social group
supports a grant of asylum relief.”
   Amanfi filed petitions for review of both BIA decisions,
which were consolidated into this appeal. He also
submitted an emergency motion for stay of his removal,
which we denied. At oral argument, Amanfi’s counsel stated
that Amanfi had been removed by the INS to Ghana. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) to review
final orders of removal.1 Our standard of review of the BIA’s

1. The removal of Amanfi before this court rendered a judgment did not
moot his petition for review of the BIA’s order of removal. See Chong v.
                                    9


findings of facts is quite deferential. While we must
ascertain whether the BIA’s factual determinations are
supported by substantial evidence, Senathirajah v. INS, 157
F.3d 210, 216 (3d Cir. 1998), only if the evidence compels
otherwise may we decline to uphold these findings. INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.3 (1992).

                II. Convention Against Torture
   Article 3 of the Convention Against Torture, as
implemented by INS regulations, prohibits removal of an
alien to a country when the alien sustains his burden of
proving that it is more likely than not that he will be
subject to torture by, at the instigation of, or with the
acquiescence of a public official. See 8 C.F.R. §§ 208.16(c)
and 208.18(a); Matter of S-V-, 22 I. & N. Dec. 1306 (BIA
2000). A petition for protection under the Convention
Against Torture differs significantly from petitions for
asylum or withholding of removal because the alien need
not demonstrate that he will be tortured on account of a
particular belief or immutable characteristic. Matter of
S-V-, supra. Rather, in assessing whether an alien is more
likely than not to be tortured in the proposed country of
removal, INS regulations identify a non-exclusive list of
factors to consider: (1) evidence of past torture inflicted on
the alien; (2) the possibility the alien could relocate to
another part of the country where his torture is unlikely; (3)
evidence of “gross, flagrant or mass violations of human
rights” in the country; and (4) any other relevant country
conditions information. 8 C.F.R. § 208.16(c)(3).
  Amanfi contends that the BIA erred when it denied his
petition for protection under the Convention Against
Torture because it allegedly overlooked evidence supporting
his claim. Without specific citation, Amanfi claims that the
record “shows that Ghanian police have a history of
inflicting human rights abuses upon individuals in its

Quarantillo, 264 F.3d 378, 385 (3d Cir. 2001) (holding that “the [BIA’s]
order of removal creates sufficient collateral consequences to render [the
alien’s] petition a live case or controversy by preventing [the alien] from
entering the United States for ten years” pursuant to 8 U.S.C.
§ 1182(a)(9)(A)(ii)).
                              10


custody.” He also argues that because he was tortured by
the police while in their custody, there is a high probability
that he would be tortured if returned to Ghana. Similarly,
Amanfi contends that the police would acquiesce in any
further torture he experienced at the hands of the “macho
men.”
   The INS responds that the record does not present any
compelling evidence that would undermine the BIA’s finding
that Amanfi is not likely to be subject to torture should he
be returned to Ghana. It points to the country condition
report compiled by the U.K. Home Office stating that there
is religious toleration in Ghana, a country whose
population is approximately 40% Christian. The Home
Office’s report also notes that while homosexuality is illegal
in Ghana, the law is not strictly enforced and
homosexuality is generally tolerated. Further, the reports
compiled by the U.S. Department of State, Amnesty
International, and Human Rights Watch do not mention
torture or mistreatment of homosexuals. While there is
evidence in the country condition reports of police brutality
and arbitrary detention, there is nothing supporting the
claim that Ghanaian authorities routinely commit “gross,
flagrant or mass violations of human rights,” a factor
militating in favor of protection under the Convention
Against Torture. 8 C.F.R. § 208.16(c)(3)(iii).
   The INS further notes that although the BIA did not
affirm the IJ’s determination that Amanfi’s testimony was
not credible, it also did not find any evidence corroborating
his story. The INS properly contends that while “evidence of
past torture inflicted upon the applicant” is a factor in
determining whether an alien qualifies for protection under
the Convention Against Torture, 8 C.F.R. § 208.16(c)(3)(i), it
is not, in and of itself, dispositive of such a claim. Amanfi’s
testimony about his past torture therefore cannot compel
the conclusion that it is more likely than not that he will be
tortured again when removed to Ghana.
  Finally, the INS emphasizes the State Department’s
explanation that the “macho men” are private actors not
associated with the government of Ghana. Their actions
alone, therefore, cannot sustain a petition under the
Convention Against Torture. However, a claim is possible if
                                    11


it is more likely than not that a public official will acquiesce
in torture by private actors. 8 C.F.R. § 208.18(a)(1). In order
to establish that Ghanian authorities would acquiesce in
torture committed by the “macho men,” Amanfi must prove
that the officials would have awareness of this torture but
“thereafter breach his or her legal responsibility to
intervene to protect such activity.” 8 C.F.R. § 208.18(a)(7).
Amanfi failed to present any evidence to sustain this
burden of proof.
  We essentially agree with the INS on this issue. Because
we do not find that the evidence in the record compels the
conclusion that Amanfi qualifies for protection under the
Convention Against Torture, we must deny his petition for
review of this claim.

          III. Asylum and Withholding of Removal
   The key element that must support a petition for asylum
and withholding of removal is the existence or fear of
persecution, committed by either private or state actors, on
account of a belief or an immutable characteristic. To
qualify for asylum, an alien must show persecution, or a
well founded fear of persecution, on account of race,
religion, nationality, membership in a particular social
group, or political opinion. INA §§ 101(a)(42)(A) and 208(a),
8 U.S.C. §§ 1101(a)(42)(A) and 1158(a); Elias-Zacarias, 502
U.S. at 481–82. The standard for withholding of removal is
slightly different. In order to successfully assert such a
petition, an alien must show that if returned to his country,
it is more likely than not that the alien’s life or freedom
would be threatened on account of race, religion,
nationality, membership in a particular social group, or
political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); INS
v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).2

2. While the standard for withholding of removal is similar to the
qualifications for protection under the Convention Against Torture, we do
not believe that our denial of Amanfi’s petition for review of his
Convention Against Torture claim automatically requires us to deny
review of his withholding of removal claim. This is because a claim for
protection under the Convention Against Torture requires proof of the
likelihood that government officials will commit or acquiesce to torture of
                                    12


   Amanfi contends that he was persecuted in Ghana by the
“macho men” on account of his religion and by both the
“macho men” and the Ghanian police because of his
imputed status as a homosexual. The BIA analyzed these
claims separately. On the issue of religious persecution, the
BIA reviewed the evidence and concluded that Amanfi had
failed to present evidence suggesting that his treatment by
the “macho men” was motivated by anything more than a
personal dispute regarding his father’s ministry. As to the
question of persecution on account of Amanfi’s imputed
status as a homosexual, the BIA declined to analyze the
facts supporting this claim because it determined that there
was no “legal precedent” endorsing this theory of
persecution. Since we employ different standards of review
of the BIA’s findings of fact and interpretation of the INA,
we too will address these claims separately.

    A.    Claim of Persecution on Account of Religion
   Amanfi does not dispute the BIA’s finding that his
persecution at the hands of the “macho men” involved a
personal dispute with his father’s ministry. He argues,
however, that the BIA should have analyzed his petition
under the “mixed motives” framework articulated in In re S-
P-, 21 I. & N. Dec. 486 (BIA 1996), which held that an alien
need only prove that the persecutor was motivated in
significant part by a protected characteristic. The BIA
recognized its precedent in In re S-P-, supra, but specifically
stated that the “mixed motive” analysis was unsupported
by the facts in this case because Amanfi did not provide
“any evidence supporting his assertion that he has been
persecuted ‘on account of’ his own religion.”
 Although religion was indeed part of his testimony,
Amanfi testified that he was persecuted because his father

the alien; by contrast, an alien seeking withholding of removal must
allege the likelihood of persecution on account of a protected ground by
either public officials or private individuals. These slight but significant
differences, e.g., torture versus persecution and government officials
compared with both public and private actors, necessitate separate
analyses of these claims. These matters will have to be developed on
remand.
                             13


had spoken out against the practices of the “macho men,”
including fetish worshiping and human sacrifice, not due to
his own faith. Thus, even though religion, or at least the
beliefs of the “macho men,” was a circumstance in Amanfi’s
persecution, the record shows that it was retaliation
against his father’s preaching — and not Amanfi’s or his
father’s belief in Christianity — that was the motivating
factor behind his persecution. The mention of religion in
the fabric of the story is insufficient to establish a
persecution claim because, as the Supreme Court noted in
Elias-Zacarias, the mere existence of a generalized motive
underlying persecution cannot establish the proposition
that the alien fears persecution on account of that motive.
502 U.S. at 482. The evidence does not establish that
Amanfi was persecuted, or has a well-founded fear of
persecution, on account of his religious faith.
   Since we have a very deferential standard of review of the
BIA’s findings of fact and may only reverse these findings if
the evidence compels us to do so, see id. at 481 n.3, we
must affirm the BIA’s conclusion that Amanfi was not
persecuted on account of his religion, but rather because of
retaliation in response to a personal dispute involving his
father. It is not claimed that this is a ground for asylum
and withholding of removal.

      B.   Claim of Persecution on Account of Imputed
                   Status as a Homosexual

 1.    Did the BIA Depart from the INS’s Interpretation
                       of the INA?
  Amanfi contends that his persecution by the “macho
men” and the Ghanian police on account of their belief that
he was homosexual, even though he is not homosexual,
qualifies as persecution on account of membership in a
social group within the meaning of INA §§ 101(a)(42)(A) and
241(b)(3). Noting that the BIA and several Courts of Appeals
have held that an alien may qualify for asylum because of
imputed political opinion, Amanfi argues that a similar
interpretation of the INA should apply for imputed
membership in a social group. The BIA summarily
                                   14


dismissed   Amanfi’s  argument,   stating   that  while
homosexuals are a protected social group, see Matter of
Toboso-Alfonso, supra, there is no “legal precedent”
supporting the doctrine that asylum may be granted
because of imputed membership in a social group.
  The INS maintained this position in its brief. However,
before oral argument, it moved to remand the case to the
BIA because of the pendency of a proposed regulation that
addressed this issue and adopted Amanfi’s view. The
proposed regulation, which has not yet been promulgated,
states in relevant part:
     An asylum applicant must establish that the
     persecutor acted, or that there is a reasonable
     possibility that the persecutor would act, against the
     applicant on account of the applicant’s race, religion,
     nationality, membership in a particular social group, or
     political opinion, or on account of what the persecutor
     perceives to be the applicant’s race, religion,
     nationality, membership in a particular social group, or
     political opinion.
65 Fed. Reg. 76588, 76597–98 (Dec. 7, 2000) (proposed
rule 8 C.F.R. § 208.15(b)) (emphasis added). The INS argued
that in light of this proposed rule, a remand is warranted
because “the adjudication of the instant case would be
facilitated if the BIA addressed how the policy expressed in
the proposed regulation affects this case.”
   In response, Amanfi agreed that the case should be
remanded to the BIA, but he also argued that we should
issue a precedential opinion because: (1) a proposed rule is
not binding on the BIA; (2) the regulation was proposed
more than two years ago and has not yet been
promulgated; (3) the INS has not indicated when this
promulgation would occur; and (4) this rule is reflective of
an opinion letter issued by the INS’s General Counsel’s
Office in 1993, see INS General Counsel Opinion Letter,
Genco Op. No. 93-1, 1993 WL 1503948 (Jan. 19, 1993),
which is summarized in the margin.3

3. The opinion letter explained the INS’s General Counsel’s position that
“[p]ersection inflicted because the persecutor erroneously imputes to the
                                    15


   When reviewing the BIA’s interpretation of the INA, we
must apply the principles of deference described in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984). See INS v. Aguirre-Aguirre, 526 U.S.
415, 424–25 (1999). We have held that “[a]lthough an
agency can change or adapt its policies, it acts arbitrarily if
it departs from its established precedents without
‘announcing a principled reason’ for the departure.”
Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)
(quoting Fertilizer Inst. v. Browner, 163 F.3d 774, 778 (3d
Cir. 1998)). We further explained that if the INS “departs
from an announced rule without explanation or an ‘avowed
alteration,’ such action could be viewed as ‘arbitrary,
capricious, [or] an abuse of discretion.’ ” Id. (quoting INS v.
Yang, 519 U.S. 26, 32 (1996)).
  Before we may determine whether the INS departed from
an established precedent, it is necessary to specify what
INS authorities are charged with interpreting the INA.
According to the INA, the Attorney General “shall be
charged with the administration and enforcement” of the
statute, and the “determination and ruling by the Attorney
General with respect to all questions of law shall be
controlling.” INA § 103(a)(1), 8 U.S.C. § 1103(a)(1). The
Supreme Court has explained that “[t]he Attorney General,
while retaining ultimate authority, has vested the BIA with
power to exercise the ‘discretion and authority conferred

victim one of the protected characteristics set forth in Section 101(a)(42)
can constitute persecution ‘on account of’ that characteristic for the
purpose of asylum or refugee analysis.” Genco Op. No. 93-1, 1993 WL
1503948 (Jan. 19, 1993). It further noted that this “view is consistent
with both the plain language of the statute and its settled administrative
interpretation.” Id. General Counsel emphasized that its interpretation of
the INA applied to all five protected characteristics equally and that there
was no logical reason for differentiating, for example, between imputed
political opinion and imputed membership in a social group. General
Counsel also explained that this view is supported by the text of the INA,
in which the “on account of” language, which refers to the persecutor’s
motivation and perspective, precedes “political opinion” as well as the
four other protected grounds, including “membership in a social group,”
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A), and thus applies to each
protected ground equally.
                                    16


upon the Attorney General by law’ in the course of
‘considering and determining cases before it.’ ” Aguirre-
Aguirre, 526 U.S. at 425 (quoting 8 C.F.R. § 3.1(d)(1)). The
Court has also stated that BIA decisions give ambiguous
terms in the INA “concrete meaning through a process of
case-by-case adjudication.” Cardoza-Fonseca, 480 U.S. at
448.
   In at least two decisions issued subsequent to the INS’s
opinion letter, the BIA adopted a rule that is contrary to its
conclusion in this case that Amanfi’s theory of imputed
membership in a social group is without legal precedent.
For example, in In re S-P-, supra, the BIA stated that
“[p]ersecution for ‘imputed’ grounds (e.g., where one is
erroneously thought to hold particular opinions or
mistakenly believed to be a member of a religious sect) can
satisfy the ‘refugee’ definition.” Similarly, in In re T-M-B-, 21
I. & N. Dec. 775 (BIA 1997), the BIA explained that in order
to qualify for asylum “the applicant must produce evidence
from which it is reasonable to believe that the harm was
motivated, at least in part, by an actual or imputed
protected ground.” Moreover, while this court and other
Courts of Appeals have not considered the specific issue of
imputed membership in a social group, there is wide
endorsement of the concept of persecution on account of
imputed political opinion, see Lukwago v. Ashcroft, No. 02-
1812, slip op. at 31 (3d Cir. May 14, 2003), and the other
cases set forth in the margin.4

4. Lukwago, No. 02-1812, slip op. at 31 (“We have held that ‘[t]he
persecution may be on account of a political opinion the applicant
actually holds or on account of one the foreign government has imputed
to him.’ ”) (quoting Balasubramanrim v. INS, 143 F.3d 157, 165 n.10 (3d
Cir. 1998)); see also Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.
2001) (acknowledging that proof of an imputed political opinion would
have qualified as persecution “on account” of political opinion under the
INA); Morales v. INS, 208 F.3d 323, 331 (1st Cir. 2000) (“There is no
doubt that asylum can be granted if the applicant has been persecuted
or has a well-founded fear of persecution because he is erroneously
thought to hold a particular political opinion.”); Lwin v. INS, 144 F.3d
505, 509 (7th Cir. 1998) (“One way that an applicant can establish
‘political opinion’ under the INA is to show an imputed political
opinion.”); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997) (“If the
                                   17


   The BIA’s conclusion in this case that Amanfi’s argument
is without “legal precedent” therefore appears directly to
contravene these BIA decisions that apply the concept of
imputation to all five protected grounds. More importantly,
the Attorney General, in commentary to the proposed
regulation cited in the INS’s motion and quoted above,
stated that the new rule was not designed to change the
law but rather “codifies the existing doctrine of imputed
political opinion, as well as the existing administrative
interpretation that this doctrine also extends to the protected
grounds other than political opinion.” 65 Fed. Reg. 76588,
76592 (Dec. 7, 2000) (emphasis added).
   In its original order and in the subsequent order denying
Amanfi’s motion for reconsideration, the BIA did not
discuss or follow its own decisions nor did it acknowledge
the Attorney General’s explanation of the “existing
administrative interpretation” of the INA, all of which are
legal precedents supporting Amanfi’s theory of persecution
on account of imputed membership in a social group.
Because the Attorney General and the BIA are charged with
interpreting the INA and the BIA in this case has departed
“from     [the   INS’s]   established   precedents   without
‘announcing a principled reason’ for the departure,”
Johnson, 286 F.3d at 700, we do not believe that it is
necessary to remand this legal issue to the BIA. We
therefore hold that persecution “on account of” membership
in a social group, as defined in INA §§ 101(a)(42)(A) and
241(b)(3), includes what the persecutor perceives to be the
applicant’s membership in a social group, and will grant
the petition for review to this limited extent and deny the
INS’s remand motion.




persecutor attributed a political opinion to the victim, and acted upon
the attribution, this imputed view becomes the applicant’s political
opinion and required under the Act.”); Cruz-Diaz v. INS, 86 F.3d 330,
332 (4th Cir. 1996) (denying applicant’s petition for review based on the
finding that “[t]he evidence does not compel the conclusion that [the
applicant] will be subjected to persecution or other harm based on actual
or imputed opinion”).
                             18


                        2.   Remedy
   Because the BIA dismissed Amanfi’s claim on legal
grounds, it did not analyze whether the evidence supports
his theory of persecution on account of imputed status as
a homosexual, a matter which is contested by the INS. We
must therefore defer to the BIA’s expertise in evaluating
petitions for asylum and withholding of removal, and
remand this case to the BIA for further consideration of
Amanfi’s claim. See INS v. Ventura, 123 S. Ct. 353, 355
(2002) (“A court of appeals ‘is not generally empowered to
conduct a de novo inquiry into the matter being reviewed
and to reach its own conclusions based on such an
inquiry.’ ”) (quoting Florida Power & Light Co. v. Lorion, 470
U.S. 729, 744 (1985)); Gallius v. INS, 147 F.3d 34, 47 (1st
Cir. 1998) (noting that remand “is the appropriate remedy
when a reviewing court cannot sustain the agency’s
decision because it has failed to offer legally sufficient
reasons for its decision”); Rhoa-Zamora v. INS, 971 F.2d 26,
34 (7th Cir. 1992) (“We will not weigh evidence that the
[BIA] has not previously considered; an appellate court is
not the appropriate forum to engage in fact-finding in the
first instance.”).
  In doing so, the BIA may choose to reach the merits of
Amanfi’s claim or it may decide to discredit his testimony,
as the IJ did, in which case there will be little evidence to
support the petition. This is, of course, a matter for the BIA
to decide de novo. See Damaize-Job v. INS, 787 F.2d 1332,
1338 (9th Cir. 1986) (articulating the Court’s “practice to
remand to the [BIA] for credibility findings whenever we
reverse a [BIA] decision in which the [BIA] has expressly
abstained from deciding the credibility issue.”).
  For the foregoing reasons, we will deny Amanfi’s petition
for review on his claims for protection under the
Convention Against Torture as well as his asylum and
withholding of removal claims on account of religious
persecution. We will grant the petition for review only on
the legal issue of Amanfi’s application for asylum and
withholding for removal because of persecution by the
“macho men” and Ghanian authorities on account of his
imputed status as a homosexual and we will remand to the
BIA for further proceedings.
                            19




A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
