     03-40052-ag(L)
     Manzur v. DHS

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                   – – – – – –
 5
 6                                August Term, 2006
 7
 8            (Argued: January 26, 2007        Decided: July 13, 2007)
 9
10              Docket Nos. 03-40052-ag(L), 03-40054-ag(con),
11                    03-40056-ag(con), 03-40068-ag(con)
12    ________________________________________________________________
13
14                     RANA YASMEEN MANZUR, ZOHEB MANZUR,
15                 SHAFQAT MUHAMMED MANZUR, and RUBANA MANZUR
16
17                                            Petitioners,
18
19                                      -v.-
20
21                    U.S. DEPARTMENT OF HOMELAND SECURITY,
22
23                                      Respondent.
24    ________________________________________________________________
25
26   Before:   KEARSE, SOTOMAYOR, Circuit Judges, and KOELTL, District
27             Judge.*
28    ________________________________________________________________
29
30        On petition for review of a decision of the Board of
31   Immigration Appeals summarily affirming the Immigration Judge’s
32   denial of the petitioners’ applications for asylum and withholding
33   of deportation pursuant to the Immigration and Nationality Act and
34   withholding of deportation under the Convention Against Torture.
35   Because the decision of the Immigration Judge is deficient in
36   several significant respects, depriving the Court of the
37   opportunity to conduct a meaningful judicial review, the petition
38   for review is GRANTED. The decision of the BIA is VACATED, and
39   the case is REMANDED for further proceedings consistent with this
40   opinion.
41
42                         WALTER   H.   RUEHLE,   Legal   Aid   Society,
43                              Rochester, New York, for Petitioners.
44
45                         JOHN    C. TRUONG, Assistant United States
46                                Attorney, Washington, D.C. (Kenneth L.

          *
            The Honorable John G. Koeltl of the United States District Court
     for the Southern District of New York, sitting by designation.

                                          1
 1                               Wainstein, United States Attorney for the
 2                               District of Columbia, and Madelyn E.
 3                               Johnson   and    Heather   R.   Phillips,
 4                               Assistant   United    States   Attorneys,
 5                               Washington, D.C., on the brief), for
 6                               Respondent.
 7
 8
 9   KOELTL, District Judge:

10        Rana Yasmeen Manzur and three of her adult children, Zoheb

11   Manzur, Shafqat Muhammed Manzur, and Rubana Manzur, all natives

12   and citizens of Bangladesh, petition for review of the May 15,

13   2003 orders of the Board of Immigration Appeals (“BIA”) affirming

14   without opinion the January 31, 2002 decision of Immigration Judge

15   (“IJ”) Michael Rocco, denying the petitioners’ applications for

16   asylum and withholding of deportation (now “withholding of

17   removal”) pursuant to the Immigration and Nationality Act (“INA”

18   or the “Act”) and withholding of deportation under the Convention

19   Against Torture (“CAT”).1    Because the IJ’s analysis is deficient

20   in several significant respects, depriving this Court of the

21   opportunity to conduct a meaningful judicial review, we grant the

22   petition, vacate, and remand.

23

24

25

26

          1
            The procedure now referred to as “withholding of removal” was
     previously described as “withholding of deportation,” the term used in
     the IJ’s decision. See Tandia v. Gonzales, 437 F.3d 245, 247 n.5 (2d
     Cir. 2006).

                                        2
 1                                      I.

 2                                      A.

 3        The petitioners are the immediate family members of the late

 4   Major General Mohammad Abul Manzur, a former high-ranking official

 5   in the Bangladeshi military and a leading Bengali “freedom

 6   fighter” in the 1971 Bangladeshi war for independence from

 7   Pakistan.   Rana Manzur, the lead petitioner, is General Manzur’s

 8   widow, and co-petitioners Zoheb, Shafqat, and Rubana Manzur are

 9   three of the couple’s four children.2

10        The last time Rana Manzur saw her husband, and the children

11   their father, was in May 1981 when three military officers entered

12   the Manzurs’ home in the middle of the night and took General

13   Manzur away.   According to the petitioners, that incident marked

14   the beginning of a pattern of persecution that lasted

15   approximately twelve years, through 1993, around the time the last

16   of the petitioners, Rana Manzur, finally left Bangladesh.

17        The following morning, after General Manzur was taken away,

18   Rana Manzur and her four young children awoke to find the

19   telephone disconnected and their normal security detail replaced

20   by more than one hundred armed guards, acting under military

21   command.    Rana Manzur also learned that the night before, the same


          2
            The fourth child, Karishma Manzur, had her applications for
     asylum and withholding of deportation under the Act, and withholding of
     deportation under the CAT, denied together with those of the rest of her
     family, but she was granted a suspension of deportation and thus is not
     a party to this petition for review.

                                        3
 1   night General Manzur was taken away, the Bangladeshi president,

 2   Ziaur Rahman (known as “Zia”), had been assassinated.    When Rana

 3   Manzur tried to escape to find a telephone to call her husband,

 4   she was captured by the guards, returned to her home, and

 5   handcuffed.    Her children were tied up.   The guards then looted

 6   the house.    Rana Manzur was handcuffed intermittently over the

 7   next several days as the family remained under house arrest.

 8           About three days after their house arrest began, a Lieutenant

 9   Colonel Mohammed Abdul Awal, who was married to General Manzur’s

10   younger sister, came to visit Rana Manzur at her home.    Colonel

11   Awal was a “razakar,” a Bengali officer formerly in the Pakistani

12   army who fought against Bangladeshi independence in the 1971 war

13   and against freedom fighters like General Manzur.     Colonel Awal

14   convinced Rana Manzur to leave her home and accompany him to

15   Dhaka, where he told her General Manzur had been taken.

16           Escorted by Colonel Awal and armed guards, the family was

17   transported by military helicopter to the capital city of Dhaka.

18   Once there, the family was driven to a two-story house in a remote

19   area.    They never saw General Manzur.   Instead, for the next

20   month, the family was detained in that house, confined to a single

21   room on the second floor.    During that time, the family was under

22   constant guard by armed men dressed in civilian attire.    These men

23   told Rana Manzur that they were with the “foreign service,” but

24   she suspected that they were with the Directorate of General



                                        4
 1   Forces Intelligence (“DGFI”), a government intelligence

 2   organization, then headed by a razakar.      The guards refused to

 3   tell Rana Manzur why the family was being detained.      After about a

 4   month, the family was released.

 5        Once released, Rana Manzur learned that her husband, General

 6   Manzur, had been killed.   According to the account provided by the

 7   Bangladeshi government, General Manzur was executed for his

 8   alleged role in a coup d’etat attempt that led to President Zia’s

 9   assassination.   In addition, thirteen other military officers,

10   eleven of whom were freedom fighters, were eventually executed for

11   their alleged involvement in the coup, including a nephew of

12   General Manzur; for the same alleged reason, two hundred freedom

13   fighters were dismissed from the army.      Allegedly, Lieutenant

14   General Hossain Mohammed Ershad, a razakar who was then head of

15   the Bangladeshi army, ordered General Manzur’s execution.

16        The petitioners contend--consistent with at least one account

17   of the events surrounding the 1981 coup--that General Ershad

18   fabricated General Manzur’s involvement in the alleged coup and

19   orchestrated the president’s assassination as part of a high-level

20   conspiracy designed simultaneously to eliminate the president,

21   suppress political opposition from the freedom fighters,

22   particularly General Manzur, and clear the path for General

23   Ershad’s eventual rise to power.       In 1982, General Ershad seized

24   control from Bangladesh’s interim government in a bloodless,



                                        5
 1   military coup, imposed martial law, and, in 1983, declared himself

 2   president.

 3        The petitioners allege that General Ershad was the driving

 4   force behind their persecution in Bangladesh, both before and

 5   after their release from detention.   A friend in the military

 6   informed Rana Manzur that after the 1981 coup, General Ershad

 7   wanted to kill her and her children, but was talked out of the

 8   idea by other officers.   Another friend, whose husband was in the

 9   military and privy to such information, informed Rana Manzur of a

10   government report alleging that she was involved in antigovernment

11   activity.

12        After the Manzurs’ release from confinement, the family

13   remained under constant surveillance, which lasted throughout

14   their time in Bangladesh; they were followed frequently by what

15   they perceived to be agents of the DGFI.   For about six months

16   after their release, the petitioners lived with various extended

17   family members, but were forced to move frequently, in part

18   because these family members were fearful of what they perceived

19   to be a significant threat from ongoing government surveillance.

20   At this time, the DGFI would come to the house where the

21   petitioners were staying and ask personal questions of those with

22   whom the petitioners lived.

23        During their time in Bangladesh, the petitioners allege that

24   they suffered other harms as well, which they attributed to



                                      6
 1   General Ershad and his regime.   These harms included alleged

 2   economic privation, based on, for example, the government’s

 3   refusal to provide Rana Manzur with the benefits to which she

 4   believed she was entitled as a military officer’s widow,

 5   obstruction of her employment opportunities, and the denial of a

 6   bank loan to start a business.   These alleged harms also included,

 7   among other things, restrictions on travel, societal

 8   discrimination, the denial of medical care to Rubana Manzur, and

 9   several attempted rapes of Rana Manzur by an army officer who

10   accompanied her and her daughter on a trip outside the country.

11        In December 1990, General Ershad was ousted from power and

12   forced to resign by a democratic movement led in part by Begum

13   Khaleda Zia, the widow of former President Zia.   Khaleda Zia was

14   elected Prime Minister of Bangladesh and assumed the office in

15   March 1991.   Between September 1990 and September 1991, all of the

16   petitioners except for Rana Manzur left Bangladesh for the United

17   States.

18        Rana Manzur remained in Bangladesh after General Ershad was

19   ousted from power to investigate General Ershad’s involvement in

20   her husband’s death and to pursue his prosecution for the

21   execution of her husband.   She was inspired by campaign statements

22   made by Khaleda Zia while running for Prime Minister accusing

23   General Ershad of the assassination of Khaleda Zia’s husband,

24   former President Zia, and stating that General Ershad should be



                                      7
 1   brought to justice.   Immediately after General Ershad resigned,

 2   Rana Manzur began speaking with lawyers about the possibility of

 3   prosecuting General Ershad and, after Khaleda Zia’s election as

 4   Prime Minister, attempted to meet and speak with Prime Minister

 5   Zia on the subject.   Her efforts, however, were unsuccessful.

 6   Prime Minister Zia refused to meet with Rana Manzur, and the

 7   lawyers with whom Rana Manzur spoke refused to take the case, at

 8   least one of whom expressed fear for his safety.

 9        In 1992, after Rana Manzur commenced her efforts to have

10   General Ershad prosecuted, she began receiving threatening phone

11   calls.   The calls became more frequent in 1993.   The calls

12   normally came in the middle of the night.   The callers told her

13   that they knew her every move, knew about her attempts to meet

14   with Prime Minister Zia, and threatened that if she continued her

15   efforts, she would suffer the same fate as her husband.   Apart

16   from the threatening anonymous calls, Rana Manzur received one

17   call from a Major Mizzan, a member of Prime Minister Zia’s

18   political party and a family friend, who advised her not to do

19   “anything silly” and not to pursue the subject, because she should

20   remember how her husband died.

21        Around this time, Rana Manzur was also visited on several

22   occasions by the “anticorruption police,” who asked her personal

23   questions about her life, income, and children.    Further, after

24   her absence from a military ceremony in 1993, she received calls



                                      8
 1   from the DGFI inquiring as to her absence and accusing her of

 2   trying to “conflict with the government.”    Finally, in the fall of

 3   1993, Rana Manzur observed an army jeep with what she perceived to

 4   be DGFI agents parked openly in front of her house for the first

 5   time.    After that, she abandoned her efforts to pursue General

 6   Ershad’s prosecution, went into hiding, and began seeking a way to

 7   leave for the United States.    She entered the United States

 8   several months later, in January 1994, on a visitor’s visa.

 9

10                                      B.

11           The IJ held a series of hearings on the petitioners’

12   applications for asylum and withholding of deportation.    The

13   hearings commenced on July 22, 1997 and concluded with a final

14   hearing in January 2000.    In a written decision dated January 31,

15   2002, the IJ denied the petitioners’ applications, but granted the

16   petitioners’ requests for voluntary departure.

17           The IJ found that the petitioners had “failed to show that

18   their experiences, whether considered singly or in the aggregate,

19   establish persecution within the meaning of the [INA].”    While the

20   IJ did not appear to question the credibility of the petitioners

21   with respect to the individual incidents about which they

22   testified and provided evidence, he analyzed each of the incidents

23   and found that each incident did not support a finding of

24   persecution.    He found, for example, that the petitioners’ release



                                        9
 1   from confinement in 1981 “without harm” did not rise to the level

 2   of persecution or reveal action motivated by a desire to punish

 3   the petitioners based on a protected ground such as membership in

 4   a particular social group or political opinion.   He found that the

 5   petitioners’ testimony about harassment by individuals they

 6   believed to be agents of the government of Bangladesh did not

 7   describe harm that rose to the level of persecution under the INA.

 8   The IJ rejected any claims of economic deprivation because the

 9   petitioners failed to establish that they were unable to support

10   themselves, and because their economic conditions were more

11   consistent with economic reality than with conspiratorial design.

12   The IJ also found that the petitioners had not established that

13   whatever threats they received constituted persecution or

14   persecution on account of a protected ground.

15        On May 15, 2003, the BIA issued a separate order for each

16   petitioner affirming without opinion the decision of the IJ.

17   Thereafter, the petitioners filed this petition for review.

18

19                                  II.

20        To qualify for asylum, which is available at the Attorney

21   General’s discretion, an applicant bears the burden of

22   establishing that the applicant is “unable or unwilling” to return

23   to the applicant’s native country because of persecution or a

24   well-founded fear of persecution “on account of” a protected



                                     10
 1   ground:   “race, religion, nationality, membership in a particular

 2   social group, or political opinion.”   8 U.S.C. §§ 1101(a)(42),

 3   1158; see Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir.

 4   2006); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

 5   2004).    While “persecution” is not defined in the INA, this Court

 6   has explained that

 7        persecution includes more than threats to life and
 8        freedom, and therefore encompasses a variety of forms of
 9        adverse   treatment,    including   non-life-threatening
10        violence and physical abuse, or non-physical forms of
11        harm such as the deliberate imposition of a substantial
12        economic disadvantage.    In short, persecution is the
13        infliction of suffering or harm upon those who differ on
14        the basis of a protected statutory ground. . . .
15
16   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.

17   2006) (internal citations, alterations, and quotation marks

18   omitted).   A showing of past persecution on account of a protected

19   ground triggers a rebuttable presumption that the applicant has a

20   well-founded fear of future persecution on that ground.    See Uwais

21   v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007); Secaida-

22   Rosales v. I.N.S., 331 F.3d 297, 306 (2d Cir. 2003).

23        In contrast to asylum, withholding of removal (formerly

24   “withholding of deportation,” see supra note 1, at 2) is

25   nondiscretionary, but requires the applicant to satisfy the more

26   stringent showing that “it is more likely than not” that the

27   applicant’s “‘life or freedom would be threatened’” on account of

28   one of the protected grounds if the applicant were returned to the

29   applicant’s native country.   Ramsameachire, 357 F.3d at 178


                                       11
 1   (quoting 8 U.S.C. § 1231(b)(3)(A)); see Edimo-Doualla, 464 F.3d at

 2   281; Yan Fang Zhang v. Gonzales, 452 F.3d 167, 172 (2d Cir. 2006).

 3   To obtain withholding of removal under the CAT, an applicant must

 4   show that it is more likely than not that the applicant would be

 5   tortured if removed.   8 C.F.R. § 208.16(c); see Edimo-Doualla, 464

 6   F.3d at 281.

 7        Where, as here, the BIA affirms the decision of the IJ

 8   without issuing an opinion, this Court reviews the decision of the

 9   IJ directly, as the final agency determination.   See Twum v.

10   I.N.S., 411 F.3d 54, 58 (2d Cir. 2005); Secaida-Rosales, 331 F.3d

11   at 305; see also 8 C.F.R. § 1003.1(e)(4).

12        Legal questions, including mixed questions of law and fact

13   and the application of law to fact, are reviewed de novo.   See

14   Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005); Secaida-

15   Rosales, 331 F.3d at 307.   This Court reviews the IJ’s factual

16   findings under the substantial evidence standard; findings of fact

17   are treated as “conclusive unless any reasonable adjudicator would

18   be compelled to conclude to the contrary.”   8 U.S.C.

19   § 1252(b)(4)(B); see also Zhou Yun Zhang v. U.S. I.N.S., 386 F.3d

20   66, 73 (2d Cir. 2004).   An IJ’s factual finding will be affirmed

21   if it is “supported by evidence that is ‘reasonable, substantial,

22   and probative’ when considered in light of the record as a whole.”

23   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.




                                      12
 1   2005) (quoting Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir.

 2   2000)).

 3        Despite the deference typically afforded IJ and BIA

 4   decisions, this Court “require[s] a certain minimum level of

 5   analysis from the IJ and BIA opinions denying asylum, and indeed

 6   must require such if judicial review is to be meaningful.”

 7   Poradisova, 420 F.3d at 77.    Where the BIA has affirmed without

 8   issuing an opinion, our review is limited “‘to the reasoning of

 9   the IJ, and we will not search the record independently for a

10   basis to affirm the BIA.’”    Jin Chen, 426 F.3d at 113 (quoting

11   Secaida-Rosales, 331 F.3d at 305); see also Cao He Lin v. U.S.

12   Dep’t of Justice, 428 F.3d 391, 400 (2d Cir. 2005).    “[T]he

13   immigration court must adequately link its decision to the record

14   evidence in a reasoned opinion that properly applies the

15   law. . . .”   Ivanishvili, 433 F.3d at 337.

16        This Court retains substantial authority to vacate and remand

17   BIA and IJ decisions that result from flawed reasoning, a

18   sufficiently flawed fact-finding process, or the application of

19   improper legal standards.    See Rizal v. Gonzales, 442 F.3d 84, 89

20   (2d Cir. 2006); Cao He Lin, 428 F.3d at 400–01, 406; see also

21   Ivanishvili, 433 F.3d at 337.    This Court also will not hesitate

22   to vacate and remand where the BIA or IJ analysis is insufficient

23   to determine whether the correct legal standard was applied.    See

24   Beskovic v. Gonzales, 467 F.3d 223, 224 (2d Cir. 2006); Mirzoyan



                                       13
 1   v. Gonzales, 457 F.3d 217, 221 (2d Cir. 2006) (per curiam).    Such

 2   defects “are not excused by the fact that a hypothetical

 3   adjudicator, applying the law correctly, might also have denied

 4   the petition for asylum.”    Jin Shui Qiu v. Ashcroft, 329 F.3d 140,

 5   149 (2d Cir. 2003).   This Court “will vacate BIA conclusions, as

 6   to the existence or likelihood of persecution, that a perfectly

 7   reasonable fact-finder could have settled upon, insofar as the BIA

 8   either has not applied the law correctly, or has not supported its

 9   findings with record evidence.”    Id.

10        Finally, even if an IJ’s decision contains errors, the

11   decision will not be vacated and remanded if doing so would be

12   futile.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339

13   (2d Cir. 2006).   This Court will decline a remand as futile if we

14   can “‘confidently predict’ that the agency would reach the same

15   decision absent the errors that were made.”   Id. (quoting Cao He

16   Lin, 428 F.3d at 395); see also Edimo-Doualla, 464 F.3d at 282.

17

18                                     III.

19        The IJ in this case found, among other things, that the

20   petitioners failed to establish past persecution within the

21   meaning of the Act.   The IJ never made a specific adverse

22   credibility determination.   Instead, the IJ analyzed each of the

23   petitioners’ alleged incidents of persecution seriatim and

24   disposed of each claim individually by concluding--for various



                                        14
 1   reasons--that the incidents did not constitute past persecution.

 2   Cf. Edimo-Doualla, 464 F.3d at 282.   The IJ’s finding that the

 3   petitioners failed to establish past persecution is deficient in

 4   several respects.   The IJ’s analysis is inadequate for us to

 5   determine whether he properly considered the petitioners’ claims

 6   in the aggregate, and his individual analysis of several of the

 7   alleged incidents of harm contains both legal and factual errors.

 8   Because we cannot confidently predict whether the IJ would adhere

 9   to his decision absent these defects, we vacate the decision and

10   remand the case for further consideration.

11

12                                    A.

13        The IJ’s analysis is inadequate for this Court to determine

14   whether the IJ properly considered in the aggregate the incidents

15   of harm constituting the petitioners’ claim of past persecution.

16   While the IJ recited that he considered the petitioners’

17   experiences both singly and in the aggregate, there is no

18   reasoning in the decision that reflects that he did so.    He

19   considered each of the incidents separately without determining

20   how they affected the significance of the other incidents.

21   However, this Court has cautioned against precisely this sort of

22   approach.   See Poradisova, 420 F.3d at 79 (“Also troubling is the

23   IJ’s apparent (and erroneous) technique of addressing the severity




                                      15
 1   of each event in isolation, without considering its cumulative

 2   significance.”); see also Edimo-Doualla, 464 F.3d at 283.

 3        “Taking isolated incidents out of context may be misleading.

 4   The cumulative effect of the applicant’s experience must be taken

 5   into account.”   Poradisova, 420 F.3d at 80 (quoting Office of the

 6   United Nations High Commissioner for Refugees, Handbook on

 7   Procedures and Criteria for Determining Refugee Status Under the

 8   1951 Convention and the 1967 Protocol Relating to the Status of

 9   Refugees (Geneva 1992)); see also Edimo-Doualla, 464 F.3d at 283

10   (“A series of incidents of mistreatment may together rise to the

11   level of persecution even if each incident taken alone does

12   not.”).

13        The petitioners’ claim of past persecution in this case is

14   primarily predicated on the alleged pattern of harms to which the

15   petitioners were subjected over approximately a twelve-year period

16   in Bangladesh.   This pattern of incidents is significant in at

17   least two respects.   First, accumulation of harm from the

18   individual incidents may rise to the level necessary for

19   persecution even though an individual incident may not.    Second,

20   “the motive for the harm inflicted must be analyzed in light of

21   the context in which the harm occurred.”   Uwais, 478 F.3d at 517

22   (emphasis added).   The pattern provides context for the

23   petitioners’ claims and may lend evidentiary support to a

24   conclusion that individual incidents of harm were in fact “on



                                      16
 1   account of” a ground protected by the Act, such as political

 2   opinion or social group membership.

 3        The IJ’s practice of dividing this pattern of harms into

 4   isolated incidents and disposing of each on different grounds,

 5   without explaining the cumulative significance--if any--of each of

 6   these harms on the petitioners’ aggregate claim of persecution,

 7   both misconstrues the nature of the petitioners’ claim and

 8   deprives this Court of the opportunity to review meaningfully any

 9   aggregate analysis the IJ may have conducted.     Thus, although the

10   IJ stated that he considered the petitioners’ claim both “singly”

11   and “in the aggregate,” there is no analysis in the decision that

12   shows that the IJ correctly applied this standard.

13

14                                     B.

15        Apart from the IJ’s apparent failure to consider adequately

16   the petitioners’ claim of past persecution in the aggregate, the

17   IJ also erred in his individual analysis of several of the alleged

18   incidents of harm.3

19

20

21


          3
            Although we discuss the IJ’s analysis of certain individual
     claims, the IJ should address and--if appropriate--consider, as part of
     his aggregate analysis, all of the events that the petitioners have
     alleged as contributing to their persecution. See supra at 7–8 (listing
     other alleged harms).

                                       17
 1                                    1.

 2        First, the IJ erred in analyzing whether the petitioners’

 3   month-long confinement in 1981 was persecution on account of a

 4   protected ground.   The IJ concluded, without further explanation,

 5   that the petitioners’ “release from confinement in 1981 without

 6   harm does not [1] describe harm that rises to the level of

 7   persecution or [2] reveal action motivated by a desire to punish

 8   the [petitioners] on account of familial relationship, political

 9   beliefs or any political belief imputed to them.”   The IJ’s

10   conclusions are unsupported.

11        The meaning of the IJ’s finding that the petitioners were

12   released “without harm” is unclear, and to the degree that it

13   means that their confinement did not support a finding of

14   persecution, it is unfounded.   If the IJ meant, somewhat

15   trivially, that the petitioners suffered no harm at the moment of

16   their release, the IJ failed to consider adequately the harm

17   suffered during the petitioners’ month-long confinement.    The

18   phrase “without harm” could also be a finding that the

19   petitioners’ month-long detention was not at all harmful.    If so,

20   the IJ’s finding is not supported by substantial evidence.     For

21   example, the IJ did not appear to consider that the petitioners

22   have been diagnosed with post-traumatic stress disorder based on

23   their alleged persecution in Bangladesh, which includes their

24   detention by authorities.   Finally, “without harm” might refer to



                                      18
 1   the fact that the petitioners did not allege that they suffered

 2   physical harm during their month-long detention.   If the IJ meant

 3   to suggest that a showing of physical harm is always required to

 4   demonstrate persecution, this conclusion was error.   No such

 5   requirement has ever been established.   See Ivanishvili, 433 F.3d

 6   at 341 (“[P]ersecution includes . . . non-life-threatening

 7   violence and physical abuse or non-physical forms of harm such as

 8   the deliberate imposition of a substantial economic disadvantage.”

 9   (internal quotation marks, alterations, and citations omitted)).

10        Other than the statement that the petitioners were released

11   “without harm,” the IJ provided no further explanation for his

12   finding that the petitioners’ month-long confinement did not rise

13   to the level of persecution.   The IJ thus failed adequately to

14   link his decision to the evidence in the record and in doing so

15   deprived this Court of the opportunity to exercise any meaningful

16   review of this finding.

17        The IJ also rejected the evidence of confinement as a factor

18   in establishing a claim of past persecution because he found that

19   there was no evidence that those responsible for the confinement

20   sought to harm the petitioners “on account of familial

21   relationship, political beliefs or any political belief imputed to

22   them.”

23        The IJ noted that “there is no persuasive evidence that those

24   responsible [for General Manzur’s death] sought to harm the



                                      19
 1   [petitioners] for his opinions.”     However, an asylum applicant can

 2   establish a persecutor’s motives by either direct or

 3   circumstantial evidence.    See I.N.S. v. Elias-Zacarias, 502 U.S.

 4   478, 483 (1992); Uwais, 478 F.3d at 517.

 5        In this case, the petitioners were detained without

 6   explanation immediately after General Manzur was taken away by

 7   military officers in the middle of the night and, as petitioners

 8   later learned, executed.    The petitioners’ relationship to General

 9   Manzur was no secret.    Rana Manzur repeatedly asked about her

10   husband throughout the family’s detention.     Furthermore, General

11   Ershad and Colonel Awal, who took the petitioners into detention,

12   were members of a political group that General Manzur had fought

13   against.   Indeed, there was evidence that General Ershad wanted to

14   kill Rana Manzur and her children after the 1981 coup, but was

15   dissuaded from doing so.    At the very least, the IJ erred in

16   apparently failing to consider this probative circumstantial

17   evidence that the Manzurs were detained on account of General

18   Manzur’s political opinions that were imputed to them or because

19   of their membership in a particular social group, defined by their

20   familial relationship to General Manzur.4     See Cao He Lin, 428


          4
            The IJ’s decision appears to assume that “familial relationship”
     may be a protected ground for asylum purposes within the broader
     category of membership in a particular social group, but did not discuss
     this issue. See, e.g., In re A-M-E, 24 I. & N. Dec. 69, 73–74 (BIA Jan.
     31, 2007) (discussing the standard for social group membership). We do
     not address whether familial relationship may constitute a “particular
     social group” under the INA, in light of the Supreme Court’s
     determination that the BIA must decide this question in the first

                                        20
 1   F.3d at 400; Jin Shui Qiu, 329 F.3d at 149 (holding that all

 2   factual assertions in a claim must be considered unless the

 3   evidence is “too insignificant to merit discussion” (internal

 4   quotation marks omitted)).

 5        The IJ also appears to have imposed an overly stringent

 6   burden of proof on the petitioners in analyzing whether the

 7   petitioners’ month-long detention was on account of a protected

 8   ground.   In considering this issue, the IJ speculated that because

 9   the petitioners’ confinement occurred during the chaotic period

10   following the assassination of President Zia, “their temporary

11   confinement may have had purposes unrelated to any persecution on

12   account of political views or family affiliation.”      However, “an

13   asylum applicant need not show with absolute certainty why the

14   events occurred, but rather, only that the harm was motivated, in

15   part, by an actual or imputed protected ground.”      Uwais, 478 F.3d

16   at 517; accord Osorio v. I.N.S., 18 F.3d 1017, 1028 (2d Cir.

17   1994).    The IJ appears to have applied a stricter standard,



     instance. Gonzales v. Thomas, 547 U.S. 183, 186–87 (2006) (per curiam);
     see also Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d Cir. 2006) (per
     curiam) (noting that an individual IJ’s interpretation, “even if
     summarily affirmed by the BIA, [is] not sufficient to constitute the
     agency’s interpretation”). Nor do we address whether familial
     relationship may form the basis of an imputed political opinion, as
     several other courts of appeals have suggested. See, e.g., Dia v.
     Ashcroft, 353 F.3d 228, 255 (3d Cir. 2003) (en banc) (finding reasonable
     petitioner’s conclusion that military officials raped his wife because
     of his alleged involvement with rebels); Navas v. I.N.S., 217 F.3d 646,
     659 n.18 (9th Cir. 2000) (“Where police beat and threaten the spouse of
     a known dissident, it is logical, in the absence of evidence pointing to
     another motive, to conclude that they did so because of the spouse’s
     presumed guilt by association.”).

                                        21
 1   requiring the petitioners to disprove speculative alternative

 2   explanations and failing to recognize that asylum can be based on

 3   persecution that is motivated in part on a protected ground.    This

 4   was legal error.

 5

 6                                      2.

 7           The IJ also erred in his analysis of the petitioners’ claim

 8   of persecution based on the constant surveillance to which the

 9   family was subjected after their release from detention.    The IJ

10   concluded that the petitioners’ “alleged harassment by unknown

11   individuals believed to be agents of the government does not

12   describe harm that rises to the level of persecution under the

13   Act.”    The only asserted basis for this conclusion was that

14   “[t]here is no evidence in this record that any of the

15   [petitioners] were ever arrested, detained or physically abused by

16   the conduct described.”    This statement was plainly wrong because

17   all of the petitioners had been detained for more than a month in

18   1981.    Assuming that the IJ was referring solely to the subsequent

19   surveillance, the IJ appears to have used an overly restrictive

20   definition of persecution.    There is no requirement that a

21   petitioner claiming past persecution allege either detention or

22   physical harm.    See Ivanishvili, 433 F.3d at 341; see also

23   Begzatowski v. I.N.S., 278 F.3d 665, 669 (7th Cir. 2002) (“Types

24   of actions that might cross the line from harassment to



                                        22
 1   persecution include:   detention, arrest, interrogation,

 2   prosecution, imprisonment, illegal searches, confiscation of

 3   property, surveillance, beatings, or torture.” (internal quotation

 4   marks omitted)), cited in Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d

 5   554, 567 (2d Cir. 2006).

 6        The IJ appears to have viewed skeptically the petitioners’

 7   claim that the individuals engaged in the surveillance were

 8   government agents, referring to them as “unknown individuals

 9   believed to be agents of the government.”   The IJ did not,

10   however, articulate this observation as an alternative basis for

11   denying the petitioners’ past persecution claim, and the IJ

12   provided no basis for a conclusion that surveillance was being

13   conducted by some non-governmental group.   As best we can tell,

14   the IJ rejected this claim exclusively on the ground that it did

15   not describe harm rising to the level of persecution.   Our review

16   is limited to the reasoning of the IJ, and as to this claim, that

17   reasoning was deficient.

18

19                                    3.

20        The IJ’s analysis of petitioners’ claim of past persecution

21   based on the threats that Rana Manzur received in response to her

22   efforts to have General Ershad prosecuted is also insufficient.

23        It is unclear whether the IJ rejected this claim because the

24   petitioners did not identify the source of the threats or because



                                      23
 1   the petitioners did not demonstrate that the threats were “on

 2   account of” a protected ground.   To the extent the decision rested

 3   on the former conclusion, it was legal error.   The IJ cited a case

 4   from the Seventh Circuit Court of Appeals, Mitev v. I.N.S., 67

 5   F.3d 1325 (7th Cir. 1995), for the proposition that “while threats

 6   could amount to persecution, an asylum applicant must identify who

 7   issued a particular threat, in what setting and for what purpose.”

 8   In Mitev, however, the court was discussing the importance of the

 9   “context” of threats and specifically discounted threats that came

10   from co-workers, often in the context of political discussions.

11   Mitev, 67 F.3d at 1331.    The court did not conclude that anonymous

12   threats could not be included in the mix of evidence showing that

13   an applicant had been subjected to persecution.   As this Court has

14   noted, “[c]oncluding that persecutors’ failure to reveal their

15   identities and motivations . . . undercuts an applicant’s

16   credibility does not rest on the ‘legitimate nexus’ required in

17   credibility findings.”    Secaida-Rosales, 331 F.3d at 311; see also

18   Poradisova, 420 F.3d at 80 (“The IJ also unreasonably dismissed as

19   ‘of no value’ the anonymous threatening calls [the petitioner]

20   Tatiana received in 1992 simply, and inexplicably, because they

21   were anonymous.”).

22        To the extent the IJ concluded that the death threats were

23   not “on account of” a protected ground, the IJ failed to explain

24   adequately the basis for this conclusion.   Specifically, the IJ



                                       24
 1   did not explain the basis for his conclusion that Rana Manzur’s

 2   attempts to have General Ershad prosecuted did not constitute the

 3   expression of a political opinion or cause a political opinion to

 4   be imputed to her.   Here, Rana Manzur actively pursued General

 5   Ershad’s prosecution after Prime Minister Zia, in her campaign,

 6   elevated the issue of bringing General Ershad to justice to the

 7   political stage.   Rana Manzur testified that she began receiving

 8   threatening phone calls and visits from the anti-corruption police

 9   after she began pursuing General Ershad’s prosecution, and that

10   she was accused of “trying to conflict with” the government by the

11   DGFI for not attending a military ceremony.      The IJ asserted that

12   the attempt to prosecute a public official, standing alone, is not

13   sufficient to establish the expression of a political opinion.5

14   The IJ also noted parenthetically that purely personal retribution

15   is not persecution on account of political opinion.

16        This Court has rejected an “impoverished view of what

17   political opinions are, especially in a country . . . where

18   certain democratic rights have only a tenuous hold.”      Yueqing

19   Zhang v. Gonzales, 426 F.3d 540, 546 (2d Cir. 2005) (quoting

20   Osorio, 18 F.3d at 1030).    In cases of opposition to government

21   corruption, this Court has stated that the central questions for


          5
            The IJ’s statement that the attempt to prosecute a public
     official “standing alone” did not establish the expression of a
     political opinion is a further illustration of the IJ’s general failure
     to evaluate adequately the petitioners’ claims in light of the entire
     evidentiary context in which they arose.

                                        25
 1   determining the nature of an applicant’s actions, which the IJ

 2   neither discussed nor recognized, are “whether the applicant’s

 3   actions were directed toward a governing institution, or only

 4   against individuals whose corruption was aberrational” and

 5   “whether the persecutor was attempting to suppress a challenge to

 6   the governing institution.”   Id. at 548 (internal quotation marks

 7   and citation omitted); see also Hasan v. Ashcroft, 380 F.3d 1114,

 8   1120 (9th Cir. 2004); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th

 9   Cir. 2004); Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir. 2000)

10   (finding that when alleged corruption which the petitioner exposed

11   is inextricably intertwined with government operation, the

12   exposure and prosecution of such abuse is necessarily political);

13   Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1245-46 (9th Cir. 1999);

14   Gomez-Saballos v. I.N.S., 79 F.3d 912, 917 (9th Cir. 1996)

15   (finding that personal retaliation against a vocal political

16   opponent does not render the opposition any less political, or the

17   opponent any less deserving of asylum).   In addition, this Court

18   has stated that the determination of whether a petitioner’s

19   persecutors were motivated by the petitioner’s opposition to the

20   government “is a complex and contextual factual inquiry.”    Yueqing

21   Zhang, 426 F.3d at 548.   Because the IJ did not engage in this

22   inquiry regarding the nature of Rana Manzur’s actions or the

23   motivation of her persecutors, the proper course is to remand for




                                      26
 1   further consideration of whether Rana Manzur made the requisite

 2   showing.

 3        The IJ cited the Supreme Court’s opinion in I.N.S. v. Elias-

 4   Zacarias, 502 U.S. 478 (1992), for the proposition that

 5   “[p]ersecution on account of political opinion means persecution

 6   on account of the victim’s not the persecutor’s political

 7   opinion.”   While that is a fair description of Elias-Zacarias, the

 8   citation misapprehends Rana Manzur’s claim.   Rana Manzur claims

 9   that she was persecuted precisely because of her political opinion

10   that her husband had been the victim of assassination engineered

11   by General Ershad and that, consequently, General Ershad should be

12   prosecuted.   She alleges that the threats were directed against

13   her precisely because of her views, not the persecutors’.   The

14   IJ’s analysis of this claim is, therefore, deficient.

15        The IJ also did not explain why, on these facts, the

16   petitioners have not shown that the threatening calls that Rana

17   Manzur received were motivated--at least in part--by an imputed

18   political opinion.   This Court has stated that, under a theory of

19   imputed political opinion, an applicant may establish persecution

20   “on account of” a protected ground by showing that the persecutors

21   perceived the applicant to have a political opinion and acted

22   because of it.   See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d

23   Cir. 2005).

24



                                      27
 1                                    4.

 2        Finally, the IJ’s analysis of the petitioners’ economic

 3   persecution claim is insufficient to determine whether the correct

 4   legal standard was applied.   See Beskovic, 467 F.3d at 224.    The

 5   IJ rejected petitioners’ claim of economic persecution because he

 6   concluded that they “failed to establish . . . that they were not

 7   able to support themselves,” citing as support several cases that

 8   do not articulate a clear standard for economic persecution.    This

 9   Court has previously recognized that the standard for economic

10   persecution claims is unclear, and remanded to the BIA for

11   clarification.   See Mirzoyan, 457 F.3d at 223-24.

12        The BIA’s recent decision, In re T-Z-, 24 I. & N. Dec. 163

13   (BIA May 9, 2007), responds to this Court’s request in Mirzoyan

14   and articulates the BIA’s standard for evaluating nonphysical

15   harm, including economic harm.   Based on this intervening

16   decision, and because we are unable to determine the standard that

17   the IJ applied to petitioners’ claim of economic persecution, the

18   proper course is to remand to the BIA for further consideration in

19   light of In re T-Z-.

20

21                                    IV.

22        For all of these reasons, the Court concludes that the IJ

23   erred in considering the petitioners’ claim of past persecution.

24   Assuming that the petitioners can establish their claim of past



                                      28
1   persecution, the Government on remand will have to overcome a

2   rebuttable presumption that the petitioners have a well-founded

3   fear of future persecution.6    Therefore, because we cannot

4   confidently predict whether, under these circumstances and absent

5   the IJ’s errors, the BIA would adhere to its prior decision



         6
           The IJ did not discuss the issue of whether the petitioners have
    a well-founded fear of future persecution other than to conclude that
    the petitioners had “not established” that “any harm . . . feared was on
    account of any characteristic enumerated in the Act.” The IJ never
    analyzed or even mentioned whether the Government offered sufficient
    evidence to overcome any presumption that the petitioners had a well-
    founded fear of future persecution as a result of their past
    persecution.
         The IJ did, however, cite to a July 27, 1998 letter from the State
    Department Office of Asylum Affairs, submitted in response to the IJ’s
    request for an advisory opinion on Rana Manzur’s asylum application.
    Letter from William M. Bartlett, Director, Office of Asylum Affairs,
    Bureau of Democracy, Human Rights and Labor, United States Department of
    State, to Executive Office of Immigration Review, Office of the
    Immigration Judge (July 27, 1998) [hereinafter Letter]. The letter
    summarizes some of the petitioner’s claims and then concludes that “[i]t
    seems unlikely that the applicant would face any mistreatment in
    Bangladesh if she were to return to that country.” Id. at 2.
         It is not clear to what extent the IJ relied on this letter in
    concluding that the petitioners failed to establish their claim of past
    persecution, and in any event, the letter cannot cure the IJ’s failure
    to analyze adequately the petitioners’ claim of past persecution.
    Moreover, it is unclear what weight the IJ gave to the letter in
    assessing whether the Manzurs have a well-founded fear of future
    persecution; we reject the Government’s contention that its position in
    the letter is in any way dispositive of the issue of future persecution,
    particularly given the IJ’s failure to assess the applicable burden of
    proof. The letter is no substitute for the IJ considering the full
    record of testimony and evidence in this case, cf. Tian-Yong Chen v.
    U.S. I.N.S., 359 F.3d 121, 130 (2d Cir. 2004) (cautioning against
    excessive reliance on State Department country reports), particularly
    when the letter relies solely on analysis of country conditions and the
    written asylum application and disclaims any independent investigation
    into the pattern of events that petitioners allege constitute past
    persecution. See Letter at 2. The letter in this case also contains
    certain factual misstatements. See id. at 1 (claiming that petitioner
    “does not claim to have been . . . detained” despite the Manzurs’ claim
    of month-long confinement); id. (claiming that President Zia was the
    father, rather than the husband, of Prime Minister Khaleda Zia).

                                       29
 1   denying the petitioners’ applications for asylum, we remand.    See

 2   Uwais, 478 F.3d at 519 n.1; Beskovic, 467 F.3d at 227;

 3        Because the errors in the IJ’s analysis of the petitioners’

 4   claim for asylum bear on the petitioners’ eligibility for

 5   withholding of deportation (or removal) under the INA and relief

 6   under the CAT, we remand these latter claims as well.    See, e.g.,

 7   Abankwah v. I.N.S., 185 F.3d 18, 26 (2d Cir. 1999).

 8

 9                                CONCLUSION

10        For all of the reasons discussed above, the petition for

11   review is GRANTED.   The decision of the BIA is VACATED, and the

12   case is REMANDED for further proceedings consistent with this

13   opinion.




                                      30
