Sixth Circuit on nexus, CAT

Mushayahama v. Holder, No. 10-3874 (6th Cir. Apr. 24, 2012) (unpublished)

The court denied in part and sustained in part this petition for review.  The court dismissed the challenge to the BIA's determination that she did not qualify for an exception to the asylum deadline because she did not raise a statutory or constitutional claim.

The court affirmed the denial of a withholding claim on the merits.  The court agreed that she did not present direct or circumstantial proof that the past harm was on account of her actual or imputed political opinion, even though there was no dispute that she suffered harm that rose to the level of persecution.

The court also agreed that she did not suffer or will not suffer persecution on account of a particular social group.  Sidestepping the question of whether female teachers opposed to the ruling party is a cognizable social group, the court found that there was a lack of nexus between the harm and the proposed group.

The court declined to find that a group consisting of nationals who remained abroad too long was a social group because it was not sufficiently visible.  On review, the petitioner argued that the BIA erred in relying on its interpretation of foreign law relating to loss of nationality without giving her an opportunity to respond because she did not exhaust her remedies by first filing a motion to reopen with the BIA or that the error affected the outcome of the proceeding.

However, the court remanded for reconsideration of the petitioner's CAT claim.  The IJ and BIA did not discuss the country condition evidence in the CAT analysis.  Also, the IJ misstated the burden of proof to require the petitioner to show that she will be detained upon return, not that she will tortured.