By 2004, my final year of law school, I had stopped completely hating law school 🙂 and I became a decent law school exam writer. I share one of my unedited International Refugee Law take-home exams with you to show you the journey of my life and writing.
I picked up the two final exam prompts at 9:00 a.m., read and annotated them on BART, and once I arrived home, I wrote for the next twenty four hours. Outlined, brainstormed, researched, wrote, revised, revised, revised, revised. I probably slept two hours, and then I went back to Hastings and submitted them. Writing these exams was good training, and the process helped me empathize with my own students.
QUESTION TWO: M.J.
M.J. vs. USCIS
M.J., a fifteen-year old Mauritanian citizen, witnessed the killing of his father and was the subject of beatings, death threats, forced labor, and severe harassment by a political and religious fascist cult of ultra national light skinned Mauritanians.
M.J. seeks review of a Board of Immigration Appeal’s (BIA’s) summary affirmance of an Immigration Judge’s (IJ’s) decision denying his asylum, withholding, and Convention Against Torture claims. Because the evidence compels the decision that M.J. suffered past persecution and has a well-founded fear of persecution on account of his race and nationality, political opinion, religion, and his membership in a particular social group, we conclude that he is entitled to both asylum and withholding. We also conclude that M.J. merits relief under the Convention Against Torture. We, therefore, reverse the BIA and IJ’s decision.
M.J., a fifteen-year old asylum seeker, testified that light skinned Mauritanians have been trying to drive all dark skinned Mauritanians out of his country. On one occasion, they killed his father, drove his family off their land, knocked him unconscious and kidnapped him so that he could be their slave for forced labor. He was then forced into hard labor with others like him. If he did not submit, he would be tortured or killed. During this two-year period of forced labor, he was given little to eat, and he was required to work until he passed out in exhaustion. Light skinned Mauritanians thought they were granting favor upon him when they forced him to participate in a religious ceremony that made him renounce his family and people, even though he did not want to be part of this. Due to the help of a missionary, he was able to escape, and with a fraudulent passport he was able to gain entry into the U.S. In support of his application he has submitted various country condition reports corroborating his story, and a psychological evaluation from a psychologist finding the respondent to be suffering from Post Traumatic Stress Disorder (PTSD).
I. STANDARD OF REVIEW
The BIA’s summary affirmance that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence based on the record as a whole. The decision can be reversed only if the evidence presented was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. (Zacarias).
The IJ first claims that M.J.’s testimony is incredible. Whether MJ.’s testimony is credible or not is a question of fact, to which we apply the substantial evidence test. We will uphold the IJ’s decision unless no reasonable factfinder could find otherwise.
The IJ states that M.J. claims to be a national of Mauritania but that there is no evidence of this other than his testimony. Under Mogharrabi, credible testimony can be enough to prove a claim. The IJ, however, states that M.J. was very nervous when testifying so M.J. must have been lying. Under Iraheta, however, in order to deny for credibility the IJ must specifically state his reasons for findings of lack of credibility. Under United Nations High Commissioner for Refugees (UNHCR) paragraph 197, the requirement of evidence should not be too strictly applied in view of the refugee’s difficult situation.
In this case, the I.J. has stated that M.J. is incredible because he was nervous, but this does not take into account the previous consistent statements, nor the psychological evaluation from the psychologist that M.J. is suffering from PTSD, which would account for nervousness. Furthermore, even though the IJ finds it totally unbelievable that a missionary would help M.J., there is no mention in the record that he was cross-examined on this point and therefore under Shoafera, because the IJ failed to produce contrary evidence, we must accept M.J.’s testimony. It is not enough for the IJ to find that M.J. is incredible without specifically mentioning the grounds for his judgment. Here, the testimony is consistent and detailed, and so the claim that M.J. was nervous does not refute the above-mentioned factors. The country condition reports further corroborate and substantiate M.J.’s claim. Lastly, because of M.J.’s peculiar situation, it is unreasonable to expect him to be able to submit proof of his Mauritanian nationality. Therefore, applying the substantial evidence standard, we find that it is against the weight of the evidence to have found M.J.’s testimony incredible. The IJ erred, and we find that M.J.’s statements are credible.
III. PERSECUTION ON ACCOUNT OF
The IJ next claims that even if M.J. is telling the truth, he is not eligible for relief as a matter of law. Because we have found that M.J.’s testimony is credible, whether M.J. could be eligible for relief is a matter of law. Our standard of review, therefore, is de novo.
The IJ first claims that because many people in Mauritania must perform hard labor, M.J. is not necessarily being persecuted. Under Cardoza Fonseca, a well founded fear has both subjective and objective components to it. If a victim feels that he is being persecuted on account of at least one of the five protected grounds and the fear is a reasonable one, then the well-founded fear standard has been met. Even a one in ten chance of persecution can be enough to show a well founded fear. Under UNHCR, to establish well foundedness, persecution must be proved to be reasonably possible. M.J. has a subjective fear of being persecuted and it is reasonable that he have this fear. It is therefore irrelevant whether many people in Mauritania have to perform hard labor. Here, what M.J. must prove is that he, unlike the IJ’s “others” in Mauritania, is fearful of having to perform hard labor on account of at least one of the five protected grounds. Therefore, it was an error of law for the IJ to imply that just because M.J. was situated like others in Mauritania, he was not eligible for relief.
The IJ next stated that M.J. was not persecuted on account of one of the five protected grounds. He first states that M.J. was not persecuted on account of his race because M.J. never told his captors his race or nationality. In re OZ & IZ holds that cumulative evidence that shows a systemic persecution on account of race can be enough to prove persecution on account of race. Guinac holds that persecution is more than just discrimination; it is not minor or trivial disadvantage. Shoafera further states that in a mixed motives case, where one motive is protected and the other is not, there is persecution as long as one of the persecutory motive is on account of race. The UNHCR states in paragraph 68 that race has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as races in common usage.
M.J. has submitted detailed reports that light skinned Mauritanians are wiping out dark skinned Mauritanians. On the first day of his tragic, non-trivial ordeal, the light skinned Mauritanians shouted insults directed at the black skinned Mauritanians. He was herded together with other dark skinned Mauritanians, who were also forced into this slavery. They forced him to denounce his own people, the dark skinned Mauritanians because they felt that only the light skinned Mauritanians were enlightened. M.J. is a dark skinned Mauritanian. Furthermore, even if M.J. never told them that he was a dark skinned Mauritanian or in fact he was not a Mauritanian at all, the persecutors here believed that he was and persecuted him on account of it. It is irrelevant whether he told them or not because they imputed that trait upon him (Lazo Majano). Therefore, it was an error of fact that goes against the weight of the evidence for the IJ to have stated that he was not persecuted on account of his race.
The IJ’s next claim is that because M.J. did not tell his captors his religion, they could not have been persecuting him on account of it. It is true that under a strict Zacarias analysis some evidence of the persecutor’s motive is required in order to prove the nexus needed to prove persecution on account of one of the five grounds. However, Zacarias did not overrule the concept of imputed political opinion. In this case the light skinned Mauritanians believed that only they were the chosen people. They forced M.J. to denounce his own people and give gratitude to them for taking part in their religion. In this case, therefore, the light skinned Mauritanians imputed an inferior spiritual realm upon M.J. and persecuted him for it. As in In Re S-A- this was persecution on account of religious beliefs as they differed from those of the persecutor. Additionally, even though his captors thought they were doing a favor to M.J. by forcing him to participate in the religious ceremonies, under Kasinga punitive motive is not required to establish persecution. Since this is the case, the IJ’s determination that M.J. was not persecuted on account of religion was an error of fact that is against the weight of the evidence and an error of law because imputed political opinion, although it overlaps with religion, is a protected ground.
IIIc. PARTICULAR SOCIAL GROUP (PSG)
The IJ next states that there can be no social group based on gender and age, and therefore M.J. does not qualify for relief. While it may be correct in stating that there is no protection offered for the broad classes for the social groups of gender and age, the proper social group categorization should not have been based on gender and age alone. Under Acosta the individual who is a member of the group must share a common characteristic that is immutable or fundamental to his identitiy or conscience. Sanchez Trujillo further holds that a PSG cannot be based on mere membership in a large statistical group. In Hernandez-Montiel we adopted the Acosta holding that is relevant to this case. As a matter of law, therefore, the appropriate narrow social group in this case is that group in Mauritania made up of young dark skinned Mauritanian boys who have been kidnapped by light skinned Mauritanians for forced labor. As a matter of fact, we find that M.J. is a member of this particular group, and it was error against the great weight of the evidence for the IJ to hold otherwise.
The last contention of the IJ is that the light skinned Mauritanians forced him into these deplorable conditions because he was young and strong, not because of race, religion, political opinion or particular social group. Because this is a finding of fact, we must give deference to the IJ unless there is substantial evidence to hold otherwise. Due to the overwhelming evidence on the record and the analysis above, this claim is somewhat preposterous. The country conditions report, the insults shouted to M.J. and his family, the killing of his father, and the forced labor and religious brainwashing all slant the scales against the IJ’s analysis. Therefore, the IJ’s decision that the light skinned Mauritanians persecuted M.J. because he was young and strong is an error of fact.
IV. BARS AGAINST RELIEF
The IJ claims that M.J. is ineligible for relief because he is statutorily barred because he used a forged travel document to enter the United States. The IJ’s claim is an error of law. We will review this de novo. Under Pula, the IJ must look at the totality of the circumstances regarding the use of the forged documents. Using forged documents is not a statutory bar; however, the IJ has discretion to either grant or deny the asylum application based on the use of fraudulent records. While it is correct that in Pula the BIA stated that fraud to escape may be acceptable, but fraud to enter the United States may not be acceptable, the BIA did not definitively bar fraudulently entering as a per se bar.
Here, the IJ used his discretion to bar M.J. relief. We will reverse this only if there is an abuse of discretion. Because M.J. had suffered through such a terrifying ordeal, has PTSD, could only escape to a safe country through the help of a stranger that he did not even know if he could fully trust, was only fifteen years old and unsophisticated of the severity of the penalties for the use of fraudulent documents, and has made (what seems to be) an affirmative application for asylum, we find that the IJ abused his discretion in denying relief because M.J. used fraudulent documents to enter the U.S. We, therefore, reverse the IJ’s holding and order a discretionary granting of asylum.
Because we grant asylum, we do not find it necessary to reach the withholding or Convention Against Torture (CAT) issues, even though M.J. met the more likely than not greater burden necessary for withholding, and even though the IJ’s assessment of the CAT is contrary to law because under Zheng knowledge or awareness is enough to fall within the term acquiescence to torture, and the country condition reports show that there is awareness that light skinned Mauritanians carry out this type of forced enslavement and torture against dark skinned Mauritanians.
The IJ’s determinations of fact and law and the BIA’s summary affirmance are fatally flawed as a matter of law and are not supported by substantial evidence. Furthermore, the IJ abused his discretion in this case when he denied asylum based on M.J.’s use of fraudulent documents to enter the country.
The BIA’s affirmance is, therefore, reversed.