* The Honorable William K. Sessions III, of the United States District Court for the District of

Vermont, sitting by desig nation. 1 05-6185-ag Vumi v. Gonzales 1 UNITED STATE S COURT OF APPEA LS 2 3 FOR THE SEC OND CIRC UIT 4

____________________________________ 5 6 August Term, 2006 7 8 (Argued: March 15, 2007 Decide d: August 31, 2007) 9 10 Docket No. 05-6185-ag 11

____________________________________ 12 13 LUL UENGI SA CHANTA

L VUM I 14 15 Petitioner , 16 17 v. 18 19 ALBERTO GONZ ALES 20 21 Respondent
. 22

____________________________________ 23 24 Before: CALAB RESI, WESLEY, Circuit Judges , SESSIONS, District Judge
. * 25

____________________________________ 26 27 On petition for review of an order of the B oard of Immigra tion Appeals (“BIA”). The petition for 28 review is GRANTED, the order of the BI A is VACATED, and the case is REMANDED to the 29 BIA for fur ther pro ceeding s. 30

____________________________________ 31 32 JON BAUER, Asylum and Human Rig hts Clinic, 33 University of Connecticut School of L aw, 34 Hartford, CT, for Petitioner
. 35 36 NORA R. DANNEHY, Assistant U.S. Attorney , for 37 KEVIN J. O’CONNOR, U.S. Attorney for 382 the District of Connecticut, New Haven, CT, 1 for Respondent
. 2 3 DEBORAH ANKER, Harvard I mmigration and 4 Refugee Clinic (Nancy Kelly and John 5 Willshire-Carrera on the brief ), Boston, MA, 6 for Amicus Curiae , Harvard Immig ration 7 and Refugee Clinical Program, Women 8 Refuge es Project. 9 10

____________________________________ 11 12
CALABRESI , Circuit Judge : 13 InSeptembe r 2001, pe

titioner L ulueng isa Chanta

l Vumi (“V

umi”), a native a nd citiz en of 14 the Democratic Rep ublic of Congo (“DRC”), applied for asy lum and withholding of removal 15 under

the Immigration and Na

t ionality Act (“INA” ), 8 U.S.C. §§ 1158, 1231, and for relief under 16 the United Na

tions Conve

ntion Ag ainst Tor

ture and Other Cr

uel, I nhuma n or Deg rading 17 Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. 18 She al le ge d t ha t s he ha d b ee n t wi ce ar re st ed , i nt er ro ga te d, an d m is tr ea te d b y th e D RC mi li ta ry, 19 whichsuspected her ex-husband of inv o lvement in the Januar

y 20 01 assass ination of

then-DRC 20 pr esid ent

Laurent Kabila. On December 10, 2004, an I mmigration Judge (“IJ”) g ranted Vumi’s 21 claim

for CAT relief but denied her applications for asy lum and withholding, find ing th at 22 petition er

had fail ed to demonstrate t hat the ha

rm she suf

fered was on acc ount of a prote cte d 23 ground

under the INA. The B oard of Immigra tion Appeals (“BIA” or “the Board”) affirmed this 24 determination

on the same basis. Petitione r subsequently soug ht our review of the BI A’s 25 decision. 26 Befor e us, petitioner cha llenge s the ag ency ’s deter mination that she did

not suffe r 27 persecution

on account of her membership in a particular socia l group o r due to po li tical opinion 283

imputed to her. We

conclude

that the I

J and BI A erred in evaluating V

umi’ s claim, and we 1 remand

to give the Board the opportunity to d ete rmine properly, in the f irst instance, the scope of 2 these protected grounds for asy lum and withholding relief. 3 4 I. B ACKGROUND 5 Petitioner

fled her native country for the United Stat e s an d ar riv ed i n J ul y 200 1. In 6 September

2001, Vumi filed an I-589 application for asylum, withholding of re moval, and CAT 7
r elie f. Following an interview with an asy lum officer in January 2002, Vumi’s c ase was referred 8 to an IJ. After hearing her testify and r

eview ing her documentary submissions, the I J accepted 9 Vumi’s testimony as true. 10 Vum i testified that she married Charles Kay itaba, a Rwandan citizen and ethnic Tut si, i n 11 1991. Though the c o uple separated in 1994, they both remained in Kinshasa in the DRC and 12 stayed

in con tact because they

had a child together. I

n 1997, Kayitaba be gan work as a chauffe u r 13 and

bo dyg ua rd fo r t he n- pr es id en t La ur en t K ab il a. Be ca us e h e w as on du ty o n t he da y K abi la was 14 assassinated, January 16, 2001, K

ay ita ba was suspected of involvement in the assassination. He 15 fled

to Rwa nda and cal led Vum i t o i nfo rm h er o f hi s l oca ti on. In Febr uary 2001, a g

roup of 16 military

soldiers entere d Vumi’s ho use to search for Kay itaba, demanded that she reveal 17 informationabout him and about the assassination, and looted the house. In mid-March 2001, 18 the military

soldiers r

eturned to Vumi ’s home. When Vumi refused to reveal Kay itaba’s 19 location, they arr ested her. 20 Vumi was detained for on e week in a dark cell in which soldiers tied her hands behind 21 her

back, cut her hair, shined bright lights in her e yes, and hi t her whenever she provided 22 unsatisfactory

answer s to th eir repeated demands for information about Ka yitaba’s loca

tion. 234

Ev en tu al ly, a human r

ights or ganiz ation of w hich

Vumi was a membe

r, L a Voix des Sa

ns Voi x, 1
was able to secure her release. Vumi subsequently related the news of her detention to Kay itaba, 2 who advised her to leave the DRC. She received assistanc e in o btaining a passpor

t and U.S. v

isa 3 froma friend in the De partm en t of Social Services and scheduled a mid-July 2001 flight out of 4 the DRC. 5 InJune 2001, however, when she was retu rning from work, Vumi was again c aptured by 6 soldiers who forced her into a military truck and brough

t h er to a military ca

mp called Kokolo. 7 For

two weeks, Vumi was kept in a di rty , mosquito -infested cell with no furniture or toilets, fed 8 mi ni ma ll y, and

bea ten with whips. The soldiers subjected her to repeated, two-hour long 9 interrogations to d etermine Kay itaba’s “destination, and they also wanted [her] to tell them 10 something about Mr. Laurent [Kabila’s] assassination.” Vumi refused to r eveal that Kay

itaba 11
was in Rwanda because she feared tha t “they [would] keep on asking [her] some questions for 12 which[she] didn’t have an answer.” Vum i also did not reveal that Kay itaba was a Rwandan 13 citizen, in stead sta ting tha t he was f rom the Ki

vu Provinc e of the D RC. 14 After

Vumi refused to perform sexual favors for a soldier in r eturn for her release from 15 pr i son, the soldie r fondle d her, str

uggle d with her

as she re sisted, a

nd urinat ed on her . His 16 attempt

to rape her was unsucc essful, but he returned another day, repeated his offer, and on her 17 refusa

l, did, in fa

ct, rape her. When

she deve loped a f

ever an d noseble eds, Vumi

was transferred 18 fromher cell to the military camp hospital where one of the nurses recognized Vumi from church 19 and

helped her to escape. Vumi then went into hiding with an a unt. Vumi’s friend in the 20 Department

of Social

Service s again

se cured her a false passport and visa, and Vumi left the 21 DRC a t the end of July 2001. When Vumi spoke with her family by telephone, they

informed h e r 22 that the military continued to look for her at her house. 235

The IJ foun

d that Vumi ’s bruta

l treatme nt by the militar

y un questiona bly amounted

to 1 persecution, but that she failed to demonstrate that the harm she suffered was on ac count of a 2 protected

ground. First, the IJ concluded that the harm was not inflicted due to membership in a 3 particular

social g roup bec ause “r

elatives of assas sination su spects” do not nece ssarily comprise 4
a group of persons with similar backgrounds, habits, or soc ial status; the families of assassination 5 suspects

do not hav e any

relation to each other; and th is gr oup is not “ sufficie ntly recog nizable 6 and

discree t [sic] as vie

wed by socie ty in general.” Second, the I J did not find that the harm was 7 inflicted, in whole or in part, on account of imputed political opinion. Instead, the I J held that 8 [F]rankly . . . t he go vernme nt’s inter rogati on of [Vumi] would be qu ite 9 reas on able in light of the fact that her husband was a body guard of Kabila, 10 was a Rwandan, and a Tutsi, a nd had fled the area. Clearly, the 11 government had a very

rational reason to intervi ew or inter rog ate [her]. 12 Also, the government may well have be e n annoyed a t [Vumi] because she 13 was not telling them the truth. 14 Fi na ll y, the IJ also concluded that any persecution that Vumi might face in the future would not 15 be on account of a protected ground. A s a re sult, o n each of these bases, the I J denied Vumi’s 16 applica

tion for a syl

um and with

holding o f remova

l. 17 Findi ng, however, a “sig nif icant like lihood” that Vumi wo uld be ar rested a nd tortur ed in 18 light

of her pa st mistrea

tment and the DRC’ s current

human rights record, the I J granted Vumi’s 19 applicationfor CAT relief, because such relief does not require a nexus to a pr otected ground. In 20 January

2005, the IJ denied Vumi’s motion for reconsideration of he r asylum and withho ld ing 21 claims. 22 The BIA adopted a nd affirmed the IJ’s decision deny ing asylum an

d withholdin g re li ef. It 23 stated

that Vumi’s “alleged

social group, defined as ‘family member[s] of a person

who served as 24
a Kabila bodyg

uard at the time of the assassination[,]’ [did] not qu alify as a particular social 25 group.” The Boa rd noted t hat Vumi made no claim of family relationship with the relatives of 261 This case was originally docketed on our Non-Argument Calendar (“NAC”). See Interim L ocal Rule § 0.29. The Government, to its credit, consented to a remand for many of the reasons discussed below. The NAC panel, however, believing that the case warranted decision by opinion rather than by summary order, r eferr ed the ca se to the Re gular A rgumen t Panel. 6 other assassination suspects, and that the “general c haract eris tic of the

purporte d group

[was] 1 insufficient

to constitute

a ‘particular social group.’” In addition, noting the absence of evidence 2 th at Vumi was “ever questioned about her political activities or views, or [about] her affiliation 3 with

her former employ

er La Voi x des Sans Voix,” the BIA found “insufficient direct or 4 circumstantial evidenc e” that her pers ecution “ was mo tiva ted, at least in part, by a n actual or 5 imputed” political opinion. 6 We vacat

e the dec ision of the

BIA and rema nd the ca se for f

urther proceed

ings. 7
II. D ISCU SSI ON 1 8 We review the decision of the IJ as supplemented by the BI A. See Yu Yin Yang v. 9 Gonzales , 431 F.3d 84, 85 (2d Cir. 2005). Questions of law and the app lication o f law to 10 undisputed

fact are examined de novo
. See Secaida-Rosa les v. INS , 331 F.3d 297, 307 (2d Cir. 11 2003). Where a question of interpretation of an ambiguous statutory term is involved, however, 12
we give deference to the B IA’s reasonable interpretation. See INS v . Aguir re- Aguirre , 526 U.S. 13 415, 424 ( 1999). We review the agency ’s factual findings under the substantial evidence 14 standar

d. 8 U.S.C. § 1252(b)(

4)(B); see also INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992). 15 To be elig ible for a syl um relief , an appli cant must show that she has su ffer ed past 16 persec ution “on account of race, religion, nationality, membership in a particular social group, or 17 pol itical opinion,” or that she has a well-founded fear of future persecution on account of one of 18 thesegrounds. See 8 U.S.C. § 1101(a)(42). “An alien’s fea r may be we l l-founde d even if there is 19 only

a slight, though discernible, chance of persecution.” Diallo v . INS , 2 32 F.3d 279, 284 (2d 207

Cir. 2000) (citi ng INS v. Cardoza-Fonseca , 480 U.S. 421, 431 (1987)). An applicant who 1 satisfies the higher burden of demonstrating a clear probability

of future pers ecution on account 2 of one of the five grounds is automatically entitled to with holding of removal under 8 U.S.C. § 3 1231(b)(3). Diallo , 232 F.3d at 284-85. 4 We have no reason to doubt that the IJ and BI A held that Vumi’s treatment co nstituted 5 persecution. Accordingly , the key issu e on appeal is whether Vumi’s persecution was on ac count 6
o f either of two grounds for asy lum and withholding relief: her membership in a particular socia l 7 group or her political opinion. 8
(1) Membership in a Particular

Social Gro up 9 The BIA ’s se mina l decision in Matter of Acosta defines the standard for what constitutes 10
a parti cular social group. 19 I. & N. Dec . 211, 233-34 (BIA 1985), overruled in part on other 11 grounds by Matter of Mogharrabi , 19 I. & N. Dec. 439 (BI A 1987). Holding that

Salva dora n taxi 12 drivers are not cognizable as a particular soc ial group because they can chan ge professions, the 13 BIA in Matter of Acosta set forth the following standard: 14 [W]e interpret the phrase “persecution on ac count of mem bership in a 15 particu lar so cial group” to mean persecution that is directe d toward an 16 individual who is a member of a group of persons all of whom shar e a 17 common, immutable characte rist ic. The shared characteristic might be an 18 innate one suchas . . . kinship ties , or in some circumst ances i t might b e a 19 shared past expe

rie nc e such as former military leadership or land 20 ownership. The particular kind of group char acteristic that will qualify
. . . 21 remai n s to be determined on a case-by -case basis. However, whatever the 22 common characte ri stic that defines the group, it must be one that the 23 members of the grou

p either cannot chan ge , or should no t be requi red to 24 changebecause it is fundamental to their individual ident i ties or 25 conscie nces. 26 27 Id
. (emphasis added). Our court endorsed this standard in Hong Ying Gao v. Gonzales , 440 F.3d 28 62, 67-70 (2d Cir. 2006). We conclude in the instant case that theIJ a nd BI A erred , both in the ir 298

incomplete characterization of Vumi’s proposed “particular soc ial gro

up” and in

their fa ilure to 1 evaluate this claim according to the Acosta standard as we have applied it in Gao
. 2 (a) 3 We begi n with the BIA’s failure to evaluate fully Vumi’s soc ial group claim. She 4 origina

lly cl ai me d b ef

or e t he ag en cy t hat she w as p ersecu ted on ac count of her membe rship in 5 two particular social groups. Both these g roups derive from her marital relat ionship to Ch arles 6 Kayitaba, but in fact they are quit e distinct . The first group is “her h usband’s p artic ular family.” 7 The second group c onsists of t he “fam ily members o f the pre sidential body guard s and sec

urity 8 and

military officers who had been serving at the time of the Kabila a ssassination .” It is the first 9 of these

that she presses on appea l. 10 The IJ expressly noted petitioner’s contention that her nuclear family forms one basis of 11 her

group claim because “her familiar [sic] relationship to her husband is something that she does 12 not have the power in which to change.” And in her brief to t

he BI A, the petitioner c le arl y 13 stat ed: “The pa

rti cular social group that Ms. Vumi is rely ing on [is] membership in the family of 14 a person suspected of participating in the Laurent Kabila assassination . . . .”. 15 Despite

Vumi’s unc ontested a sserti on o f this c laim, a nd its se eming r

eco gni tion by the IJ , 16 neither

the IJ nor the BIA

consid ered whether Vu

mi’s membe

rship in Ka

yita ba’s nuc lear fa

mily 17 implicated

the “particular social group” g round of p rot ection under the INA. The IJ addressed, 18 and summarily rejec ted, only the

secon d of Vu mi’s socia l-grou p clai ms, s tati ng: “[I]t appears that 19 there is not one s pecific family involved i

n this prop osed gr

oup, but a number o

f families that 20 really

do not hav

e any rel ationship to

eac h other ex

cept for th e fact tha t their fam ily memb ers 21 have been assa

ssination su

spects .” (emphasis added). On this bas is the IJ concluded that Vumi’s 229

proposed group is not “sufficiently recognizable and

discreet [sic] as viewed by society in general 1 [to be] . . . a particular social group.” 2 T h e B IA also addressed only Vumi’s relationship to the families of other assassination 3 suspects in examining her particular social group member ship. It too completely

ignored her 4 individual family relationship to Kay itaba. Remarkably , the Boa rd concl u ded that Vumi’s 5 claimed

status as the “family membe r of a person who ser

ved as a Kabila body

guard at the time 6 of the assassination” failed to allege any “indicat[ion] that she shares a familial or clan 7 relation ship with the ot her memb ers of he

r define d group , thus the re is no cl a im of family 8

mem bership .” (emphas is added) . In li ght of the Boar d’s own ob servation that, und er its 9 preced

ent, “family

membersh

ip can constitute me

mbership in a part

icular so cia l group for 10 purposes of asylum,” this wa s clear error. 11 The BIA ha s long recognized that “kinship ties” may form a cognizable shared 12 charac

teristic for a particular social group. See, e .g., Aco sta , 19 I. & N. Dec . at 233. And more 13
re ce nt ly, the BIA has dee med the family or

clan to be a “part

icular so cial gr

oup” whe

n its 14 members ar e r ec og ni za bl e b y vi rt ue of sh ar ed im mu ta bl e c ha ra ct er is ti cs “i ne xt ri ca bl y l i nked to 15 family

ties.” Matter of H- , 21 I. & N. Dec . 337, 342 (BIA 1996). While the BI A ha s stat ed that it 16 has not ruled “ categorically that m em bership in any cla n would suffice,” In re C-A- , 23 I. & N. 17 Dec. 951, 959 (BIA 2006)(emphas is added) , the Boa rd has he ld unambig

uously that membe

rship 18 in a n uc le ar fa mi ly may substantiate a social-group basis of persec ution. 19 But

if such membership may support a

social g roup gr oundin g of persecution, it must be 20 considered

by the ag ency. And it is bey ond cavil that the agency failed to address this part of 21 Vumi’s claim. It fo llows tha t the BI A’s misconstruction of Vumi’ s appeal was esse ntial to its 22 finding that the “ general characteristic of the purported g roup . . . insufficient to constitute a 2310

‘particular

social g roup.’” (citi ng Gomez v. I

NS , 947 F.2d 660, 664 (2d Cir. 1991)). And that, by 1 itself, would require that we grant the petition and re mand the case to the BI

A. 2 3 (b) 4 The IJ and BI A decisions did consider Vumi’s claim that she was persecuted on ac count 5 of her membership in a second particular social g roup: that of family members of assassination 6 suspects. Since Vumi has not pressed that claim on appeal, we do not here r eview it. 7 In the interests of judicial economy , however, we note that very recently – a

nd since the 8 BIA’s dec ision in Vumi’s case – our Court has examined the general issues involved in that 9 claim. Koudriachova v. Gonzales , 490 F.3d 255, 261-63 (2d Cir. 2007). In Koudriachova , the 10 Court discussed the proper interpretation of our decision in Gomez , 947 F.2d at 664, the relation 11 between Gomez

and the BIA’s r

ulings in Acosta , 19 I. & N. Dec . at 233-34, and In Re C-A -, 2 3 I. 12 & N. Dec. at 960, and the meaning of Gomez

in light our decision in Hong Ying Gao v. Gonzales , 13 440 F.3d a

t 69. On re

mand, if V

umi opts to r

eturn to that claim, the BI A may wish to re

view its 14 decision in view of Koudriachova
. 15 16 * * * 17 Becau se the agency failed to c onsi der whether Vumi ’s individua l family constitute s a 18 particular

so cial group und er the INA, we must remand this case to the BIA so that it may 19 evaluat

e the e vidence p roperly a nd make the initial determination. See INS v . Ventura , 537 U.S. 20 12, 17 (2002) (per curi am) (“General ly speaking , a court of appeals should remand a case to an 21 agency

for dec ision of a

matter that st atutes place primaril y in agenc y ha nds.”); see also Thomas 22

v. Gonzales , 126 S . Ct. 1613, 1615 (2006) (“The agency has not yet considere d whether 2311

[petitioner]’s family

present s the kind o f ‘kinship ties’ tha t constit ute a ‘part icular social group.’ 1 The matter requires determining the facts and deciding whether the facts as f ound fall within a 2 statutory

term.”) ; see also Ucelo-Gomez , 464 F.3d at 168. 3 It

bears underscoring that the BI A must apply the corre ct standard on reman d to Vumi’s 4 “nuclear family

” claim, that is, it must do so in light of Koudriachova , 490 F.3d at 261-63. 5
(2) Imputed Political Opinion 6 Vumi als o assert s that she was persecuted on account of an a nti-Kabila political opinion 7 whichthe DRC so ldi ers imputed to her based on Kay itaba’s suspected involvement in the 8 assassinationof

Laur ent Kabli a. “[A]n imp uted politi cal opini on, whether corr ectly or incor rectly 9 attributed, can constitute a ground of political persecu tion wi thin the meaning of the Immig ration 10 and

Nationality Act.” Chun Gao v. Go n zales , 424 F.3d 122, 129 (2d Cir. 2005) (internal 11 alterations and quotations omitted). 12 It

is, more over, well-established that Vumi “cannot be expected to provide direc t proof of 13 [a] persecutor[’s] motives,” INS v. Elias-Zacarias , 502 U.S. 478, 483 (1992), and that the 14 protected

ground under the I

NA need not be the sole motive: “The plain m eanin g of the phrase 15 ‘persecution

on account of the victim’s political opinion,’ does not m ean persecution solely on 16 account

of the victim’s political opinion.” Osorio v . INS , 18 F. 3d 1017, 1028 (2d Cir. 1994). We 17 find

that in re jecti n g any

nexus between Vumi’s persecution and imputed political opinion, the 18 BIA and the I

J “examined n

either the po litical dimension” o f the milita ry ’s treat ment of Vu

mi 19 nor its political context in the DRC, as our cases require. Id . at 1029. 20 21 2212 (a) 1 First, we consi der the p olitical c ontext in whi ch Vumi’s persec uti on took place. The 2 agency

deemed plausibly re asonable the DRC’s law-enforcement int erest in investigating the 3 assassinationof the former President. But in reaching this conclusion, the BIA and IJ fai led to 4 examine the political context or country conditions in DRC. I n Matter of I

zatula , 20 I. & N. Dec
. 5 149 (BIA 1990 ), the Board r equir ed con sider ation of whet her “th e exi stin g p olitical s ituation in 6 [pe titioner’s country was] differ ent from that of countries where citizens have an opportun it y t o 7 seek

change in the political structure of the g overnment via peaceful processes.” Id. at 154. As a 8 result, the Iz atula Board reversed an I J’s conclusion that political opinion was not a valid ground 9 of asylum for an individual who wa s arrested and tortured by A fghan government offic ials based 10
onsuspicion that he provided supplies to mujahedin en gaged i n armed rebellion against the 11 Afghan government. 12 In doing so, the BI A stated: 13 [W]e find no basis in the record to conclude, as the immigration judge did, 14 that

any punishment which the Af ghan Go vernm ent might impose on the 15 applicant on account of his support for the mujahedin would be an 16 exampleof a legitimate and internationally recognized government taking 17 actionto defend itself from an armed rebellion. The Coun try Reports 18 explai n that in Afghanistan, “[c]itizens have neither the right nor the 19 ability peacefully

to change their governme nt. Afghanistan is a totalitarian 20 stateunder the cont rol of the [Pe ople ’s De

mocr atic Party of Af gha nista n], 21 whichis kept in power by the Soviet Union.” We accordingly find the 22 existing political s ituation in A fghanista n to be different from that of 23 countries where citizens have an opportunity to seek c hange in the 24 political structure of the government via peaceful processes. 25 Id. at 153 -54 (em phasi s adde d) (ci tati ons om itte d) (ci ting Dwomoh v. Sava , 696 F. Supp. 970, 26 979 (S.D.N.Y. 1988) (“[The] general rule [that] prosecution for an attempt to overthr ow a 27 lawfully

constitute d gover

nment doe s not const

itute persecution

. . . [is not] ap

plicable in 28 countries where a coup is the only means through which a chang e in the political regime can be 2913

effected.”)). 1 Moreover, the Board recently affirmed this framework for examining imputed political 2 opinion claims, stating in In re S-K- , 23 I . & N. Dec. 936, 940-41 (BI A 2006), that in countries 3 where a coup is the only mea ns of effe ctuating

political chang e, prose cution for attempt ing to 4 overthrow the government is a form of political persecution. 5 No such evaluation can be discerned in the instant case. Mor eover, the record

be fore us 6 could

be read to suppo rt the pr oposi tion that t he Con golese regime did n ot all ow peac eful ch ange 7 and, accordingly , constituted a polit ical context different from those wherein anti-gove rnment 8 efforts

might pr

ovide a va

li d basis for robust law-enforcement responses. Unde r the 9 circumst

ances, the fact that neither the IJ nor the BIA addressed that propos ition, and hence 10 reached

no conclusion on whether “there is [a] basis in the record to conclude that any 11 punishmentimposed by the [] Government would be a legitimate exercise o f so vereign 12 authority,” Matter of I zatula , 20 I. & N. D ec. at 154, requires us to remand so that the ag ency 13 may make that e

valuation in the first instance. See Thomas , 126 S. Ct. at 1615. 14 15 (b) 16 Ad ditionally, the IJ and BI A did not a

dequate ly ta

ke into ac count the

potentia lly d eeply 17 political nature of Vumi’s persecution. See Osor io , 18 F.3d at 1028. In Matter of S-P- , t he B IA 18 hel d

that persecution

based on

political opinion is e stablishe d when the re is “dir

ect o r 19 circumstantial evidence from which it is reasonable to bel ieve tha t those who harmed the 20 appl icant

were in part moti

vated by an assumpt

ion that [he

r] political views were

antithetic

al to 21 th o se of the gov ernment
. ” 21 I. & N. De c. 486, 494 (BIA 1996) (emphasis added). The S-P22 petitioner

had been captur edby the Sri L ankan military while wor king as a welder at a camp run 2314

by the Tamil Tig ers, and

though the petitioner’s inte rroga tors had made no dir

ect state ments 1 about

his politic al views, they had dema

nded information a

bout the id

entit y a nd locati on of 2 members of the Tamil Tigers. Id. at 487-88. The Board recog nized that it is “not an easy task” to 3 eval uate an applicant’s claim that the government harme d him based on his imputed political 4 views, rather than because of a “de sire to obtain intelligence information” o r prosecute legal 5 violations
. Id. at 494. Nevertheless, the BI A continued, “a combination o f . . . motive s” could 6 suffice, because “prosecution for an offe nse may be a pretex t for punish ing an individual f or hi s 7 political opinion . . . .” Id . (emphasis added). 8 In S-P , t he BIA ap pr ov ed a “ to ta li ty o f the c ircumstances” analysis for discerning 9 pers ecutory

motives, and identified the following nonexhaustive list of factors that may info r m 10 the anal

ysi s: 11 1. Indications in the particular ca se that the abuse was directed toward 12 modifying or punishing opinion rather than conduct (e.g., sta tements or 13 actions by the perpe trators or abuse

out of pro

portion to nonpolitical ends); 14 2. Treatment of o ther s in the population who might be confronted by 15 gover nment ag ents in simi lar circ umstance s; 16 3
. Conf ormity to procedure s for criminal prosecution or military law 17 including developi ng inter national norms re gardin

g the la w of war ; 18 4. The extent to which a

ntiterrorism laws a

re defi ned and a

pplied to 19 suppress political opinion as well as illegal conduct (e.g., an a ct may 20 b roadly p rohibit “disruptive” activities to permit application to peaceful as 21 well as violent expressions of views); 22 5. The extent to which su spected

politic al opponent s are sub jected to 23 arbitrary arrest, detention, and abuse. 24 Id. 25 Inthe case before us, the I J and BI A did not c onsider t

he potent ia lly pol itical nature of 26 Kayitaba’ s suspected crime and the significance of the interrogation’s scope that u nquestionably 27 far

e xcee ded the bo

unds of le gitimate

questioni

ng. I nstead, t he age ncy evaluat ed almost 28 exclusive ly

whether the Cong olese military’s detention, investig ation, and torture of Vumi was 2915

driven by her membe

rship in La Voix des Sa

ns V oix and, on this basis, found “insufficient direct 1
or circumstantial evidence ” that Vu mi’s harm was “motivated, at least in part, by an actual or 2 imputed political context.” 3 The BIA

stated tha

t Vumi was n

ot “quest ioned abo

ut her pol itical a c tivities or views.” 4 But

it enti rely ig

nored testimony that, during Vumi’s military interrog ation and torture, the 5 soldiers insistently pressed her to re veal her ow

n knowledg e of

th e as sas si nat io n. In dee d, t he IJ 6 concluded

that the government was “truly interested in getting informati on from [Vumi]” not 7 only

regarding “her

husband’s wh erea

bouts” but also concerning “the assassination” itself. Yet 8 the agency

failed to address whether this and s imilar evidence proffered by Vumi was sufficient 9 to show that the soldiers deemed her refusal to provide information as r eflecting her own ant

i

10 Kabila political opinion. 11 Mor e over, the agency did not apply the reasona bleness standard for mixed-motive 12 analy

sis prescribed in Matter of S -P- . It fa iled to gauge whether the DRC’s interr ogation and 13 punishmentfor wha t Vumi cla

imed was a

“pol itically related a

ct,” namely c overing up for her 14 husband, was “disp roportionate to the crime, ” which w ould indic ate persecution on grou nds o f 15 political opin ion ra ther t han pr osecu tion or legi tima te law -enfor cement inter roga tion. 21 I. & N. 16 Dec
. at 493. The undisputed record of Vumi’s multiple arrests, extended detention, and tortur e 17 should have been considered by the IJ and BI

A in evaluating the extent to which the DR C 18 interro gations were inf ormed by military officia ls’ suspic ion of Vumi ’s anti-K abila opi nio n o r 19 actions. 20 In Matter of B- , the BI A examined

inthis way the p ossible mixed motives of the Afghan 21 secret

police in detaining and abusing the asylum applicant. The police imprisoned the petitioner 22 as part of a search for his brother, w hom the police believed to be a member of the mujahidin: 2316 The record indicates that the applicant was arr ested . . . not onl y to

obtain 1 informationfrom him about his brother, who was a muj ahidin member, 2 butalso because the discovery of muj ahidin fliers in his house led 3 a uthorities to suspect that the applicant and his father were involved wi t h 4 the mujahidin t oo. . . . The

applica nt’s detention and impris onment for his 5 support of the mujahidin constituted persecution on account of political 6 opinion. 7 Matter of B- , 21 I. & N. 66, 71 (B IA 1995); see also Matter of S-P- , 21 I. & N. Dec . at 498 8 (“Notably, the B oard in Matter of B- did not become entangled in the impossible task of 9 determining whether harm was inflicted bec ause of the applicant’s acts or because of his beliefs 10 underlying

those acts.”). 11 Inthe case before us, the I

J conducte d no such mi xed-mo tive analys i s based on the 12 content

of the interro gati on o r th e se ver it y of t he m eth ods use d by t he C ong ol ese mi li tar y. Th e IJ 13 acknowledged

that “whi le certa

inly , in this case, t he harm i

nflicted on the re spondent went well 14 beyond

the bound s of leg itimate qu estioning, the questioning itself appears to have been 15 legitimate.” It is c lear tha t the IJ’s reasoning fails to comport with the standard for evaluating 16 imputed political opinion claims as outlined in the BIA’s own opinion in Matter of S-P-
. 17 Fi na ll y, the IJ mentioned background mater ials indicating the Congolese govern men t 18 practice in which “ members, or family

members, or wives o f assass inati on su spects have been or 19
were arrested by

the gov ernment , ” and noted that “[a] number of female defendants appear to be 20
ontrial pur

ely because they are re lated to su spects in th e assas sination.” The State Department 21 country

report f rom 2001, t

he y ear in wh

ich Vumi a

pplied for relief

, details a

t length the 22 Congole se gover nment’s h

uman rig hts record, and, in partic ular, its t reatm ent o f detainees who 23
were percei

ved to be p olitic al opponents. Matter of S-P- relied on just these types of c ountry 24 report

finding s in evalu

ating imp uted politi cal opi nion. But the age ncy wholly failed to apply this 25 framework in the instant case. 2617 1 * * * 2 For

all these reasons, we must remand Vu mi’s claim of imputed political opinion to the 3 BIA so that it can p roperly exami ne that allegation in light of the age ncy’s own e stablished 4 standar

ds for mixed

motive cla

ims. 5

III. C ONCLUSI ON 6 We vacate and reman d to the BI A for further evaluation of the case consistent with the 7 proper s tandard s for both social g roup and imputed po litical op inion persecution claims. 8 9