Andrew Radido v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Andrew Poche Radido. Decision: Reversed, Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. Petition GRANTED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10653

Date Filed: 06/05/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10653
Non-Argument Calendar
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Agency No. A200-599-802

ANDREW POCHE RADIDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 5, 2017)

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Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Andrew Poche Radido petitions for review of the decision of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order
denying his application for withholding of removal and relief under the Convention
Against Torture (“CAT”). He argues that the BIA erred in affirming the IJ’s
adverse credibility determination because the determination was not supported by
substantial evidence. He contends that when his testimony is considered, he
carried his burden to show he was entitled to relief. In the alternative, he asserts
that the BIA erred in affirming the IJ’s determination that he failed to come
forward with sufficient corroborating evidence to show he was entitled to relief.
He argues that the IJ failed to consider supplemental evidence that he timely filed
with the immigration court but that was never made a part of the administrative
record. Because the BIA did not consider Radido’s argument that the IJ erred by
failing to consider his supplemental evidence, we grant the petition, vacate the
BIA’s order, and remand so that the BIA may address this argument in the first
instance.
I.

FACTUAL BACKGROUND

Radido, a native and citizen of Kenya, entered the United States in 2003 on a
non-immigrant visa but remained without authorization after his visa expired.
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Several years after entering the United States, Radido applied for asylum,
withholding of removal, and protection under the CAT, claiming that he had been
persecuted in Kenya because of his political opinion and membership in a social
group.
A.

Initial Proceedings Before the IJ
In an affidavit and testimony before the IJ, Radido described the persecution

he previously faced in Kenya and why he believed he would be murdered if he
returned there. Radido explained that in 1997 he had been elected as a councilor in
Kenya, holding a position that was similar to that of a member of the United States
House of Representatives. As a councilor, Radido supported a project to
modernize slums by demolishing shanties and replacing them with new homes that
had basic modern amenities. This project was opposed by slumlords who rented
the shanties. After Radido’s negotiations with the slumlords failed, the slumlords
aligned with the Mungiki, an ethnic terrorist group, to target Radido.
According to Radido, the Mungiki harassed him because of his political
work. In 2001, a Mungiki member threatened Radido’s life. When Radido ran for
reelection the next year, the threats escalated. In one instance, Mungiki members
dragged Radido from his vehicle, punching and kicking him while threatening his
life. After this physical attack, Radido fled to the United States for three months.
But he returned to Kenya to continue his reelection campaign, which he lost. Even
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though Radido lost the election, the Mungiki continued to target him for physical
violence and harassment.
In April 2003, Radido fled to the United States to escape the Mungiki.
While he was in the United States, Radido sent his family into hiding so that the
Mungiki could not harm them. Even after years in the United States, Radido
worried that the Mungiki would murder him if he returned to Kenya. He believed
that the Mungiki were still after him because in 2008 they murdered a man whom
they believed to be Radido.
Besides his own testimony, Radido submitted corroborating evidence to
support his application. Such evidence included documents confirming that he had
been elected a councilor and medical records showing a shoulder fracture after a
physical attack. He also submitted other evidence reflecting that the Mungiki were
a violent group. He provided an affidavit from his bodyguard stating that Radido
had received death threats and in 2008 a man was murdered because the Mungiki
had mistaken him for Radido.
At the conclusion of the hearing, the IJ issued an oral decision denying
Radido’s application. The IJ found that Radido’s asylum application was time
barred. In the alternative, the IJ rejected Radido’s asylum claim on the merits,
determining that he had failed to establish that his life would be in danger if he
returned to Kenya. The IJ made an adverse credibility determination and rejected
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Radido’s testimony. Because Radido was ineligible for asylum, the IJ also found
that he failed to carry his burden to establish he was eligible for withholding of
removal or relief under the CAT.
B.

The BIA’s Initial Decision
Radido appealed to the BIA, which dismissed his appeal in part and

remanded in part. The BIA found that Radido was ineligible for asylum relief
because his asylum application was untimely and dismissed the asylum portion of
his appeal. But the BIA concluded that the IJ’s analysis of Radido’s eligibility for
withholding of removal and protection under the CAT was so cursory and
conclusory that it precluded meaningful review of the merits of the decision. The
BIA remanded the case to the IJ so that the IJ could make clear factual findings
and explain the basis for the decision. The BIA also directed the IJ to further
evaluate Radido’s credibility.
C.

The IJ’s Second Decision
Upon remand, the IJ allowed Radido to submit additional evidence. Radido

claims that he filed additional evidence with the immigration court. But when the
IJ subsequently denied Radido’s application for withholding of removal and relief
under the CAT, the IJ indicated that Radido had submitted no new evidence after
the remand and never acknowledged or considered Radido’s supplemental filing.

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With regard to the merits of Radidio’s applications, the IJ concluded that
Radido failed to meet his burden in connection with his application for withholding
of removal or CAT relief. Again, the IJ made an adverse credibility determination.
With respect to past persecution, the IJ found that Radido had proven that he had
been elected to the legislature and that the Mungiki were a powerful gang, but that
he submitted insufficient corroborating evidence to show that he had been
personally targeted or that his persecutors were the Mungiki. The IJ further found
that Radido had failed to show he would face persecution or harm if he returned to
Kenya and pointed to reports showing that Kenya had cracked down on the
Mungiki and recently held peaceful elections.
D.

The BIA’s Second Decision
Radido again appealed the IJ’s decision to the BIA. As an initial matter,

Radido argued to the BIA that the IJ had erred by failing to consider the
supplemental materials that he had filed after the remand. He also asserted that the
IJ’s credibility determination lacked support and that in any event his corroborating
evidence showed that he was entitled to relief.
The BIA dismissed the appeal, explicitly adopting and affirming the IJ’s
conclusion that Radido had failed to carry his burden to prove he was eligible for
withholding of removal or protection under the CAT. The BIA explained that the
IJ’s credibility determination was not clearly erroneous. The BIA also adopted the
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IJ’s reasons for rejecting Radido’s argument that he had proven he was entitled to
relief through corroborating evidence. But the BIA failed to address Radido’s
argument that the IJ had erred by failing to consider the supplemental materials
that he had filed. Radido has petitioned our court for review.
II.

STANDARD OF REVIEW

We review only the BIA’s decision except to the extent that it expressly
adopts the IJ’s opinion or reasoning. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1234
(11th Cir. 2013). Because the BIA expressly adopted some of the IJ’s reasoning,
we must review both the IJ’s and BIA’s decisions. See Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010).
We review factual determinations, including credibility determinations,
under a substantial evidence standard. Chen v. U.S. Att’y Gen., 463 F.3d 1228,
1230-31 (11th Cir. 2006). But when the BIA or IJ “has failed to give reasoned
consideration or make adequate findings, we remand for further proceedings
because we are unable to review the decision.” Mezvrishvili v. U.S. Att’y Gen.,
467 F.3d 1292, 1295 (11th Cir. 2006) (internal quotation marks and citations
omitted).
III.

LEGAL ANALYSIS

In his petition for review, Radido argues that he was entitled to withholding
of removal and relief under the CAT. He presents two main arguments why the
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BIA and IJ erred. First, he argues that his testimony was sufficient to establish that
he was entitled to relief. Although the BIA and IJ found that he was not credible,
he argues that substantial evidence does not support this finding. Second, he
asserts that regardless of his credibility, he submitted corroborative evidence that
was sufficient to satisfy his burden, including the supplemental materials that he
filed with the immigration court after remand.
Radido argues in his petition, like he argued to the BIA, that the IJ failed to
consider the entire record because the IJ ignored the supplemental, corroborating
evidence that he filed with the immigration court after the remand. He contends
that his supplemental materials were never made a part of the administrative record
or considered by the IJ. The BIA ignored this argument and failed to address it.
As a result, we are unable to review this issue. See Mezvrishvili, 467 F.3d at 295.
We acknowledge that neither the BIA nor the IJ is required to specifically address
each claim raised by a petitioner or each piece of evidence he presented, but they
must consider the issues raised and render a decision in terms sufficient to enable a
reviewing court to perceive that they have “heard and thought and not merely
reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (internal
quotation marks omitted). Because the BIA failed to render a reasoned decision
addressing, or even acknowledging, Radido’s argument about the supplemental

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evidence, we must remand. 1
IV.

CONCLUSION

For the reasons set forth above, we GRANT Radido’s petition, VACATE the
decision of the BIA, and REMAND for further proceedings consistent with this
opinion.
PETITION GRANTED; VACATED AND REMANDED.

1

We have recognized an exception to the remand rule that applies in “rare
circumstances” when the undecided question involves a purely legal issue that is procedural in
nature. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1330 (11th Cir. 2004) (internal quotation marks
omitted). We cannot say such circumstances are present in this case, which involves the factual
question of whether Radido actually filed the supplemental materials.
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