     10-2584-ag
     Gashi v. Holder




 1                                     UNITED STATES COURT OF APPEALS
 2                                         FOR THE SECOND CIRCUIT

 3                                                       August Term, 2011

 4                 (Argued: October 18, 2011                                Decided: December 18, 2012)


 5                                                    Docket No. 10-2584-ag

 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

 7   AZEM GASHI, aka Antonio Boca,
 8
 9                       Petitioner,

10   v.

11   ERIC H. HOLDER, JR., United States Attorney General,

12                       Respondent.

13   -------------------------------X


14   Before: KEARSE, LEVAL, and CHIN, Circuit Judges.

15           Petitioner Azem Gashi petitions for review of an order of the Board of Immigration
16   Appeals affirming the decision of an Immigration Judge, which denied Petitioner’s application
17   for asylum, withholding of removal, and relief under the Convention Against Torture. Petitioner
18   argues that the Board and the Immigration Judge incorrectly found him ineligible because the
19   group in which he claimed membership, by reason of which he suffered persecution, cannot
20   qualify as an eligible “particular social group” under the Immigration and Nationality Act, 8
21   U.S.C. § 1101(a)(42)(A). The Court of Appeals (Leval, J.) agrees with Petitioner that the
22   agency employed an incorrect standard of law and concludes that remand is necessary.
23   Accordingly, the order of the Board is VACATED, and the case is REMANDED for further
24   proceedings.




                                                                        1
1                                                             H. Raymond Fasano, Madeo & Fasano,
2                                                                    New York, NY, for Petitioner.

3                                                     Paul Fiorino, Senior Litigation Counsel, Office
4                                                    of Immigration Litigation (Douglas E. Ginsburg,
5                                                    Assistant Director, on the brief), for Tony West,
6                                                   Assistant Attorney General, Civil Division, United
7                                                        States Department of Justice, for Respondent.


8    LEVAL, Circuit Judge:

 9          Azem Gashi, a citizen of Serbia,1 petitions for review of an order of the Board of

10   Immigration Appeals (“BIA”) affirming the oral decision of Immigration Judge (“IJ”) Alan A.

11   Vomacka, which denied Gashi’s application for asylum, withholding of removal, and relief

12   under the Convention Against Torture (“CAT”). See In re Azem Gashi, No. A 099-686-927

13   (B.I.A. June 3, 2010) (“BIA Decision”), aff’g In re Azem Gashi, No. A 099-686-927 (Immig. Ct.

14   N.Y. City May 16, 2008) (“IJ Decision”). Gashi testified that, in 1998, he and others were

15   attacked by soldiers under the command of Ramush Haradinaj, a leader of the Kosovo Liberation

16   Army (“KLA”). In 2004 and 2005, Gashi met with international officials investigating

17   allegations that Haradinaj and the KLA had committed war crimes during the Kosovo conflict

18   and related to them the details of the attack. Soon thereafter, Gashi was assaulted and

19   threatened, prompting him to flee to the United States. Gashi contends he was targeted by

20   supporters of Haradinaj by reason of his cooperating with the war crimes investigators.




            1
              Gashi was born in Kosovo, which was a province of Serbia at the time Gashi arrived in
     the United States in 2006. Kosovo declared its independence in 2008, but some countries have
     refused to recognize it as an independent state and “[t]he final outcome of that situation is
     perhaps not completely clear.” IJ Decision at 2.

                                                     2
 1          The IJ rejected Gashi’s claim of past persecution, explaining that Gashi failed to

 2   demonstrate that the abuse he suffered had a sufficient nexus to a protected ground. Of

 3   relevance to this petition, the IJ found that the abuse could not be considered to be on account of

 4   Gashi’s membership in a “particular social group” within the meaning of the governing

 5   statute—the Immigration and Nationality Act (“INA”)—because of the lack of a socially visible

 6   trait identifying membership in the group. The BIA adopted the IJ’s reasoning, concluding that

 7   Gashi failed to identify a particular social group that fulfilled the elements required for eligibility

 8   under the INA.

 9          We do not agree with the IJ’s conclusion that members of a group consisting of persons

10   who witnessed Haradinaj’s alleged crimes and cooperated with international investigators were

11   not visible to both persecutors and the wider community. Gashi’s name was published on a list

12   of potential witnesses against Haradinaj, his fellow villagers were aware that he had spoken with

13   investigators, and other potential witnesses were harassed. These facts satisfied the social

14   visibility requirement for a particular social group. Therefore, we cannot accept the BIA’s

15   conclusion that a group consisting of potential witnesses against Haradinaj does not constitute a

16   particular social group.

17          To the contrary, we conclude that the proposed group of cooperating witnesses is a

18   particular social group under the INA. The proposed group meets the three requirements of

19   having an immutable, common characteristic, having some degree of social visibility, and being

20   defined with sufficient particularity. On remand, the agency must consider whether Gashi is a

21   member of the group, whether the 2005 attacks and threats directed against Gashi amounted to

22   persecution, and, if so, whether that persecution was on account of his membership in the group.


                                                       3
 1          If the agency does find that Gashi suffered past persecution on account of his particular

 2   social group membership, then it must afford Gashi a presumption of well-founded fear of future

 3   persecution. In the proceedings below, the IJ and the BIA found no past persecution and

 4   therefore placed the burden of proving well-founded fear of persecution on Gashi. A finding on

 5   remand that Gashi was a victim of past persecution would automatically shift the burden to the

 6   Government to prove that Gashi has no well-founded fear of future persecution. We vacate and

 7   remand so that the agency may consider these questions in the first instance.

 8                                          BACKGROUND

 9          Gashi fled Kosovo in February 2006 and tried to enter the United States under the Visa

10   Waiver Program using a fraudulent passport. He was refused admission to the United States and

11   was referred to an IJ for “asylum-only” proceedings. Gashi filed his application for asylum,

12   withholding of removal, and CAT relief in July 2006.

13          Among other claims, Gashi asserted that he suffered past persecution on account of his

14   membership in a particular social group.2 In the affidavit included with his application, Gashi


            2
               Gashi made a number of claims in his application which the IJ and the BIA rejected,
     and which he does not challenge on appeal before this Court. Gashi alleged that he was the
     victim of past persecution directed against ethnic Albanians by Serbs before 1998. See IJ
     Decision at 3-5. The IJ found that the mistreatment described by Gashi did not constitute
     persecution, and that, in any event, Gashi had no well-founded fear of future persecution by
     Serbs because of changed country conditions following the end of the Kosovo conflict in 1999.
     See id. at 3-8. Gashi did not appeal this conclusion to the BIA.
             The IJ also found that the 1998 attack on Gashi and his friends did not constitute
     persecution, and that the attack was not on account of Gashi’s political opinion. See id. at 14,
     22, 25. The IJ determined that the KLA and the FARK shared the same ultimate political goal of
     liberating Kosovo from Serbian rule, and he therefore concluded that differences in political
     opinion did not motivate the KLA attack on Gashi. See id. at 22, 24. The BIA agreed with these
     conclusions. See BIA Decision at 2. On appeal, Gashi does not challenge the IJ’s findings that
     the 1998 attacks were not persecution, and that the attacks were not on account of Gashi’s
     political opinion.

                                                     4
 1   explained that he and his family were ethnic Albanians living in Kosovo when conflict erupted

 2   with Serbia in 1998. Motivated by a desire to end the Serbian oppression of ethnic Albanians,

 3   Gashi joined the Armed Forces of the Republic of Kosovo (“FARK”) resistance group. Gashi

 4   served under the command of Colonel Tahir Zemaj.

 5          During the conflict, the FARK had a number of disagreements with the rival KLA, which

 6   also sought to expel the Serbs from Kosovo. Gashi testified that he and three friends, all of them

 7   members of the FARK, were caught in the crossfire of the FARK-KLA dispute when they were

 8   stopped and attacked by a KLA unit on July 4, 1998. The KLA forces, which were commanded

 9   by Ramush Haradinaj and another individual referred to as “Togeri,” or “Lieutenant,”

10   shepherded Gashi and his friends to the front yard of a house used by the KLA. Gashi v. Holder,

11   No. 10-2584, Administrative Record (“A.R.”) at 124, 610 (Sept. 14, 2010). Haradinaj took out a

12   pistol and shot Gashi in his right ankle, and then he and his brother beat Gashi and his friends

13   with metal rods and the butts of submachine guns. Gashi’s friend, Idriz, was beaten with a

14   baseball bat.

15          Afterward, Gashi and his friends were ordered to strip to their underwear and run to a

16   village called Kodrali while Togeri followed in a car and fired a submachine gun above their

17   heads. Haradinaj wanted the wounded Gashi and his injured friends to serve as a warning to the

18   rival FARK commander, Zemaj. As Gashi and his friends passed through a village called Irzniq

19   where other KLA units were stationed, Togeri shouted out that Gashi and his friends were



            Finally, Gashi initially sought relief under the CAT. The BIA ruled that Gashi had “not
     presented any persuasive arguments on appeal as to why we should reverse the Immigration
     Judge’s finding that he failed to meet his burden of proving that it is more likely than not that he
     would be tortured upon returning to Serbia.” Id. Gashi does not challenge the BIA’s denial of
     his CAT claim.

                                                      5
 1   Zemaj’s soldiers and that they should be beaten. The KLA forces attacked Gashi and his friends.

 2   At some point, Gashi and his friend Petrit had to support Idriz, who had suffered a head wound.

 3   Togeri drove away after Gashi and his friends reached the village Kodrali, where they reunited

 4   with a FARK unit and were given medical treatment.

 5           In August 2004, representatives of the United Nations Mission in Kosovo (“UNMIK”)

 6   visited Gashi’s region and inquired about the July 4, 1998 incident. Other villagers directed the

 7   representatives to Gashi, who described the attack on himself and his friends. Gashi spoke with

 8   the same UNMIK representatives two more times, on November 30, 2004, and on August 25,

 9   2005.

10           Around August 2005, Gashi noticed an increase in the number of threats he received over

11   the telephone. People in his village who favored the KLA called Gashi a “traitor” and a

12   “troublemaker,” and they warned him that he was “messing with serious things.” A.R. 611. In

13   September 2005, Gashi was attacked near his house by two masked men, one of whom

14   brandished a knife. Screaming for help, Gashi managed to fight off the assailants and escape to

15   his house. In November 2005, while Gashi was driving, a car approached very quickly, as if to

16   hit him. He received a telephone call that night telling him that his “end will be near.” A.R.

17   612. A month later, in December 2005, Gashi was attacked by three masked men as he

18   accompanied a friend home. One of the men hit him on the head with a metal knob while

19   another said to “[k]ill this dog here.” A.R. 612. The masked men ran off when a car passed by

20   and stopped to help Gashi. After receiving another threatening telephone call, Gashi fled to the

21   United States. Gashi did not inform the international investigators of his relocation and did not




                                                     6
 1   testify at Haradinaj’s trial before the International Criminal Tribunal for the former Yugoslavia

 2   (“ICTY”), at which Haradinaj was acquitted.

 3          After an individual merits hearing on December 14, 2007, the IJ rendered an oral

 4   decision on May 16, 2008 denying Gashi’s application. The IJ ruled that Gashi had not proven

 5   past persecution on account of a protected ground. In relevant part, the IJ concluded that Gashi

 6   was not a member of a particular social group because he did not have a trait that was visible to

 7   society as a whole. The IJ explained that Gashi was “not from a different ethnic group” and had

 8   no observable traits. IJ Decision at 21. The IJ also noted that “many people in Kosovo would be

 9   unaware of [his] particular history.” Id. at 22. Because the IJ also rejected Gashi’s assertion that

10   he was persecuted on account of his political opinion, the IJ found that Gashi had failed to show

11   that any of the attacks and threats against him had a nexus to a protected ground. See id.

12          While the absence of a connection between the attacks and a protected ground would

13   have been sufficient to deny Gashi’s past persecution claim, the IJ made the additional ruling

14   that the 1998 attack on Gashi and his friends did not rise to the level of persecution. Noting that

15   the KLA forces could have killed Gashi if they had so desired, id. at 17, the IJ stated his belief

16   that Gashi was merely “the means to deliver a humiliating message to his commander,” id. at 25.

17   Furthermore, the IJ stated that the 2005 assaults and threats did not constitute persecution either,

18   but he offered no explanation for this conclusion. See id. at 10 (“[T]he recent [2005] threats and

19   assaults against [Gashi] involving The Hague Tribunal . . . do not constitute persecution . . . .”).

20          The IJ also held that Gashi had not shown a well-founded fear of future persecution at the

21   hands of Haradinaj’s supporters. While the IJ acknowledged that Gashi had given preliminary

22   statements to UNMIK officials and had been pressured not to testify, the IJ emphasized that


                                                       7
 1   Gashi never testified against Haradinaj. The IJ faulted Gashi for traveling to the United States

 2   and making no effort to inform ICTY prosecutors of his relocation. See id. at 15. In view of

 3   Gashi’s decision not to testify and Haradinaj’s eventual acquittal, the IJ concluded that Haradinaj

 4   and his supporters had no motive to punish Gashi. See id. at 18. The IJ therefore ruled that

 5   Gashi had not carried his burden of proving well-founded fear of persecution. See id. at 19

 6   (“[T]he Court believes the respondent fails to show that at the present time the Haradinaj

 7   supporters have a reason to further harm the respondent.”).

 8             The BIA affirmed the decision of the IJ. The BIA did not specifically address the IJ’s

 9   finding that Gashi had no socially visible characteristic. Instead, the BIA stated that it “agree[d]

10   with the Immigration Judge that, as a potential witness against Mr. Haradinaj, the applicant is not

11   a member of a particular social group.” BIA Decision at 2. Accordingly, the BIA agreed with

12   the IJ that Gashi had not shown a nexus between the abuse against him and a protected ground.

13   See id. The BIA did not consider whether the assaults and threats directed at Gashi in 2005

14   constituted persecution under the INA.

15             The BIA also agreed with the IJ that Gashi had failed to meet “his burden” to show a

16   well-founded fear of future persecution. Id. The BIA explained that Haradinaj and his

17   supporters had no reason to harm Gashi given Gashi’s failure to testify and Haradinaj’s acquittal.

18   See id.

19                                              DISCUSSION

20             “Where, as here, the BIA has adopted and supplemented the IJ's decision, we review the

21   decision of the IJ as supplemented by the BIA. Legal issues, and the application of law to fact,

22   are reviewed de novo.” Castro v. Holder, 597 F.3d 93, 99 (2d Cir. 2010) (citation omitted).


                                                       8
 1   Because the IJ found Gashi to be credible, we treat the version of past events that Gashi related

 2   to the IJ as undisputed fact. See Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007).3

 3   I. Asylum

 4          Asylum is a discretionary form of relief available to certain aliens who qualify as

 5   “refugees” under the INA. See 8 U.S.C. § 1158(b)(1)(A). The INA defines a “refugee” as an

 6   alien who is unable or unwilling to return to his native country “because of persecution or a well-

 7   founded fear of persecution on account of race, religion, nationality, membership in a particular

 8   social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Gashi claims his eligibility

 9   results from a fear of persecution on account of his membership in a particular social group

10   consisting of persons who witnessed war crimes by the KLA and Haradinaj and cooperated with

11   authorities investigating those crimes.

12          For applications filed after May 11, 2005, such as that of Gashi, “the REAL ID Act of

13   2005 places the burden on the asylum applicant to establish a sufficiently strong nexus to one of

14   the protected grounds by demonstrating that ‘race, religion, nationality, membership in a

15   particular social group, or political opinion was or will be at least one central reason for




            3
               The IJ stated in his oral decision that he believed “the credibility of the respondent is
     not particularly significant to the outcome of the case.” IJ Decision at 10. The IJ indicated that
     many of the events recounted by Gashi could be corroborated by evidence that he spoke with
     UNMIK officials, the ICTY’s indictment of Haradinaj, and marks on Gashi’s body consistent
     with his claims. See id. at 10-11. But the IJ also noted a few discrepancies between Gashi’s
     testimony and other accounts of the events. See id. at 11-12, 17. The BIA interpreted the IJ’s
     decision “to mean that even assuming the applicant to be credible, which [the IJ] did, the
     applicant nevertheless failed to meet his burden of proof.” BIA Decision at 1. We therefore also
     assume Gashi to be credible and treat his testimony as establishing the facts, for purposes of this
     petition.

                                                       9
 1   persecuting the applicant.’” Castro, 597 F.3d at 100 (quoting REAL ID Act of 2005 § 101(a)(3),

 2   8 U.S.C. § 1158(b)(1)(B)(i)).

 3          An alien who proves past persecution on account of a protected ground is entitled to a

 4   presumption of well-founded fear of future persecution on the basis of the original claim. See 8

 5   C.F.R. § 1208.13(b)(1); Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir. 2007). The Government

 6   can rebut the presumption in different ways, such as by showing either that conditions in the

 7   alien’s native country have changed such that the alien no longer has a well-founded fear of

 8   persecution, or that the alien can avoid future persecution by relocating to a different region of

 9   his native country. See 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B); Jalloh, 498 F.3d at 151. The

10   regulations make clear that, “[i]n cases in which an applicant has demonstrated past persecution .

11   . . the [Government] shall bear the burden of establishing by a preponderance of the evidence”

12   the changed country conditions or the feasibility of relocation. 8 C.F.R. § 1208.13(b)(1)(ii).

13          An alien does not need to prove any past persecution to establish his eligibility for

14   asylum. Proof of a well-founded fear of future persecution on account of a protected ground is

15   sufficient to establish asylum eligibility. See id. § 1208.13(b); see also Huang v. INS, 436 F.3d

16   89, 95 (2d Cir. 2006) (if an alien “establishes a well-founded fear of future persecution, he is

17   automatically eligible for asylum”). Absent a showing of past persecution, however, the alien

18   bears the burden of proving that he has a well-founded fear of persecution. See 8 C.F.R. §

19   1208.13(a) and (b)(2)(iii). In addition, an alien who has not shown past persecution also has the

20   burden of proving that it would not be reasonable for him to relocate to a different region of his

21   native country where he could avoid persecution. See id. § 1208.13(b)(3)(I).




                                                      10
 1   II. Gashi’s challenge

 2          Gashi contends the BIA erred in concluding that the category of persons in which he

 3   claims membership, providing the basis for his past persecution, did not constitute a “particular

 4   social group” within the meaning of the statute. We agree. Accordingly we vacate the BIA’s

 5   order and remand for further consideration.

 6          A. Exhaustion

 7          As an initial matter, the Government argues that Gashi forfeited any claim regarding the

 8   elements of a particular social group because he did not raise the issue in his appeal to the BIA.

 9   Although it is true that Gashi did not explicitly raise this point in his brief to the BIA, the BIA

10   chose nonetheless to address the issue in its decision and relied on an incorrect legal standard in

11   making its decision. In such circumstances, we have ruled that the BIA “excused” the

12   petitioner’s failure to raise the issue, and we proceeded to consider it. Ye v. Dep’t of Homeland

13   Sec., 446 F.3d 289, 296-97 (2d Cir. 2006); see also Waldron v. INS, 17 F.3d 511, 515 n.7 (2d

14   Cir. 1993). We do so here as well.

15          B. Requirements of a particular social group

16          Decisions of the BIA and of this court have addressed the characteristics needed to

17   qualify as a particular social group under the INA. The BIA has ruled that the members must

18   share a common characteristic that is either “beyond the power of the individual to change” or

19   “so fundamental to individual identity or conscience that it ought not be required to be changed.”

20   Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part on other grounds,

21   Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987). This common characteristic,

22   furthermore, must have enough “social visibility” that it identifies members of the group to


                                                      11
 1   others in the community, particularly to potential persecutors. See Ucelo-Gomez v. Mukasey,

 2   509 F.3d 70, 73 (2d Cir. 2007); In re C-A-, 23 I. & N. Dec. 951, 959-60 (B.I.A. 2006); Gomez v.

 3   INS, 947 F.2d 660, 664 (2d Cir. 1991) (“A particular social group is comprised of individuals

 4   who possess some fundamental characteristic in common which serves to distinguish them in the

 5   eyes of a persecutor—or in the eyes of the outside world in general.”). In addition, the proposed

 6   group must have “particular and well-defined boundaries.” Ucelo-Gomez, 509 F.3d at 73.

 7           The BIA held that a group consisting of potential witnesses against Haradinaj does not

 8   satisfy those requirements. BIA Decision at 2. The BIA implicitly expressed agreement with

 9   the IJ, who ruled that Gashi could not qualify because he did not have any socially visible

10   characteristic because he “is not from a different ethnic group,” and because “many people in

11   Kosovo would be unaware of [his] particular history.” IJ Decision at 21-22.

12           Gashi, however, pointed to characteristics that are both immutable and visible in the

13   Kosovar society. As for visibility, Gashi’s name appeared on a public list of potential witnesses

14   against Haradinaj compiled by the prosecutor at the ICTY. A.R. 165 (Gashi: “My name is there

15   in that list.”; IJ: “Listed as a witness to appear in, at that trial?”; Gashi: “Yes, as a witness.”); cf.

16   In re C-A-, 23 I. & N. Dec. at 960 (confidential informants against a drug cartel had no social

17   visibility because, “[i]n the normal course of events, an informant against the . . . cartel intends

18   to remain unknown and undiscovered”). People in his village knew that Gashi spoke with

19   UNMIK representatives because they directed the representatives, who sought information about

20   the July 4, 1998 incident, to Gashi. Villagers who sympathized with Haradinaj labeled Gashi a

21   “traitor” and accused him of “messing with serious things” after Gashi’s meeting with

22   international investigators in August 2005. A.R. 611. He was attacked twice by masked men,


                                                        12
 1   and he received telephone threats warning him that his “end [would] be near.” A.R. 611-12.

 2   These incidents demonstrate that his identity as one who had cooperated with investigators of

 3   Haradinaj was well known in the society and that supporters of Haradinaj sought to terrorize him

 4   because of it. Other persons who had cooperated with the investigation of war crimes were

 5   similarly targeted, with the consequence that the ICTY prosecutor told a German newspaper in

 6   October 2007 that he was “losing witnesses on all sides in the case against Haradinaj” because

 7   the potential witnesses were “being seriously threatened.” A.R. 632.

 8          These facts sufficiently demonstrate that the group of cooperating witnesses on which

 9   basis Gashi claimed eligibility was socially visible to potential persecutors and the wider

10   Kosovar society. See Ucelo-Gomez, 509 F.3d at 73.

11          Gashi’s evidence with respect to the nature of the group also satisfied the requirement of

12   immutability, or permanence, of membership. These characteristics include having witnessed

13   war crimes of the KLA and Haradinaj, and having cooperated with investigators on the subject

14   of such war crimes. These characteristics of the group derive from past experience. They

15   “cannot be undone” and are therefore, “by [their] very nature, immutable.” In re C-A-, 23 I. &

16   N. Dec. at 958; accord Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d Cir. 2007). These

17   characteristics also serve to define the social group with sufficient particularity. The number of

18   persons who have given interviews to, or otherwise cooperated with, official war crimes

19   investigators is finite, and undoubtedly quite limited. An individual’s membership is also

20   verifiable. Cf. In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (B.I.A. 2007), aff’d sub nom.

21   Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007), (rejecting a proposed group defined as

22   “affluent Guatemalans” because “the concept of wealth is so indeterminate, the proposed group


                                                     13
 1   could vary from as little as 1 percent to as much as 20 percent of the population, or more”). We

 2   conclude that Gashi’s claim of eligibility is based on a proposed group that satisfies the legal

 3   elements of a particular social group under the INA.

 4          Notwithstanding the agency errors noted above, we would not vacate its ruling if the

 5   record showed that the agency would have reached the same result without the faulty analysis.

 6   See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395 (2d Cir. 2005). We cannot justify

 7   that conclusion.

 8          We recognize that the IJ and the BIA found Gashi did not suffer past persecution because

 9   he did not “establish[] a nexus to a protected ground under the [INA].” BIA Decision at 2; see

10   also IJ Decision at 22. This, however, was not an alternative ground for denying Gashi’s claim.

11   Membership in a group does not constitute a protected ground unless the group qualifies as a

12   “particular social group” under the INA. The reason the IJ and the BIA found no nexus to a

13   protected ground was because they incorrectly believed that the proposed group of cooperating

14   witnesses was not a particular social group. Therefore, this conclusion of the IJ and the BIA was

15   simply another way of expressing the erroneous conclusion we have criticized.

16          The IJ also stated that “the recent [2005] threats and assaults against [Gashi] involving

17   The Hague Tribunal . . . do not constitute persecution.” IJ Decision at 10. Because an alien

18   seeking to prove past persecution must show persecution on account of a protected ground, this

19   finding did constitute an alternative ground for denying Gashi’s petition without regard for

20   whether he established membership in a particular social group. If sustainable, the finding

21   would therefore moot the agency’s errors as to the standards for the eligibility of a group. But

22   we do not think this finding is sustainable on the present record. In the first place, the IJ offered


                                                      14
 1   no explanation why the series of attacks and threats in 2005 were not sufficient to constitute

 2   persecution. The IJ’s discussion of the 2005 assaults and threats focused instead on the different

3    question of whether they justified a well-founded fear of future persecution. The IJ concluded

 4   that, “because [Gashi] did in fact exactly what Mr. Haradinaj supposedly wanted him to do” by

 5   fleeing from Kosovo and “accept[ing] the threats,” Gashi was unable to show that “at the present

 6   time the Haradinaj supporters have a reason to further harm [him].” Id. at 18-19. Even if this

 7   reasoning were sustainable, which we doubt, it has no bearing on whether the 2005 abuse was

 8   itself persecution. Given the unrebutted evidence that Gashi was repeatedly warned, threatened

 9   with death, and attacked with deadly weapons including a knife and a metal knob while one

10   attacker urged another to “[k]ill this dog here,” A.R. 611-12, we do not see why such abuse does

11   not constitute persecution. The IJ did not indicate what standard of persecution he employed to

12   determine that this level of abuse failed to qualify. Without further explanation justifying the

13   conclusion that the 2005 abuse did not constitute persecution, we cannot accept that this finding

14   moots the error concerning the social group standard. See, e.g., Manzur v. U.S. Dep’t of

15   Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007) (“This Court . . . will not hesitate to vacate and

16   remand where the BIA or IJ analysis is insufficient to determine whether the correct legal

17   standard was applied.”); Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“[W]e require

18   a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed

19   must require such if judicial review is to be meaningful.”).4


            4
              The IJ also concluded that the 1998 attack in which Gashi, together with other FARK
     members, was attacked by Haradinaj and his KLA troops, was shot in the foot, and was beaten
     with metal rods and the butts of machine guns was not sufficiently serious to constitute
     persecution. This finding further raises a question as to whether the IJ was employing a valid
     standard as to what is needed to qualify as persecution, but the finding is irrelevant for purposes

                                                     15
1           Finally, we come to the findings of the IJ and the BIA that Gashi has no well-founded

2    fear of future persecution, which the Government contends both moots this petition and makes

3    remand futile. The IJ and the BIA concluded that Gashi had not proven well-founded fear

4    because he never testified against Haradinaj and, in any event, Haradinaj was acquitted. We do

5    not agree.

6           The finding that Gashi has no well-founded fear of future persecution is vulnerable for

7    several reasons. First, to the extent it was predicated on Haradinaj’s acquittal, leading the

8    agency to conclude that Haradinaj had nothing further to fear from Gashi, Haradinaj’s acquittal

 9   has since been quashed by the ICTY tribunal, and its prosecutors are preparing to retry him. See

10   Prosecutor v. Haradinaj, Case No. IT-04-84-A, Appeals Chamber Judgement, ¶ 50 (July 19,

11   2010), available at http://www.icty.org/x/cases/haradinaj/acjug/en/100721.pdf. Haradinaj and

12   his followers once again have all the same reasons to fear Gashi’s testimony and to see to it that

13   he does not testify, as well as to intimidate other potential witnesses by persecuting any person

14   who has, or might, cooperate with the prosecution.

15          Furthermore, the finding that Gashi has no well-founded fear of future persecution was

16   made under what is probably an incorrect allocation of burden of proof. The IJ placed the

17   burden of proving a well-founded fear of future persecution on Gashi, and found he had not

18   sustained it. If the agency determines on remand that Gashi was persecuted on account of his

19   membership in the group consisting of potential witnesses to Haradinaj’s crimes who have



     of this petition because it does not relate to Gashi’s claim based on his membership in a
     particular social group. This event occurred before Gashi’s cooperation with the war crimes
     investigators. It related to his claim of political persecution. After rejection by the agency, the
     claim of political persecution was abandoned by Gashi. The agency’s rejection of the 1998
     shooting and beatings as the basis of a claim has no bearing on the present petition.

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1   cooperated with investigative authorities (and we see no reason why it would not reach that

2   conclusion), Gashi will be entitled to a presumption of well-founded fear of future persecution.

3   See Poradisova, 420 F.3d at 78. The burden of proof on the issue will shift to the Government.

4   Accordingly, the previous finding that Gashi failed to show a well-founded fear of future

5   persecution neither moots the errors with respect to the particular social group, nor makes a

6   remand futile.



7                                            CONCLUSION

8   For the above reasons, we grant the petition for review, vacate the BIA’s order denying Gashi’s

9   claims for asylum and withholding of removal, and remand.5




           5
              The IJ and the BIA denied the withholding of removal claim as an a fortiori conclusion
    after ruling that Gashi had not proved his asylum eligibility. See IJ Decision at 25 (“[T]he Court
    does not believe that the respondent has established a basis for asylum and . . . it would be much
    more difficult to find a basis for withholding . . . in this case.”); BIA Decision at 2 (“Because we
    agree that the applicant has not met the burden of establishing past persecution or a well-founded
    fear of persecution on account of one of the protected grounds, he does not satisfy the higher
    burden of proof for withholding of removal . . . .”). Because the IJ and the BIA’s erroneous
    analysis of Gashi’s asylum claim bears on his eligibility for withholding of removal, we also
    remand the withholding of removal claim. See Abankwah v. INS, 185 F.3d 18, 26 (2d Cir. 1999);
    see also Manzur, 494 F.3d at 296.

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