Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric. H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

08-0034-ag

Sy v. Holder

BIA

Abrams, IJ

A098 580 859

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 11 day of March, two thousand ten. th

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

BARRINGTON D. PARKER,

 Circuit Judges.

_______________________________________

NDEYE HAMATH SY,

Petitioner, 

 v. 08-0034-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES *

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Ephraim Tahir Mella, Philadelphia,

PA.
2

FOR RESPONDENT: Gregory G. Katsas, Acting Assistant

Attorney General; Michelle Gorden

Latour, Assistant Director; Matt A.

Crapo, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, DC

UPON DUE CONSIDERATION of this petition for review of a

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

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

is GRANTED.

Ndeye Hamath Sy, a native and citizen of Mauritania,

seeks review of a November 29, 2007, order of the BIA

affirming the September 15, 2005, decision of Immigration

Judge (“IJ”) Steven Abrams, which denied her application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Ndeye Hamath Sy,

No. A098 580 859 (B.I.A. Nov. 29, 2007), aff’g No. A098 580

859 (Immig. Ct. N.Y. City Sept. 15, 2005). We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA. See

Secaida-Rosales v. I.N.S., 331 F.3d 297, 308 (2d Cir.2003),

overruled on other grounds by Xiu Xia Lin v. Mukasey, 534
3

F.3d 162 (2d Cir. 2008). Because neither the IJ nor the BIA

made an explicit credibility determination, we assume Sy’s

credibility for purposes of our analysis. See Yan Chen v.

Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). The

applicable standards of review are well-established. See 8

U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep't of

Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

Sy argues that the agency erred in finding that she

failed to demonstrate that the mistreatment she suffered

bore a sufficient nexus to a protected ground. See 8 U.S.C.

§ 1101(a)(42). In support of that argument, she cites to

country conditions evidence in the record, including the

2004 State Department Country Report on Mauritania, which

indicates that racial tension and discrimination between

White Moors and Black Africans continues to exist in

Mauritania and that, although slavery is officially

abolished, the practice of involuntary servitude occurs with

the acquiescence of the government. Against that backdrop,

Sy claimed that after she, a black woman, married a white

man, his family treated her as a slave because of her race. 

She claimed that the situation grew worse when her husband

left for the United States, and culminated when her mother-
4

in-law falsely accused her of assaulting her and stealing

her jewelry. As a result of those false charges, Sy was

arrested and detained for ten days. During her detention,

police beat her, using racial epithets as they did so. Sy

further claimed that police put cigarettes out on her lips

and tongue. Despite these claims, the IJ found that this

was simply a family dispute, unconnected to race, and that

Sy’s arrest and her subsequent mistreatment by the police

were purely the result of the charges that Sy’s mother-inlaw had filed. The BIA agreed, finding that even if the

treatment Sy endured amounted to persecution, there was no

evidence that it was on account of a protected ground.

Our prior precedent does not support the agency’s

conclusions. Both this Court and the BIA have recognized

that, because “‘prosecution for an offense may be a pretext

for punishing an individual for his political opinion,’”

“‘a combination of . . . motives’ [can] suffice” to

establish persecution due to a protected ground. Vumi v.

Gonzales, 502 F.3d 150, 157 (2d. Cir. 2007) (quoting Matter

of S-P-, 21 I. & N. Dec. 486, 494 (BIA 1996)). Here, Sy’s

testimony strongly indicates that her persecutors were

motivated, at least in part, by racial animus. See Matter
5

of J-B-N- & S-M-, 24 I. & N. Dec. 208, 211 (BIA 2007)

(recognizing that, because “persecutors may have differing

motives for engaging in acts of persecution,” an applicant

need only produce evidence “from which it is reasonable to

believe that the harm was . . . motivated in part by an

actual or imputed protected ground.”) (alteration and

internal quotation marks omitted).

More significantly, the agency's finding that Sy's

mistreatment was solely the consequence of a criminal

investigation failed to properly take account of the record

evidence indicating that racial tension is prevalent in

Mauritanian society and that the government has largely

failed to eradicate racially-based persecution. See Vumi,

502 F.3d at 156-59 (rejecting the agency’s finding that

petitioner’s persecution bore no nexus to a protected ground

when the agency’s analysis failed to take into account the

overall political context in which the persecution took

place); Osorio v. I.N.S., 18 F.3d 1017, 1029 (2d Cir. 1994)

(“[B]y drawing the conclusion that the dispute between

Osorio and Guatemala was economic and not political, the BIA

ignored the political context of the dispute.”). Therefore,

we conclude that remand is necessary for the agency to do so

in the first instance. See Vumi, 502 F.3d at 159; see also
6

Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006). 

Finally, Sy does not meaningfully challenge the

agency’s denial of her CAT claim before this Court, waiving

that argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540,

541 n.1 (2d Cir. 2005).

 For the foregoing reasons, the petition for review is

GRANTED and the case REMANDED for further proceedings

consistent with this order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk