     14-1164
     Abdalla v. Sessions
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A099 564 450
                                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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   IMAN SHOUKRI NASHED ABDALLA,
14            Petitioner,
15
16                         v.                                        14-1164
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Elyssa N. Williams, Formica
24                                         Williams, P.C., New Haven, CT.
25
26   FOR RESPONDENT:                       Benjamin C. Mizer, Principal Acting
27                                         Assistant Attorney General; John W.
28                                         Blakeley, Assistant Director; Jason
29                                         Wisecup, Christina J. Martin, Trial
30                                         Attorneys, Office of Immigration
31                                         Litigation, United States
32                                         Department of Justice, Washington,
33                                         D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

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

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

4    GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

5    for further proceedings consistent with this order.

6         Petitioner Iman Shoukri Nashed Abdalla, a native and

7    citizen of Egypt, seeks review of a March 25, 2014, decision

8    of the BIA affirming the June 6, 2008, and June 5, 2012 decisions

9    of an Immigration Judge (“IJ”) denying Abdalla’s application

10   for asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).         In re Iman Shoukri Nashed

12   Abdalla, No. A099 564 450 (B.I.A. Mar. 25, 2014), aff’g No. A099

13   564 450 (Immig. Ct. Hartford June 6, 2008 and June 5, 2012).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16        We have reviewed the BIA’s decision as well as the IJ’s 2008

17   and 2012 decisions “for the sake of completeness.”         Wangchuck

18   v. DHS, 448 F.3d 524, 528 (2d Cir. 2006).         Because the agency

19   proceedings were reopened while the initial petition for review

20   was pending, the initial decisions by the IJ and BIA were not

21   subject to review until entry of the new final administrative

22   order in 2014.   See 8 U.S.C. § 1252(a)(1); Chupina v. Holder,

23   570 F.3d 99, 103 (2d Cir. 2009).       We therefore have jurisdiction

                                        2
1    to review the agency’s initial determination that Abdalla

2    failed to establish past persecution, as well as its subsequent

3    rulings.      The   applicable       standards         of   review    are   well

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

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

6           The BIA has defined persecution as a “threat to the life

7    or freedom of, or the infliction of suffering or harm upon, those

8    who differ in a way regarded as offensive.”                 Matter of Acosta,

9    19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled in part on

10   other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

11   accord Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342

12   (2d Cir. 2006).       Past persecution can be based on harm other

13   than     threats      to      life        or     freedom,       “includ[ing]

14   non-life-threatening violence and physical abuse,” Beskovic v.

15   Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm

16   must be sufficiently severe to rise above “mere harassment,”

17   Ivanishvili,    433    F.3d    at    341.        The    difference     between

18   harassment and persecution is “necessarily one of degree that

19   must be decided on a case-by-case basis.”                      Id.     We have

20   explained that the “technique of addressing the severity of each

21   event    in   isolation,      without     considering        its     cumulative

22   significance,” constitutes error.              See Poradisova v. Gonzales,

23   420 F.3d 70, 79 (2d Cir. 2005).

                                           3
1        Abdalla is correct that the agency failed to consider her

2    incidents of past harm in the aggregate.           Although the agency

3    found that there was no evidence of a nexus between the incidents

4    with the cab or bus drivers and Abdalla’s Coptic Christian

5    faith, the agency did not mention Abdalla’s other alleged

6    incidents of past harm in its past persecution analysis.           Those

7    additional   incidents,    which       included    robberies,     sexual

8    harassment, abductions, and forced (or attempted forced)

9    conversions of family members to Islam, were significant.

10   Although the IJ stated that Abdalla’s claims “are very likely

11   exaggerated,”   he   did   not     make    an     adverse    credibility

12   determination or identify which of Abdalla’s allegations of

13   past harm were not supported by the country conditions evidence.

14   The country conditions evidence does not flatly contradict

15   Abdalla’s claims, so the basis for the IJ’s conclusion is not

16   self-evident.   Because the agency did not consider Abdalla’s

17   incidents of past harm in the aggregate and the IJ did not

18   sufficiently explain its finding that her claims are likely

19   exaggerated, we are unable to meaningfully review the agency’s

20   past persecution finding.        See Beskovic, 467 F.3d at 227

21   (requiring analysis sufficient to enable meaningful judicial

22   review).   Remand is therefore required for the agency to more

23   fully assess Abdalla’s allegations of past harm.            See Tian-Yong

                                        4
1    Chen v. U.S. INS, 359 F.3d 121, 127-28 (2d Cir. 2004) (noting

2    that remand is appropriate where the agency’s decision “omit[s]

3    potentially significant facts” so fundamental to the claim that

4    “we are unable adequately to consider whether substantial

5    evidence supports the BIA’s determination”).

6        The error in the past persecution analysis affected the

7    remainder of the agency’s decisions because past persecution

8    entitles an asylum applicant to a presumption of a well-founded

9    fear of future persecution.   8 C.F.R. § 1208.16(b)(1)(i)(“If

10   the applicant is determined to have suffered past persecution

11   in the proposed country of removal on account of race, religion,

12   nationality, membership in a particular social group, or

13   political opinion, it shall be presumed that the applicant’s

14   life or freedom would be threatened in the future in the country

15   of removal on the basis of the original claim.”).   Accordingly,

16   we do not reach the issue of any independent fear of future

17   persecution as it is unclear whether Abdalla or the Government

18   had the burden of proof.   See Kyaw Zwar Tun v. U.S. INS, 445

19   F.3d 554, 565 (2d Cir. 2006).

20       Given that the agency is required to consider Abdalla’s

21   past persecution and fear of future persecution in light of

22   current country conditions, and given the significant passage

23   of time since the agency’s decision, the parties should be

                                     5
1    permitted to update the country conditions evidence, including

2    any relevant testimony.   See Secaida-Rosales v. INS, 331 F.3d

3    297, 312-13 (2d Cir. 2003) (holding that because a significant

4    amount of time had passed since the IJ’s initial ruling, the

5    record should be supplemented with evidence of current country

6    conditions on remand), superseded by statute in part on other

7    grounds as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162

8    (2d Cir. 2008).

9        For the foregoing reasons, the petition for review is

10   GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

11   for further proceedings consistent with this order.   As we have

12   completed our review, any stay of removal that the Court

13   previously granted in this petition is VACATED, and any pending

14   motion for a stay of removal in this petition is DISMISSED as

15   moot.   Any pending request for oral argument in this petition

16   is DENIED in accordance with Federal Rule of Appellate Procedure

17   34(a)(2), and Second Circuit Local Rule 34.1(b).

18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk




                                    6
