     16-1161
     Mann v. Sessions
                                                                                       BIA
                                                                                LaForest, IJ
                                                                               A200 289 964

                             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 for the
 2   Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the 6th day
 4   of September, two thousand seventeen.
 5
 6   PRESENT:
 7             GUIDO CALABRESI,
 8             ROSEMARY S. POOLER,
 9             CHRISTOPHER F. DRONEY,
10                       Circuit Judges.
11   _____________________________________
12
13   JAGWINDER SINGH MANN, AKA JAGWINDER
14   SINGH,
15             Petitioner,
16
17                      v.                                           16-1161
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21             Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Jaspreet Singh, Jackson Heights, NY.
25
26   FOR RESPONDENT:                  Benjamin C. Mizer, Principal Deputy
27                                      Assistant Attorney General; Mary Jane
28                                      Candaux, Assistant Director; Matthew
29                                      A. Connelly, Trial Attorney, Office of
30                                      Immigration Litigation, United States
31                                      Department of Justice, Washington, DC.
1            UPON DUE CONSIDERATION of this petition for review of a Board

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

3    ADJUDGED, AND DECREED that the petition for review is GRANTED, the

4    decision of the BIA is VACATED, and the case is REMANDED FOR FURTHER

5    CONSIDERATION.

6            Petitioner Jagwinder Singh Mann, a native and citizen of India,

7    seeks review of a March 15, 2016, decision of the BIA affirming a

8    January 6, 2015, decision of an Immigration Judge (“IJ”) denying

9    Mann’s application for asylum, withholding of removal, and relief

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

11   Mann, No. A200 289 964 (B.I.A. Mar. 15, 2016), aff’g No. A200 289

12   964 (Immig. Ct. N.Y. City Jan. 6, 2015).       We assume the parties’

13   familiarity with the underlying facts and procedural history in this

14   case.

15           We have reviewed both the IJ’s and the BIA’s opinions “for the

16   sake of completeness” because the BIA did not explicitly adopt nor

17   diverge from the IJ’s reasoning in full. Wangchuck v. Dep’t of

18   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We further review

19   the BIA's factual findings for substantial evidence, Ahmed v. Lynch,

20   804 F.3d 237, 240 (2d Cir. 2015), its interpretation of immigration

21   statutes with Chevron deference, see INS v. Aguirre–Aguirre, 526 U.S.

22   415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron

23   U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104

24   S.Ct. 2778, 81 L.Ed.2d 694 (1984)), and its interpretations of

                                         2
1    immigration regulations with “substantial deference,” Joaquin–

2    Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006) (internal

3    quotation marks and citations omitted). However, “when the situation

4    presented is the BIA's application of legal principles to undisputed

5    facts, rather than its underlying determination of those facts or

6    its interpretation of its governing statutes, our review is de novo.”

7    Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal

8    quotation marks and citation omitted; alteration incorporated). See

9    8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder, 575 F.3d

10   193, 196 (2d Cir. 2009).

11        I.   Discussion

12        An applicant for asylum may demonstrate eligibility either

13   through showing that he has suffered past persecution on account of

14   “race, religion, nationality, membership in a particular social

15   group, or political opinion,” or a “well-founded fear of future

16   persecution” on these protected grounds. 8 U.S.C. § 1101(a)(42);

17   Poradisova v. Gonzalez, 420 F.3d 70, 77-78 (2d Cir. 2005). We are

18   inclined to agree with the IJ’s conclusion that Mann failed to

19   demonstrate a well-founded fear of future persecution. But, because

20   past persecution was not adequately ruled out by the IJ or BIA below,

21   we remand for reconsideration of Mann’s suit.

22        Were the only grounds available to Mann those of future

23   persecution, we would be inclined to affirm. But however unsuccessful

24   Mann’s case may be with respect to future persecution, without a full

                                      3
1    consideration of the first prong of “persecution”, that is, of “past

2    persecution”, the IJ’s analysis is incomplete, and thus the result

3    in this suit invalid.

4          In evaluating a past persecution claim, the agency must consider

5    the harm suffered in the aggregate.         Poradisova, 420 F.3d at 79-80.

6    Past persecution can be established by harm other than threats to

7    life or freedom, including “non-life-threatening violence and

8    physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.

9    2006). And, while the harm must be severe, rising above “mere

10   harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341

11   (2d Cir. 2006), it is sufficient, in order to show past persecution,

12   that the applicant was “within the zone of risk when [a] family member

13   was   harmed,   and    suffered   some    continuing   hardship   after   the

14   incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).

15         Mann’s claim of past persecution rested on the following

16   incidents:      Mann and his brother were longtime members of the

17   Congress Party. Members of opposition parties, the Akali Dal Party

18   and the Bharatiya Janata Party (“BJP”) had successively solicited

19   Mann and his brother’s departure from the Congress Party to join their

20   parties. After Mann and his brother refused to depart the Congress

21   Party, the opposition party members stopped Mann and his brother in

22   the street and assaulted Mann’s brother. At the time of the assault,

23   both Mann and his brother were in a car in the middle of doing

24   political work.       Mann managed to escape the car and their attackers.

                                           4
1    His brother, however, was severely injured: he both lost a leg and

2    suffered    mental   incapacitation.     Subsequently,    Mann   fled   his

3    hometown, residing in Chandigarh, a neighboring city, for two months,

4    and, after that, moved to Delhi. During that time, his family was

5    responsible for caring for his brother’s permanent disabilities and

6    injuries.

7           Upon review, the IJ found the fact that Mann himself had not

8    suffered physical harm to be dispositive of his past persecution

9    claim. Yet physical harm is not always needed for a showing of past

10   persecution. And, it is not required in an analysis undertaken under

11   Tao Jiang’s “zone of risk” and “continuing hardship” tests.

12         Because (i) the IJ’s analysis does not directly address the

13   question of whether Mann was sufficiently within “the zone of risk”

14   when a family member (here, his brother) was seriously harmed, and,

15   (ii) it is certainly conceivable that on direct reconsideration

16   Mann’s flight from his hometown and help to his family in caring for

17   his   brother   constitutes   the    sufferance   of     “some   continuing

18   hardship,” we hereby GRANT Mann’s petition for review, and VACATE

19   the decision of the BIA. We REMAND Mann’s claim of persecution to

20   the BIA for further consideration in light of Tao Jiang’s “zone of

21   risk” and “continuing hardship” requirements.

22

23                                       FOR THE COURT:
24                                       Catherine O’Hagan Wolfe, Clerk


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