Of the Northern District of Florida, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 06-2599

07-1754

ZULKIFLY KADRI,

Petitioner,

v.

MICHAEL B. MUKASEY,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Stafford, District Judge, *

Torruella, Circuit Judge.

William A. Hahn, and Hahn & Matkov, on brief for petitioner.

Corey L. Farrell, Attorney, Office of Immigration Litigation,

Jeffrey S. Buscholtz, Acting Assistant Attorney General, Civil

Division, and Greg D. Mack, Senior Litigation Counsel, on brief for

respondent.

September 30, 2008
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TORRUELLA, Circuit Judge. Zulkifly Kadri, a Muslim

native of Indonesia, came to the United States on a non-immigrant

visa. He filed a petition for asylum on the ground that he was

persecuted in Indonesia because of his sexual orientation. He

asserted that he was ostracized in the workplace and prevented from

earning a livelihood as a medical doctor; and that he fears that if

returned to Indonesia, he would face continued persecution. An

Immigration Judge ("IJ") found him credible, found that he belonged

to a particular social group, and granted him asylum. The

Department of Homeland Security ("DHS") appealed to the Board of

Immigration Appeals ("BIA"), and the BIA reversed the decision of

the IJ. Kadri petitions for a review of the BIA's decision. After

careful consideration, we grant the petition and remand.

I. Background

"We summarize the evidence as [Kadri] presented it to the

IJ in [his] testimony and in the affidavit accompanying [his]

asylum application; we then consider the IJ's and BIA's findings in

relation to that evidence." Sok v. Mukasey, 526 F.3d 48, 50 (1st

Cir. 2008) (citing Mihaylov v. Ashcroft, 379 F.3d 15, 18 (1st Cir.

2004)). Kadri worked as a doctor in Jakarta, Indonesia at the

Usada Insani Hospital from 1992 until 2001, and at the Abdul Rahman

Clinic from 1997 until 1999. In 1999, Kadri testified that the

owner of the Abdul Rahman Clinic fired him because he heard rumors

that he was a homosexual. According to Kadri, the owner of the
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clinic said that he could not "tolerate [Kadri's homosexual]

behavior."

In May 2001, the board of the Usada Insani Hospital

summoned Kadri and asked him about rumors that he was a homosexual.

He refused to answer their questions and informed the board that

his sexual orientation was a private matter. The next month, Kadri

testified that he was verbally assaulted by a regular client whose

extended family he knew well. In a crowded emergency room, the

woman screamed over and over again: "Get out, faggot, and don't

touch my son." Following this incident, other patients refused to

be seen by Kadri. The hospital board again asked Kadri about his

sexual orientation; again, he refused to answer, reiterating that

their questions had nothing to do with his responsibilities as a

doctor. The hospital asked him to voluntarily resign, but he

refused. Though Kadri retained his job at the hospital, he was

only paid a base salary of about $10 a month because he was not

assigned any patients. Following these incidents, word spread to

Kadri's colleagues that he was a homosexual; his colleagues avoided

him and refused to talk to him.

Kadri retained a lawyer and filed a lawsuit against the

hospital. Kadri asserts that the judge was merely interested in

his sexual orientation and not in how he performed at the hospital.

Even though his lawyer objected to the line of questioning by

opposing counsel and the judge regarding Kadri's sexual orientation
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and private life, the judge demanded to know if Kadri was a

homosexual. Kadri testified that he felt "torture[d] mentally" by

the judge and, thus, dropped his case.

Kadri entered the United States on a non-immigrant visa

on May 16, 2002, and he was authorized to remain in the United

States until November 15, 2002. Kadri filed an I-589 asylum

application with the Immigration and Naturalization Service ("INS")

-- now DHS -- while he was still lawfully in the United States. In

his application, Kadri stated that he is a homosexual and that he

was seeking asylum based on his membership in a particular social

group. He was interviewed by an asylum officer who referred his

application to the immigration court. At the hearing, Kadri

recounted his experiences at the clinic and hospital. He presented

evidence that described the social climate for homosexuals in

Indonesia and how they have been treated in society generally and

by the government in particular. Kadri also submitted two letters

to the IJ from former colleagues -- one from the hospital and one

from the clinic -- confirming that his problems at the two

facilities resulted from rumors that he was a homosexual.

Kadri testified that he did not attempt to open his own

medical practice in Indonesia because of the difficulty and

barriers to opening a private practice. He also testified that the

medical community is small and insular and that the rumors about

his sexual orientation were already rampant within a professional
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community where "[e]verybody knows everybody." Kadri testified

that it would not have mattered if he had moved to a different part

of Indonesia given the size and intimacy of the medical community;

the rumors about his sexual orientation would follow him anywhere

in the country. He noted that the medical community is like "a big

family in Indonesia, and so everywhere I go, I still can find my

. . . colleagues there. I still can find my classmate[s]

everywhere, so anywhere I go this story will follow[] me."

The IJ found Kadri credible and concluded that he

suffered past persecution because he was deprived of the ability to

earn a living. After reviewing the evidence in the record, the IJ

concluded that Kadri met his burden of proving a well-founded fear

of future persecution. The IJ specifically found that "in

Indonesia [there is] an attitude, atmosphere, and an environment of

hostility towards the gay community, which is so discriminatory and

so pervasive as to rise to the level of persecution." Furthermore,

the IJ found that a reasonable person in Kadri's situation would

fear persecution. For these reasons, he granted asylum. The DHS

appealed the grant of asylum to the BIA, and the BIA reversed by a

vote of two to one. The BIA majority disagreed with the IJ's

conclusions regarding Kadri's claim that he suffered past

persecution, holding that "the economic deprivation described by
 The dissenting panel member concluded that "it is not apparent 1

that [the IJ] employed the correct standard" for economic

persecution and would have remanded on that basis; he expressed no

view on Kadri's claim of future persecution.

 The National Lawyers Guild, the Gay & Lesbian Advocates & 2

Defenders, and the National Immigrant Project submitted an amicus

brief in support of Kadri.

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the respondent does not compel a finding of past persecution."1

Noting that "closeted homosexuality is tolerated in Indonesia" and

that the State Department's human rights report does not mention

violence against homosexuals, the majority concluded that Kadri did

not present sufficient evidence of a well-founded fear of future

persecution. Kadri filed a motion to reconsider, but the BIA

denied the motion. Kadri petitions for review.2

II. Discussion

A. Standard of Review

This court reviews the factual findings of the BIA for

substantial evidence. Orelien v. Gonzáles, 467 F.3d 67, 70 (1st

Cir. 2006). The BIA's fact-based determinations should be upheld

unless a "reasonable adjudicator would be compelled to conclude to

the contrary." Id. (quotation marks and citation omitted). "Put

another way, the BIA's findings of fact must be accepted as long as

they are 'supported by reasonable, substantial, and probative

evidence on the record considered as a whole.'" Id. (quoting I.N.S.

v. Elías-Zacarías, 502 U.S. 478, 481 (1992)); accord HernándezBarrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). We will
 Kadri argues that the BIA did not apply the appropriate standard 3

under this regulation; however, we need not decide this issue

because we remand on other grounds.

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reverse the BIA if a petitioner "show[s] that the evidence he

presented was so compelling that no reasonable factfinder could

fail to find the requisite fear of persecution." Elías-Zacarías,

502 U.S. at 483-84; accord Quevedo v. Ashcroft, 336 F.3d 39, 43

(1st Cir. 2003). Generally, the BIA is prohibited from "engag[ing]

in factfinding in the course of deciding appeals." 8 C.F.R.

§ 1003.1(d)(3)(iv). "Facts determined by the immigration judge,

including findings as to the credibility of testimony, shall be

reviewed only to determine whether the findings of the immigration

judge are clearly erroneous." Id. § 1003.1(d)(3)(i). The BIA's 3

legal conclusions are reviewed de novo, but we give appropriate

deference to its interpretations of the governing statute. See Lin

v. Mukasey, 521 F.3d 22, 26 (1st Cir. 2008) (citing Albathani v.

I.N.S., 318 F.3d 365, 372 (1st Cir. 2003)).

B. Applicable Law

The Attorney General has the discretion to grant an

alien asylum if the alien is a refugee. See 8 U.S.C.

§ 1158(b)(1)(A). A "'refugee'" is any person outside his or her

home country "who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection

of, that country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership
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in a particular social group, or political opinion." Id.

§ 1101(a)(42)(A); accord Ravindran v. I.N.S., 976 F.2d 754, 758

(1st Cir. 1992). To qualify as persecution, the government "must

be the source of or at least acquiesce in the persecution[,] . . .

or there must be some showing that the persecution is due to the

government's unwillingness or inability to control the conduct of

private actors." Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.

2008) (citing Orelien, 467 F.3d at 72). A petitioner bears the

burden of proof that he or she qualifies as a refugee. See 8

C.F.R. § 1208.13(a); see also Sok, 526 F.3d at 53.

If a petitioner can demonstrate that she was persecuted

in the past, the applicable regulation affords her a rebuttable

presumption that she will likely be persecuted if she were returned

to her country of origin. See 8 C.F.R. § 1208.16(b)(1); Sok, 526

F.3d at 53 (citing Rotinsulu v. Mukasey, 515 F.3d 68, 71-72 (1st

Cir. 2008)). The burden then shifts to the Government to rebut the

presumption of future persecution through proof of either a

fundamental change in circumstances eliminating the likelihood of

persecution, or a showing that the petitioner could avoid

persecution by moving elsewhere in his or her country. 8 C.F.R.

§ 1208.13(b)(1)(i)(A)-(B); accord Rotinsulu, 515 F.3d at 72. A

petitioner may also establish asylum eligibility based on a

well-founded fear of future persecution, independently of past

persecution, by demonstrating that the fear is both subjectively
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genuine and objectively reasonable. See Da Silva v. Ashcroft, 394

F.3d 1, 4 (1st Cir. 2005).

We must remand the case for further proceedings if the

agency's decision "fails to state 'with sufficient particularity

and clarity the reasons for denial of asylum' or otherwise to

'offer legally sufficient reasons for [the] decision.'" Mihaylov,

379 F.3d at 21 (quoting Gailius v. I.N.S., 147 F.3d 34, 46-47 (1st

Cir. 1998)).

C. Economic Persecution

The Immigration and Nationality Act does not define

persecution, and we have said that the term "is a protean word,

capable of many meanings." Bocova v. Gonzáles, 412 F.3d 257, 263

(1st Cir. 2005). Generally, persecution is more than discrimination

and rises above unpleasantness, harassment, and even basic

suffering. See Sharari v. Gonzáles, 407 F.3d 467, 475 (1st Cir.

2005). We have held, however, that "mistreatment can constitute

persecution even though it does not embody a direct and unremitting

threat to life or freedom." Bocova, 412 F.3d at 263.

Sexual orientation can serve as the foundation for a

claim of persecution, as it is the basis for inclusion in a

particular social group. See Karouni v. Gonzáles, 399 F.3d 1163,

1172 (9th Cir. 2005) (citing Hernández-Montiel v. I.N.S., 225 F.3d

1084, 1091, 1094-95 (9th Cir. 2000)); Amanfi v. Ashcroft, 328 F.3d

719, 724 (3d Cir. 2003); see also Suzanne B. Goldberg, Give Me
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Liberty or Give Me Death: Political Asylum and the Global

Persecution of Lesbians and Gay Men, 26 Cornell Int'l L.J. 605,

609-12 (1993) (discussing homosexuals as a particular social

group). Kadri listed his membership in a particular social group,

in general, and his sexual orientation, in particular, as the basis

for persecution in his asylum application. The IJ found him

credible and determined that he is a homosexual; the BIA did not

disturb this finding and acknowledged that sexual orientation is a

basis for inclusion in a particular social group.

Kadri argues -- and the IJ found -- that he suffered

economic persecution because he could not earn a living as a

medical doctor. The BIA majority reversed the decision of the IJ.

It noted that Kadri was never physically injured, arrested, or

imprisoned, and concluded that "the economic deprivations [Kadri]

suffered as a result of his sexual orientation . . . do not amount

to persecution." Moreover, Kadri had not met his burden of showing

a well-founded fear of future persecution. The dissenting panel

member, however, would have remanded the case to the IJ to

determine whether Kadri suffered past economic persecution. The

dissenting member noted that "it is not apparent that [the IJ]

employed the correct standard" for economic persecution, which the

dissent described as being set forth in Matter of Acosta, 19 I. &

N. Dec. 211, 222 (BIA 1985), overruled on other grounds by Matter

of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), abrogated on other
 In Matter of Acosta, the petitioner argued that he was eligible 4

for asylum because he claimed to have been deprived of his ability

to earn a living. See 19 I. & N. Dec. at 217. Though the BIA

dismissed the petition, it noted that "persecution . . . could

consist of economic deprivation or restrictions so severe that they

constitute a threat to an individual's life or freedom." Id. at

222.

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grounds by Pitcherskaia v. I.N.S., 118 F.3d 641, 647-48 (9th Cir.

1997). He also noted that it was not clear that we have endorsed

the Acosta standard.

Although the BIA dissent relied upon Matter of Acosta for

its standard of economic persecution, neither the BIA majority nor 4

the IJ stated what standard was used to reject Kadri's economic

persecution claim. The BIA and our sister circuits have not been

consistent in articulating such a standard. Indeed, the Second

Circuit in Mirzoyan v. Gonzáles, 457 F.3d 217, 222-23 (2d Cir.

2006)(per curiam), remanded its case to the BIA to clarify the

applicable standard, noting that the BIA has applied at least three

different standards for economic persecution over the years. The

BIA responded to this instruction in In re T-Z-, 24 I & N. Dec. 163

(BIA 2007). Citing a prior case that had relied upon a 1978 House

of Representatives Report, the BIA in In re T-Z- articulated the

following standard for economic persecution: "[Nonphysical] harm or

suffering . . . such as the deliberate imposition of severe

economic disadvantage or the deprivation of liberty, food, housing,

employment, or other essentials of life" may rise to persecution.

Id. at 171 (emphasis in original)(quoting H.R. Rep. No. 95-1452, as
Kadri maintains that he has a well-founded fear of future 5

persecution in Indonesia on account of his sexual orientation.

Because we remand on other grounds, we do not reach the issue of

whether Kadri has a well-founded fear of future persecution at this

time.

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reprinted in 1978 U.S.C.C.A.N. 4700, 4704, available at 1978 WL

8575).

In light of the intervening decision in In re T-Z-, and

because we are unable to determine what standard the agency used in

rejecting Kadri's economic persecution claim, we remand the case to

the BIA to instruct the IJ to evaluate Kadri's case under the In re

T-Z- standard. See Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d

281, 295 (2d Cir. 2007). Based on his testimony and the evidence

he submitted, Kadri may be able to sustain a claim for economic

persecution. However, that is not the issue before us. Nor do we

need to address the merits of whether the BIA's new standard, under

In re T-Z-, survives Chevron review.5

III. Conclusion

For the reasons stated above, we grant Kadri's petition

for review, and the case is remanded for further proceedings

consistent with this opinion. The BIA's order of removal is

vacated.

It is so ordered.