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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 27th day of September, two thousand twelve.
PRESENT: PIERRE N. LEVAL, JOSE A. CABRANES, ROBERT A. KATZMANN, Circuit Judges.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the decision of the Bureau of Immigration Appeals ("BIA") is GRANTED, the BIA's decision is VACATED, and the cause is REMANDED for further proceedings consistent with this order.
Petitioner-appellant Amadou Oury Diallo, a native and citizen of Guinea, seeks review of the BIA's order dated January 21, 2011, affirming the Immigration Judge's order dated April 15, 2009, which denied asylum, withholding of removal, and relief under the Convention Against Torture. See In re Amadou Oury Diallo, No. A097 533 593 (B.I.A. Jan. 21, 2011), aff'g No. A097 533 593 (Immig. Ct. N.Y.C. Apr. 15, 2009). We assume the parties' familiarity with the facts and procedural history of this case.
Because the BIA did not adopt the Immigration Judge's reasoning, we review only the BIA decision and assume--as the BIA did--that Diallo's testimony was credible. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). We defer to the BIA's factual findings "unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B), and thus accept any factual findings supported by "reasonable, substantial and probative evidence in the record." Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (quotation marks omitted). We review legal questions de novo. See id.
An applicant seeking asylum under the Immigration and Nationality Act must be a "refugee," defined as someone who is "unable or unwilling to avail himself or herself of the protection of [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Diallo argues that the Guinean government will target him on account of (1) his social group--namely, his nuclear family--and (2) imputed political views. We address these arguments in turn.
Addressing the first issue of his membership in a "social group," Diallo asserts that he has been, and upon returning to Guinea would continue to be, persecuted on account of his father's political activities in opposition to the Guinean government. In particular, Diallo alleges that government officers put him in jail in an effort to force his father to come out of hiding, and that the officers let him go on the condition that he would help them locate his father. Rather than following through on this promise, however, Diallo fled the country and came to the United States. The BIA did not address this basis for relief in its opinion, perhaps thinking that Diallo's allegations related only to alleged persecution on the basis of an imputed political opinion.
Diallo's asylum application and subsequent testimony and arguments allege a potentially viable theory of persecution on the basis of his familial social group. See, e.g., Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) ("membership in a nuclear family" may support a social-group claim); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008) ("Our prior opinions make it clear that we consider family to be a cognizable social group within the meaning of the immigration law."). For this type of claim, Diallo need only show that he was targeted because of his membership in his nuclear family.
Defending the BIA's silence regarding this aspect of Diallo's asylum application, the government argues that Diallo waived this potential basis for relief by not raising this argument during the administrative review process. Having evaluated the record ourselves, we disagree. Diallo checked the "political opinion" and "membership in a particular social group" boxes on his asylum application. He also explained on that application that he feared persecution "as the eldest son of my father and because I share the same opposition view with my father." C.A.R. at 230 (emphasis added). Since completing the application, Diallo has consistently argued that he suffered persecution because of the government's efforts to retaliate against and recapture his father. Therefore, Diallo has alleged a potentially viable claim of persecution based on his membership in the social group composed of his nuclear family, and we ...