         10-238-ag
         Camara v. Holder
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A095 869 931
                             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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10th day of March, two thousand eleven.
 5
 6       PRESENT:
 7                 JOSEPH M. McLAUGHLIN,
 8                 ROBERT A. KATZMANN,
 9                 PETER W. HALL,
10                        Circuit Judges.
11       _______________________________________
12
13       MAMADOU NEGUE CAMARA,
14                Petitioner,
15
16                          v.                                  10-238-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Ronald S. Salomon, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ada E. Bosque, Senior
28                                     Litigation Counsel; Jonathan
29                                     Robbins, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is GRANTED.

 5       Petitioner Mamadou Negue Camara, a native and citizen

 6   of Guinea, seeks review of a December 28, 2009, decision of

 7   the BIA affirming the January 25, 2008, decision of

 8   Immigration Judge (“IJ”) Helen J. Sichel, denying his

 9   application for asylum, withholding of removal, and relief

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

11   Negue Camara, No. A095 869 931 (B.I.A. Jan. 25, 2008), aff’g

12   No. A095 869 931 (Immig. Ct. N.Y. City Sept. 12, 2006).      We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

18   Cir. 2008).    The applicable standards of review are well

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

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

21       As an initial matter, we decline to address Camara’s

22   argument that the IJ erred in making an adverse credibility


                                     2
 1   finding because, as the BIA stated, the IJ did not make any

 2   such finding.   Camara also argues that the agency erred in

 3   ignoring background evidence regarding conditions in Guinea.

 4   However, there is no indication that the agency ignored any

 5   material evidence.     See Xiao Ji Chen v. United States Dep’t

 6   of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e

 7   presume that an IJ has taken into account all of the

 8   evidence before him, unless the record compellingly suggests

 9   otherwise.”).   Indeed, the IJ specifically stated that she

10   had reviewed the evidence of country conditions in

11   evaluating Camara’s claim.

12       We nevertheless conclude that the agency erred in its

13   analysis of Camara’s claim of past persecution.        Camara

14   testified that he was arrested, and later abused, by the

15   Guinean military because he wore a shirt indicating support

16   for the Union for Progress and Renewal (“UPR”), a political

17   opposition party.     The IJ stated, without explanation, that

18   Camara did not establish that the arrest occurred and, that

19   if it did occur, the arrest and mistreatment did not

20   constitute past persecution.     The BIA further found that

21   Camara did not demonstrate that he was harmed because of

22   political activity.     These findings cannot stand.


                                     3
 1       We have explained that an asylum applicant’s burden of

 2   proof can be met where the applicant provides “consistent,

 3   detailed, and credible testimony,” unless corroboration is

 4   required by the agency.    Diallo v. INS, 232 F.3d 279, 285

 5   (2d Cir. 2000).   We further elaborated that, before denying

 6   a claim solely because of an applicant’s failure to provide

 7   corroborating evidence, the agency must “explain

 8   specifically, either in its decision or otherwise in the

 9   record: (1) why it is reasonable under the BIA’s standards

10   to expect such corroboration; and (2) why [the applicant’s]

11   proffered explanations for the lack of such corroboration

12   are insufficient.” Id. at 290.

13       In this case, the agency did not make an adverse

14   credibility finding, and so we assume arguendo that Camara’s

15   detailed testimony about his arrest and detention was

16   credible.   Id. at 288 (finding that whether an applicant is

17   credible “is an assessment that the IJ and then the BIA

18   should make in the first instance” and assuming credibility

19   for purposes of review).   Further, the agency did not

20   specify why evidence corroborating Camara’s arrest and

21   detention was required under the circumstances present here.

22   Accordingly, assuming his testimony to be credible, Camara


                                    4
 1   established that he was arrested and beaten.

 2       Moreover, if the operative events happened as Camara

 3   described, the testimony compels the conclusion that Camara

 4   was arrested and detained because of either political

 5   opinion or imputed political opinion.     See 8 U.S.C.

 6   § 1252(b)(4)(B).     While the BIA found that Camara did not

 7   establish that he suffered past persecution on account of

 8   political opinion, the finding was based on Camara’s lack of

 9   knowledge about the UPR and his lack of involvement with the

10   group and Guinean politics while in the United States.     This

11   finding supports the agency’s conclusion that Camara is not

12   a committed UPR activist who, if returned to Guinea, would

13   be involved in politics; it does not, however, address the

14   specific issue of whether Camara was arrested and beaten

15   because of a political opinion or an imputed political

16   opinion.

17       Camara testified that he and several friends wore UPR

18   t-shirts to signify their support for the party and because

19   Camara’s father had been arrested by the Guinean government

20   as a UPR activist.     Camara stated that, after a fight

21   started by students who supported the party in power, the

22   military arrested and detained only those students wearing


                                     5
 1   UPR t-shirts.     Camara also testified that the chief in the

 2   location where he was detained advised him that, “if [he]

 3   ever return[ed] to this kind of trouble about political

 4   issues . . . they [would] lock [him] up for the rest of

 5   [his] life or kill [him].”     This testimony indicates that

 6   Camara was arrested and beaten by the military because of

 7   his support for the UPR, i.e., on account of a political

 8   opinion.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545

 9   (2d Cir. 2005).     Accordingly, remand is necessary for the

10   agency to consider whether Camara suffered past persecution

11   during this incident.

12       While the IJ stated that, even if Camara established

13   that he was arrested, the arrest did not constitute past

14   persecution, she did not provide any reasoning for that

15   conclusion.     Persecution requires that the harm suffered be

16   sufficiently severe, rising above “mere harassment.”

17   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

18   Cir. 2005).     The difference between harassment and

19   persecution is one of degree, which must be assessed with

20   regard to “the context in which the mistreatment occurs.”

21   Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

22   Accordingly, we have cautioned the agency to be “keenly


                                     6
 1   sensitive” to the fact that a “minor beating, or for that

 2   matter, any physical degradation designed to cause pain,

 3   humiliation, or other suffering, may rise to the level of

 4   persecution if it occurred in the context of an arrest or

 5   detention on the basis of a protected ground.”   Id. at 226;

 6   see also Baba v. Holder, 569 F.3d 79, 85 (2d Cir. 2009).

 7       Here, Camara testified that he was detained for three

 8   days, during which he was beaten with a stick and burnt with

 9   cigarettes.   Given the detention context, such violent

10   conduct may be said to exceed “the mere annoyance and

11   distress that characterize harassment,” and may rise to the

12   level of persecution.   Ivanishvili, 433 F.3d at 342; see

13   also Beskovic, 467 F.3d at 226; Baba, 569 F.3d at 85.

14   Nevertheless, “[w]e have never held that a beating that

15   occurs within the context of an arrest or detention

16   constitutes persecution per se.”   Jian Qiu Li v. Holder, No.

17   09-5258-ag, slip op. at 4 (2d Cir. Jan. 24, 2011).

18       Accordingly, assuming credibility, Camara’s testimony

19   may establish that he was persecuted on account of a

20   political opinion.   Because an applicant who has established

21   past persecution receives a rebuttable presumption that he

22   has a well-founded fear of future persecution, see 8 C.F.R.


                                   7
 1   §§ 1208.13(b)(1), 1208.16(b)(1), we vacate the agency’s

 2   opinion and remand for further consideration of Camara’s

 3   claim of past persecution based on his own or an imputed

 4   political opinion and for consideration of whether the

 5   government can rebut a presumption of future persecution if

 6   in fact the agency finds past persecution.   See INS v.

 7   Orlando Ventura, 537 U.S. 12, 16-17 (2002) (remanding for

 8   consideration in the first instance of matters entrusted to

 9   the agency by statute).

10       We also vacate the agency’s finding that Camara did not

11   establish his eligibility for CAT relief because the

12   agency’s analysis was premised in part on its conclusion

13   that Camara did not establish that he was arrested and

14   abused in Guinea.   In evaluating his claim for CAT relief,

15   the agency should properly determine whether Camara

16   established that he suffered past torture in Guinea and, if

17   so, whether that mistreatment indicates that he faces a

18   likelihood of torture if he is removed.   See 8 C.F.R.

19   § 1208.16 (c)(3)(i) (providing that the agency shall

20   consider “[e]vidence of past torture inflicted upon the

21   applicant” in evaluating claims for CAT relief).

22       For the foregoing reasons, the petition for review is


                                   8
 1   GRANTED, and the case REMANDED for further proceedings

 2   consistent with this order.    As we have completed our

 3   review, any pending motion for a stay of removal in this

 4   petition is DISMISSED as moot.     Any pending request for oral

 5   argument in this petition is DENIED in accordance with

 6   Federal Rule of Appellate Procedure 34(a)(2), and Second

 7   Circuit Local Rule 34.1(b).

 8                                 FOR THE COURT:
 9                                 Catherine O’Hagan Wolfe, Clerk
10
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