IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60697

SEALED PETITIONER, 

 Petitioner

v.

SEALED RESPONDENT, 

 Respondent

Petition for Review of an Order

of the Board of Immigration Appeals

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Petitioner, a native and citizen of Ethiopia, petitions for review of the 

decision of the Board of Immigration Appeals (“BIA”), upholding the 

Immigration Judge’s (“IJ”) denial of his application for asylum and withholding 

of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. 

§§ 1158 and 1231(b)(3). Petitioner arrived in the United States without a valid 

entry document. He then applied for asylum and withholding of removal under 

the INA, and protection under the Convention Against Torture (“CAT”). In the 

subsequent applications and hearings, Petitioner testified that he had been 

tortured by the Ethiopian government because it suspected he and his family 

members supported a terrorist organization called the Ogaden National 

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2016

Lyle W. Cayce

Clerk
No. 14-60697

Liberation Front (“ONLF”). The IJ denied relief because Petitioner did not 

show that he was persecuted on account of a protected ground as required by 

§§ 1158 and 1231(b)(3). However, the IJ withheld his removal under CAT. 

Because the IJ and the BIA did not consider several factors essential to 

determining whether one central reason for the Ethiopian government’s 

maltreatment of Petitioner was persecution on account of a protected ground, 

we remand for that consideration. 

I.

A.

The country of Ethiopia is divided into several regional states based on 

ethnic and linguistic distinctions. The Somali Regional State lies in the 

eastern part of the country and is inhabited largely by ethnic Somalis. There 

is a large clan of ethnic Somalis called the Ogaden who live mainly in five of 

the Somali Regional State’s nine zones, including Fik. The ONLF is an armed, 

violent, and fragmented separatist group that operates in the Somali Regional 

State and is primarily made up of members of the Ogaden clan. The ONLF 

interacts regularly with civilians, obtaining food and water from a network of 

civilian supporters in the towns and villages of the Ogaden area. In 2007, the 

ONLF attacked an oil installation, which resulted in the capture and death of 

seventy civilians and Chinese oil workers. In response to that attack, the 

Ethiopian government created the Liyu police force to carry out a 

counterinsurgency campaign in the Ogaden area. The ONLF is one of five 

groups designated as terrorist organizations by the Ethiopian government in 

June 2011.

Petitioner testified to the following. Petitioner’s father owned a grocery 

store in Fik, a city in which approximately 97% of the population belongs to 

the Ogaden clan. Petitioner and his family are members of the Ogaden clan. 

In January 2012, five armed members of the Liyu police force arrived at the 

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No. 14-60697

grocery store where Petitioner and his father were present. The Liyu officers 

accused Petitioner’s father of using proceeds from his store to support the 

ONLF. Petitioner’s father denied being an ONLF supporter, but the officers 

did not believe him. The officers punched, slapped, and kicked Petitioner’s 

father, and hit him with the butts of their rifles. They then arrested him, 

warning Petitioner to close the store and leave. Petitioner’s father was 

detained at a military camp in Fik for approximately six months without being 

criminally charged. At the end of the six months, he was killed. Officials at 

the military camp stated that they shot him during an escape attempt. When 

Petitioner asked why his father was being detained, he was only told that 

government officials had a “strong suspicion” that he was an ONLF supporter.

In August 2012, the Liyu police approached Petitioner’s maternal uncle, 

Abdi Yusuf Ali, while he was teaching school and asked Ali to join them in 

fighting the ONLF. Ali refused, stating that he was a teacher and had no 

military training. Ali was then arrested, and a week later, he was killed while 

in detention. When Ali’s father, Petitioner’s grandfather, went to the camp to 

find out why Ali had been killed, Petitioner’s grandfather was accused of being 

an ONLF supporter and was arrested. Petitioner’s grandfather was still in 

custody at the police station in Fik at the time of Petitioner’s asylum hearing 

in February 2014.

A year after his father’s killing, Petitioner obtained a permit from a city 

administrator allowing him to reopen his father’s grocery store. He worked at 

the grocery store for approximately one month before three armed Liyu 

policemen arrived in December 2012 and asked if Petitioner was continuing 

his father’s work of supporting the ONLF. Petitioner responded that he did 

not support the ONLF and wished only to support his family. In response, the 

officers beat him, arrested him, and brought him to the same military camp 

where his father and uncle had been taken.

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No. 14-60697

Petitioner was detained at the military camp for two months and ten 

days. During that time, two members of the Liyu police force interrogated and 

physically abused Petitioner approximately six times. The officers punched 

and slapped Petitioner, and kicked him with their boots. They also hit him 

with the butts of their rifles, leaving a scar on his forehead. They slashed his 

neck with a knife, burned toenails on each of his feet with a cigarette lighter, 

and pulled two toenails from his feet. While the officers were physically 

abusing Petitioner, they insisted he confess to being an ONLF supporter and 

give them names of other ONLF supporters in Fik. Petitioner was told that he 

would remain in custody until he agreed to cooperate with the Liyu police and 

act as a spy for them. Petitioner agreed and was released. However, he fled 

the region the next day. Petitioner is not a member of the ONLF, and he does 

not know any members of the ONLF.

B.

Petitioner arrived in the United States in August 2013 without a valid 

entry document. Upon arrival, he applied for admission in Brownsville, Texas,

and was issued a notice to appear for a charge of removability as an immigrant 

without a valid entry document at the time of his application for admission 

under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Following his appearance, the IJ ordered 

he be removed, and Petitioner subsequently filed an application for asylum and 

withholding of removal under the INA and withholding of removal under CAT. 

The IJ then conducted several hearings to determine Petitioner’s eligibility for 

relief. The IJ issued an oral decision, denying Petitioner asylum and 

withholding of removal under the INA, but granting him relief under CAT.

The IJ found that Petitioner had testified credibly and that he had 

presented corroborating evidence. He acknowledged Petitioner’s contention 

that the Ethiopian government’s actions against him were based (1) on a 

political opinion that the government imputed to him and (2) on his 

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No. 14-60697

membership in the particular social groups of the Ogaden tribe and of his 

family. The IJ assumed arguendo that the two claimed groups were particular 

social groups within the meaning of the INA and that Petitioner was a member 

of both groups. The IJ did not address whether Petitioner’s treatment rose to 

the level of persecution and instead focused on the reason for the government’s 

interest in Petitioner. He found that the sole reason the Ethiopian government 

took any action against Petitioner was because it was “attempting to suppress 

the violent activities of the ONLF and it believed, even if wrongly, that 

[Petitioner] was a financial supporter of the ONLF like his father was” and 

that Petitioner “knew supporters of the ONLF in Fik who[m] he could reveal 

to the government.” The IJ cited several cases from this circuit and the BIA 

stating that investigation of terrorism is not harm perpetrated on account of a 

protected ground for asylum purposes. The IJ then denied Petitioner’s 

applications for asylum and withholding of removal under the INA.

The IJ also considered Petitioner’s claim for protection under CAT. He 

noted that Petitioner had “suffered serious physical abuse by Ethiopian 

government agents,” that he had been released from prison only because he 

agreed to work as a government spy, and that he had fled Ethiopia as soon as 

he was released from prison. The IJ found that it was likely that the Ethiopian 

government would still be interested in Petitioner based on its belief that he is 

an ONLF supporter and that it was more likely than not that Petitioner would 

be tortured by the Ethiopian government no matter where in that country he 

tried to settle. The IJ thus ordered that Petitioner’s removal to Ethiopia be 

withheld pursuant to CAT. Petitioner timely appealed the denial of his 

application for asylum and withholding of removal under the INA.

On appeal, the BIA affirmed the IJ’s conclusions. In a one-page decision, 

a single member of the BIA found that the IJ had “correctly applied the case 

law regarding terrorism investigations.” It noted that the IJ had considered 

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No. 14-60697

Petitioner’s “argument that the government arrested and harmed him for 

reasons other than suspected terrorist support” and that the IJ had “concluded 

that investigation of [Petitioner’s] ties to ONLF was the only reason (i.e. there 

was no other reason, central or otherwise)” for his persecution. Finding no 

clear error in the IJ’s determination, the BIA concluded that Petitioner did not 

meet his burden of proof for asylum or withholding of removal under the INA. 

Petitioner timely sought review in this court. 

II.

A.

Generally, we review only the final decision of the BIA. Zhu v. Gonzales, 

493 F.3d 588, 593 (5th Cir. 2007). When, as in the present case, the BIA’s 

decision is affected by the IJ’s ruling, however, we also review the IJ’s decision. 

Id. We review the legal conclusions of the IJ and the BIA de novo, and we 

review their factual findings for substantial evidence. Majd v. Gonzales, 446 

F.3d 590, 594 (5th Cir. 2006). Under the substantial evidence standard, “the 

BIA’s finding is conclusive unless, based on the evidence presented in the 

record, any reasonable adjudicator would be compelled to conclude to the 

contrary.” Martinez-Martinez v. Holder, 769 F.3d 897, 899 (5th Cir. 2014).

B.

Petitioner challenges the IJ’s denial of his asylum application, arguing 

that the IJ made legal errors when reaching this conclusion and that 

substantial evidence did not support a finding that he failed to meet the 

requirements of 8 U.S.C. § 1158. Under § 1158(b)(1), the Attorney General has 

the discretion to grant asylum to refugees who meet certain requirements. “To 

establish that the applicant is a refugee within the meaning of 

[§ 1101(a)(42)(A)], the applicant must establish that race, religion, nationality, 

membership in a particular social group, or political opinion was or will be at 

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No. 14-60697

least one central reason for persecuting the applicant.”1 8 U.S.C. 

§ 1158(b)(1)(B)(i). “[A]lthough a statutorily protected ground need not be the 

only reason for harm, it cannot be incidental, tangential, superficial, or 

subordinate to another reason for harm.” Sharma v. Holder, 729 F.3d 407, 411 

(5th Cir. 2013) (alteration in original) (quoting Shaikh v. Holder, 588 F.3d 861, 

864 (5th Cir. 2009)).2 However, the BIA recognizes actionable mixed motive 

cases, where persecutors may have legitimate reasons for their actions, but an 

additional central reason for their actions is persecution on account of a 

protected category. See In Re S-P-, 21 I. & N. Dec. 486, 492 (BIA 1996).

Petitioner argues that the IJ erred in concluding that “the Ethiopian 

government took actions against the respondent only because it [was]

attempting to suppress the violent activities of the ONLF” and it believed that 

Petitioner was supporting the ONLF and knew other supporters that he could 

reveal to the government. Petitioner argues that there was not substantial 

evidence to support a finding that he was solely persecuted on account of the 

government’s investigation into the ONLF, because evidence supported that 

another central reason for the persecution was his ethnic or familial 

membership.3 Petitioner also asserts that persecution on account of a 

mistaken belief that he was a supporter of the ONLF is persecution on account 

of imputed political opinion. Finally, Petitioner argues that the IJ made a legal 

error by not considering several factors that suggest that the terrorism

investigation was pretext for persecution on account of another central reason.

1 The IJ and the BIA did not address whether Petitioner established a well-founded 

fear of persecution as required to be eligible for asylum. See Abdel-Masieh v. INS, 73 F.3d 

579, 583–84 (5th Cir. 1996). 

2 Congress passed the REAL ID Act in 2005 and clarified that “on account of” means

“one central reason for.” 8 U.S.C. § 1158(b)(1)(B)(i).

3 The IJ “assume[d] arguendo that both of these claimed groups are particular social 

groups within the meaning of the Act, and that [Petitioner was] a member of both of those 

groups.”

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No. 14-60697

Determining “[a] persecutor’s actual motive” when considering whether 

an alien is eligible for asylum is a factual finding. In re N-M-, 25 I&N Dec. 

526, 532 (BIA 2011). Therefore, we review for substantial evidence the IJ’s 

determination that the persecutor was solely motivated by a legitimate 

suspicion of Petitioner’s being an ONLF supporter. See Majd, 446 F.3d at 594.

“[W]e nevertheless may reverse a decision that was decided on the basis of an 

erroneous application of the law.” Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 

1997).

C.

The IJ and the BIA ultimately concluded that Petitioner was not 

persecuted on account of a protected ground because the Liyu police were solely 

investigating terrorism. As the BIA characterized it, “The [IJ] concluded that 

the harm respondent suffered was not persecution because it occurred during 

a terrorism investigation.” Importantly, the IJ fully credited Petitioner’s 

testimony, which included the assertions that the Liyu police suspects all 

Ogaden clan members of being ONLF members and that Petitioner does not 

support the ONLF and does not know any members of the ONLF.

As noted by the IJ, this court has frequently upheld the BIA’s conclusion 

that an alien was mistreated solely on account of a terrorist investigation. See

Mwembie v. Gonzalez, 443 F.3d 405, 414 (5th Cir. 2006); Ozdemir v. INS, 46 

F.3d 6, 8 (5th Cir. 1994); Perez v. INS, No.94-40491, 1995 WL 313962, at *1 

(5th Cir. May 5, 1995) (unpublished). However, in each of those cases, the 

record supported that the investigation into terrorism was legitimate, and

substantial evidence did not support that an additional central reason for the 

mistreatment was persecution on account of a protected ground. See also In re 

R-, 20 I. & N. Dec. 621, 624 (BIA 1992) (“[T]here is no indication that the police 

actions against the applicant extended beyond the investigation of and reaction 

against those thought–rightly or wrongly–to be militants seeking the violent 

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No. 14-60697

overthrow of the government.”). Moreover, this court has recognized that 

“excessive or arbitrary” punishment for criminal conduct can qualify as 

persecution. Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir. 1996).

The BIA recognizes a distinction between legitimate investigation and 

what is instead pretext for persecution. In cases where this distinction must 

be made, “it is not an easy task to evaluate an asylum applicant’s claim that 

harm was inflicted because of [a protected ground] rather than a desire to 

obtain intelligence information,” and “there may have been . . . a combination 

of these motives.” In re S-P-, 21 I&N Dec. at 493. In S-P-, the BIA listed

several factors for courts to consider when determining the motive of a 

persecutor:

1. Indications in the particular case that the abuse was 

directed toward modifying or punishing opinion rather than 

conduct . . . ;

2. Treatment of others in the population who might be 

confronted by government agents in similar circumstances;

3. Conformity to procedures for criminal prosecution or 

military law including developing international norms regarding 

the law of war;

4. The extent to which antiterrorism laws are defined and 

applied to suppress political opinion as well as illegal conduct . . . ;

5. The extent to which suspected political opponents are 

subjected to arbitrary arrest, detention, and abuse.

Id. at 494.4 In S-P-, the alien was detained in a prison for six months following 

accusations that he was involved in the ongoing conflict with a liberation group 

4 While S-P- specifically addressed whether the alien was persecuted on account of an 

imputed political opinion, “political opinion” could be replaced with any of the 

§ 1158(b)(1)(B)(i) protected grounds. Contrary to the Government’s position, the BIA has 

held that the REAL ID Act only altered how central the motive must be and not how the court 

determines what the persecutor’s motive was. In re J-B-N- & S-M-, 24 I&N Dec. 208, 212–

14 (BIA 2007) (citing S-P- with approval and noting that when Congress enacted the Act, it 

cited a Fifth Circuit mixed motive case, Girma v. INS, 283 F.3d 664 (5th Cir. 2002), with 

approval). This court has accepted the BIA’s interpretation of the REAL ID Act. Shaikh, 588 

F.3d at 864. It is in this context that we must read our statement in an unpublished decision: 

“[T]he ‘mixed motives’ doctrine was altered by the passage of the REAL ID Act, which 

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No. 14-60697

and a recent attack. Id. at 487. During that time, he was often tortured and 

threatened with death. Despite the facts that there was ongoing civil strife, 

the government accused the petitioner of being a member of a terrorist group, 

and the government questioned him about the identity and location of 

members of that group, the court noted that “the harm inflicted upon the 

applicant . . . went well beyond the bounds of legitimate questioning for 

intelligence gathering.” Id. at 495. Differentiating between persecution and a 

legitimate investigation, the BIA considered the length of the questioning, the 

nature of the questions, the harm suffered, and the broader context of the 

conflict. Id. When holding that the petitioner was persecuted on account of an 

imputed political opinion, the BIA also emphasized that young males of 

petitioner’s ethnicity were often targeted as suspects. Id. at 495. 

Despite the similarities to S-P-, in Petitioner’s case, the IJ did not 

consider that the investigation could have been pretext for persecution or that 

the investigators could have had multiple central motivations for their actions. 

The IJ also did not recognize any distinction between Petitioner’s case and the 

cases in which this court has affirmed findings that the sole motivation for the 

harm and detention was a legitimate investigation into criminal activity.

The IJ did not consider evidence which suggests that this terrorist 

investigation may have been pretext for persecution, despite the fact that the 

IJ credited Petitioner’s testimony. Petitioner testified that the Ethiopian 

government suspected all Ogaden clan members to be ONLF members, 

including business owners in Fik and anyone that did not support the 

government. The record also established that there are few judicial protections 

for those accused of being associated with the ONLF and that protections for 

amended a number of provisions of the Immigration and Nationality Act.” Haile v. Holder, 

496 F. App’x 459, 460–61 (5th Cir. 2012)

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No. 14-60697

those not charged with illegal conduct are often ignored. Petitioner was never 

criminally charged for illegally supporting the ONLF, but he was held in 

custody for two months. In addition, Petitioner’s uncle and father were both 

detained and killed, and petitioner’s grandfather remains detained, all without 

ever being charged for illegal conduct. There was also no evidence of a recent 

ONLF terrorist attack in Petitioner’s region. Had the IJ properly considered 

these factors, he may have concluded that the Liyu police in Fik typically acted 

without reasonable suspicion, beyond the bounds of clearly established laws, 

and not for the sole purpose of investigating illegal conduct. 

The IJ also did not consider that the Ethiopian government’s 

maltreatment of Petitioner went well beyond investigatory. Petitioner was 

accused of supporting the ONLF after he opened a grocery store that his father 

previously operated. Although the Liyu police originally suspected his father 

of supporting the ONLF through the store, Petitioner opened the store a year 

after his father’s execution. Petitioner operated the store for only a month 

before he was arrested, and the Liyu police directly asked him “if he wanted to 

go the same way his father went.” On this tenuous suspicion of support for a 

terrorist organization, Petitioner was detained for two months and violently 

tortured without ever being criminally charged. In addition, Petitioner was 

released only when he agreed to act as a spy for the government. Each of these 

factors distinguishes this case from previous cases where the record supported 

that the only central reason for the petitioner’s mistreatment was a legitimate 

investigation into terrorism or criminal activity. 

Contrastingly, in cases in which this court or the BIA has found a 

legitimate investigation to be the sole purpose of mistreatment, the alien was 

very closely linked to the terrorist group or criminal activity being

investigated. In addition, those cases often involved lesser periods of 

persecution and active terrorist activity. See Mwembie, 443 F.3d at 414 (alien 

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No. 14-60697

was in the building at the time of an assassination and considered a suspect 

for murder); Ozdemir, 46 F.3d at 7 (alien participated in an anti-government 

demonstration, numerous terrorist incidents had occurred in the area, and the 

alien was detained for only three days); Perez, 1995 WL 313962, at *1 (alien 

was only questioned once and was accused of being a member of the guerilla 

group and having knowledge about the leader).

Petitioner’s argument also finds support in a June 24, 2015 unpublished

BIA decision in which a three-judge panel discredited the Liyu police’s 

investigation into the ONLF. In that case, which Petitioner submitted to this 

court in a 28(j) letter, the BIA relied on S-P- and distinguished this court’s 

decisions noted above. The BIA considered the Liyu officers’ treatment of the 

petitioner and the petitioner’s relatives and the “brutal” campaign against 

anyone the Liyu police believed to be associated with the ONLF. Concluding 

that the petitioner was persecuted on account of imputed political opinion, the 

BIA noted that “there is evidence in the record that the government targets 

the Ogaden local population as suspected ONLF followers, and evidence that 

these suspected individuals are persecuted for their imputed anti-government 

political opinion.” This BIA decision supports our conclusion that the IJ must 

properly consider whether the very similar investigation in this case was only

motivated by a legitimate suspicion of Petitioner’s support of the ONLF.

Because the BIA did not consider whether the Liyu police’s investigation 

was legitimate or pretextual, the BIA concluded that Petitioner was not 

persecuted on account of a protected ground. The IJ erred by not conducting 

the mixed motive analysis described above, and the IJ’s reasoning cannot be 

reconciled with S-P- and other cases describing factors that should be 

considered when determining an alleged persecutor’s true motives. As a result, 

we remand for the BIA to examine the record “in light of the agency’s own 

established standards for mixed motive claims.” Vumi v. Gonzales, 502 F.3d 

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No. 14-60697

150, 159 (2d Cir. 2007) (directing the BIA to apply S-P-); see INS. v. Orlando 

Ventura, 537 U.S. 12, 17 (2002) (encouraging courts to “giv[e] the BIA the 

opportunity to address the matter in the first instance in light of its own 

expertise”); Diaz-Resendez v. INS, 960 F.2d 493, 498 (5th Cir. 1992); 

Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006) (“Thus, where, as 

here, the IJ misapplies the law in evaluating a request for asylum, the 

appropriate remedy is to remand so that the agency may apply the correct legal 

standard in the first instance.”); Hirpa v. Holder, 327 F. App’x 265, 268 (2d Cir. 

2009) (“Accordingly, because the agency failed to consider the political context 

of Hirpa’s alleged persecution, we remand to give the BIA the opportunity, in 

the first instance, to properly analyze Hirpa’s claim.”). 

Because the basis of the Liyu police’s maltreatment is unclear, on 

remand, the BIA should determine whether one central reason for the Liyu 

police’s maltreatment was on account of his political opinion, his ethnicity, or 

his family,5 Sharma, 729 F.3d at 411—especially given that three other 

members of Petitioner’s family were detained or killed before Petitioner and 

that the Liyu police’s belief that Petitioner was supporting the ONLF was 

mistaken. If the BIA concludes that Petitioner was persecuted on account of a 

protected ground, the BIA should then determine whether Petitioner 

established a well-founded fear of persecution. See Abdel-Masieh, 73 F.3d at 

583–84. However, we note that the BIA did find that Petitioner “suffered 

serious physical abuse by Ethiopian government agents” entitling him to CAT 

protection, and this court has held that proving “torture” under CAT is a more 

5 Family background is not an enumerated protected ground under the INA. We note 

that each court that has addressed the issue has concluded that family background can 

constitute a particular social group under the INA. Crespin-Valladares v. Holder, 632 F.3d 

117, 125 (4th Cir. 2011) (citing Al–Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009),

Ayele v. Holder, 564 F.3d 862, 869 (7th Cir. 2009), Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 

(9th Cir. 2004), and Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993)).

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No. 14-60697

stringent standard than “well-founded fear of persecution.” See Roy v. 

Ashcroft, 389 F.3d 132, 140 (5th Cir. 2004); see also Ighodaro v. Holder, 354 F. 

App’x 152, 155 (5th Cir. 2009).

III. 

Because the IJ failed to consider factors central to determining whether

the only reason for Petitioner’s detention and maltreatment was a legitimate 

investigation into terrorism, we grant the petition for review and remand this 

case to the BIA for further proceedings consistent with this opinion.

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