     17-3935
     Akter v. Barr
                                                                                    BIA
                                                                              Poczter, IJ
                                                                       A206 297 955/956

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 18th day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNY CHIN,
 8            SUSAN L. CARNEY,
 9            CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11   _____________________________________
12
13   MOKSENA AKTER, MOHAMMAD SAIDUR
14   RAHMAN,
15            Petitioners,
16
17                   v.                                          17-3935
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                 Amy Nussbaum Gell, Gell & Gell,
25                                    New York, NY.
26
27   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
28                                    Attorney General; Song Park,
29                                    Senior Litigation Counsel; Surell
30                                    Brady, Trial Attorney, Office of
31                                    Immigration Litigation, United
32                                    States Department of Justice,
33                                    Washington, DC.
1           UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is GRANTED IN PART and DENIED IN PART.

5           Petitioners Moksena Akter and Mohammad Saidur Rahman,

6    natives and citizens of Bangladesh, seek review of a November

7    9, 2017, decision of the BIA affirming a March 1, 2017,

8    decision      of   an    Immigration    Judge   (“IJ”)   denying    Akter’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).              In re Moksena

11   Akter, Mohammad Saidur Rahman, No. A 206 297 955/956 (B.I.A.

12   Nov. 9, 2017), aff’g No. A 206 297 955/956 (Immig. Ct. N.Y.

13   City Mar. 1, 2017).            We assume the parties’ familiarity with

14   the underlying facts and procedural history in this case.

15          Under the circumstances of this case, we have reviewed

16   both    the    IJ’s      and    BIA’s   decisions   “for   the     sake   of

17   completeness.”          Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

18   524, 528 (2d Cir. 2006).           The applicable standards of review

19   are well established.            See 8 U.S.C. § 1252(b)(4)(B); Yanqin

20   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21          First, we decline to remand based on intervening caselaw,

22   as requested by Akter.            The decision cited by Akter is not

23   relevant to her case because Akter did not identify a new
                                             2
1    group on appeal.   See Matter of W-Y-C- & H-O-B-, 27 I. & N.

2    Dec. 189, 191-93 (BIA 2018).

3    Asylum and Withholding of Removal

4         To establish eligibility for asylum and withholding of

5    removal, “the applicant must establish that race, religion,

6    nationality, membership in a particular social group, or

7    political opinion was or will be at least one central

8    reason for persecuting the applicant.”    8 U.S.C.

9    § 1158(b)(1)(B)(i); id. § 1231(b)(3)(A); see also Matter of

10   C-T-L-, 25 I. & N. Dec. 341, 348 (BIA 2010).    Asylum or

11   withholding “may be granted where there is more than one

12   motive for mistreatment, as long as at least one central

13   reason for the mistreatment is on account of a protected

14   ground.”   Acharya v. Holder, 761 F.3d 289, 297 (2d Cir.

15   2014) (internal quotation marks omitted).    An applicant

16   “must provide some evidence of [a persecutor’s motives],

17   direct or circumstantial.”     INS v. Elias-Zacarias, 502 U.S.

18   478, 483 (1992); see also Manzur v. U.S. Dep’t of Homeland

19   Sec., 494 F.3d 281, 291 (2d Cir. 2007).    To demonstrate

20   that past persecution or a well-founded fear of future

21   persecution is on account of political opinion, the

22   applicant must “show, through direct or circumstantial

23   evidence, that the persecutor’s motive to persecute arises
                                     3
1    from the applicant’s political belief,” rather than merely

2    by the persecutor’s own opinion.            Yueqing Zhang v.

3    Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (emphasis

4    added).   The persecution may be on account of an opinion

5    imputed to the applicant by the persecutor, regardless of

6    whether this imputation is accurate.             See Chun Gao v.

7    Gonzales, 424 F.3d 122, 129 (2d Cir. 2005).

8        Substantial      evidence    supports      the   IJ’s    determination

9    that Akter failed to demonstrate that she was harmed by her

10   teacher or a man named Sumon on account of a protected ground.

11   See Edimo-Doualla v. Gonzales, 464 F.3d 276, 282-83 (2d Cir.

12   2006)   (applying     substantial        evidence    standard     to   nexus

13   determination).        There    is    no    direct    or    circumstantial

14   evidence that Akter’s teacher or Sumon were motivated to harm

15   her on account of her proposed social groups.                The evidence,

16   instead, supports the IJ’s conclusion that Sumon and Akter’s

17   teacher targeted Akter because they were attracted to her.

18       Substantial       evidence       also      supports     the   agency’s

19   determination that Akter was not harmed by Awami League (“AL”)

20   members   on    account   of    an   imputed     political      opinion   or

21   membership in her proposed social groups.                 Based on Akter’s

22   testimony, the IJ reasonably concluded that the AL members’

23   motivation     for   harming   Akter     was   her   social     popularity.
                                          4
1    There was no evidence that AL members targeted Akter based on

2    her membership in the social group of “powerful women who are

3    threatened.”    Akter also did not testify that the AL members

4    mentioned her activism or participation in the college drama

5    organization when they harmed her, and she provided limited

6    testimony that she was a community activist.

7         Nor did Akter establish that she was targeted for a

8    political opinion, imputed or otherwise.                 Akter did not

9    testify that the AL supporters made any statements regarding

10   her neutrality.        She also did not establish that other

11   individuals were targeted by AL supporters because they did

12   not join a political party, which is circumstantial evidence

13   that the AL was not targeting people for neutrality.                   The

14   record does not compel the conclusion that AL supporters

15   attacked   Akter   because     of       her      political   opinion    of

16   neutrality, rather than because of her refusal to join their

17   political party and their desire to grow their membership

18   through her popularity.     See Elias-Zacarias, 502 U.S. at 481-

19   83   (holding   that   claim   of       forced    recruitment   was    not

20   persecution based on political opinion).              Thus, substantial

21   evidence supports the IJ’s determination that Akter did not

22   establish that AL supporters had or would harm her based on

23   her political opinion or membership in a social group, rather
                                         5
1    than because of her popularity and their desires to increase

2    their membership.    See id. at 483.   This nexus determination

3    is dispositive of both asylum and withholding of removal.

4    8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

5    CAT

6          “[T]he CAT expressly prohibits the United States from

7    returning any person to a country in which it is more likely

8    than not that he or she would be in danger of being subjected

9    to torture.”   Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.

10   2004) (internal quotation marks omitted); see also 8 C.F.R.

11   § 1208.16(c)(2)(“[T]he burden of proof is on the applicant

12   . . . to establish that it is more likely than not that he or

13   she would be tortured if removed to the proposed country of

14   removal.”).

15         Torture is defined as any act by which severe pain
16         or suffering, whether physical or mental, is
17         intentionally inflicted on a person for such
18         purposes as obtaining from him or her or a third
19         person information or a confession, punishing him
20         or her for an act he or she or a third person has
21         committed or is suspected of having committed, or
22         intimidating or coercing him or her or a third
23         person, or for any reason based on discrimination
24         of any kind, when such pain or suffering is inflicted
25         by or at the instigation of or with the consent or
26         acquiescence of a public official or other person
27         acting in an official capacity.
28
29   8 C.F.R. § 1208.18(a)(1).      The agency must consider “all

30   evidence relevant to the possibility of future torture,”
                                    6
1    including: “[e]vidence of past torture,” evidence regarding

2    the possibility of internal relocation, “[e]vidence of gross,

3    flagrant, or mass violations of human rights,” and “[o]ther

4    relevant information regarding conditions in the country of

5    removal.”     8 C.F.R. § 1208.16(c)(3)(i)-(iv).   We review the

6    agency’s determination regarding the likelihood of torture

7    for substantial evidence.     See Hui Lin Huang v. Holder, 677

8    F.3d 130, 134 (2d Cir. 2012) (“A determination of what will

9    occur in the future and the degree of likelihood of the

10   occurrence has been regularly regarded as fact-finding . . .

11   .”); see also Joaquin-Porras v. Gonzales, 435 F.3d 172, 181

12   (2d Cir. 2006) (reviewing findings of fact regarding CAT claim

13   for substantial evidence).

14       The agency did not adequately explain its denial of CAT

15   protection.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

16   F.3d 315, 329 (2d Cir. 2006) (the agency commits legal error

17   if its decision is made “without rational justification” or

18   is “based on a legally erroneous standard.”).     “[W]e require

19   a certain minimum level of analysis from the IJ and BIA

20   opinions . . . , and indeed must require such if judicial

21   review is to be meaningful.”        Poradisova v. Gonzales, 420

22   F.3d 70, 77 (2d Cir. 2005).    “We also require some indication


                                     7
1    that    the       IJ    considered       material        evidence      supporting    a

2    petitioner’s claim.”              Id.

3          The IJ denied asylum and withholding of removal solely on

4    nexus grounds and noted that Akter no longer had a well-

5    founded fear of future harm by Sumon.                     The IJ did not address

6    whether Akter had a well-founded fear of future persecution

7    by AL supporters.            Thus, it does not follow that because the

8    IJ denied asylum based on a lack of nexus that the IJ was

9    also required to deny Akter’s CAT claim, which does not

10   require nexus to a protected ground.                       Cf. Paul v. Gonzales,

11   444 F.3d 148, 157 (2d Cir. 2006).                        Moreover, the fact that

12   Akter had not been harmed in four years is of little probative

13   value because Akter was not in Bangladesh for most of the

14   four-year         period.         The    IJ       also    did    not    provide     any

15   explanation for her finding that Akter would not be tortured

16   by a government official or with the acquiescence of a

17   government official.              Accordingly, remand is warranted for

18   the    agency      to    provide    further         explanation        regarding    its

19   denial of Akter’s CAT claim.                      See Ivanishvili v. U.S. Dep’t

20   of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (finding that

21   the    “IJ    .    .    .   did   not    evaluate,        or    even    meaningfully

22   acknowledge”           testimony        and       evidence      favorable    to     the


                                                   8
1    petitioner,   “and   we   must    therefore   give   the    IJ   [an]

2    opportunity to do so”).

3        For the foregoing reasons, the petition for review is

4    DENIED in part as to asylum and withholding of removal and

5    GRANTED in part as to CAT relief and the case is REMANDED to

6    the BIA for further proceedings consistent with this order.

7    As we have completed our review, any stay of removal that the

8    Court previously granted in this petition is VACATED, and any

9    pending motion for a stay of removal in this petition is

10   DISMISSED as moot.   Any pending request for oral argument in

11   this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

14                                    FOR THE COURT:
15                                    Catherine O’Hagan Wolfe,
16                                    Clerk of Court




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