Fourth Circuit Court of Appeals Grants Review and Remands After Finding BIA Erred in Finding Applicant Failed to Establish Past Persecution
Mocktar Tairou, a Beninese citizen, received numerous death threats against both himself and his family resulting from his sexual orientation. After being assaulted and threatened on multiple occasions, he applied for admission to the United States at the Washington, D.C. port of entry on March9, 2014. 9 days later, an asylum officer determined that Tairou’s fear of persecution or torture were credible, referring Tairou to an Immigration Judge (IJ). The Department of Homeland Security (DHS) subsequently initiated removal proceedings on the grounds of Tairou’s inadmissibility due to his failure to produce a valid etry document. Tairou conceded removability before the Immigration Judge and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Tairou detailed the assaults and death threats he received while in Benin and submitted documentation regarding his sexuality and photos identifying the injuries he sustained resulting from the assaults. Establishing that these occurrences were not isolated incidents, Tairou submitted evidence of conditions in Benin which showed that “homosexuality is very unacceptable” and “violent reprisal is a real danger.” The IJ concluded that Tairou’s testimony was credible, establishing him in a particular social group identified as “homosexuals in Benin.” Despite this conclusion, the IJ denied Tairou’s petition for asylum, withholding of removal, and CAT protection, determining that Tairou failed to establish he suffered past persecution or that he had a well-founded fear or persecution upon his return to Benin. The Board of Immigration Appeals (BIA) issued its own opinion after Tairou appealed the IJ’s decision, finding that he failed to adequately establish past persecution and a well-founded fear of future persecution, and concluding that Tairou was ineligible for asylum, withholding of removal or protection under the CAT.
The Fourth Circuit Court of Appeals found the BIA to have erred in its conclusion that Tairou had not suffered past persecution, reasoning that Tairou suffered neither major physical injuries nor long-term mental harm or problems. The Fourth Circuit asserted that the threats of death Tairou received alone constituted persecution, and Tiarou was not required, as the BIA claimed, to demonstrate a major physical injury or long-term mental harm to meet this designation. Since the BIA conceded that Tairou had in fact received the death threats, and the fourth circuit determined such threats constitute evidence of past persecution, Tairou was entitled to the presumption of a fear of future persecution, the fourth circuit granted Tairou’s petition for review and remanded the case to the BIA to determine whether the Government can rebut the presumption that Tairou has a well-founded fear of future persecution.
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