Kouame Adonics Konan v. Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3467
KOUAME ADONICS KONAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Board No. A16-901-411)
Argued October 20, 2005
Before: SMITH, BECKER, and NYGAARD, Circuit Judges.
(Filed: December 30, 2005)
NATHANIEL A. VITAN (ARGUED)
AMANDA P. BILES
Latham & Watkins LLP
555 Eleventh St., NW
Suite 1000
Washington, D.C. 20004-1304
Attorneys for Petitioner

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PETER D. KEISLER
Assistant Attorney General
CHRISTOPHER C. FULLER
Senior Litigation Counsel
Office of Immigration Litigation
PAULA K. SPECK
GRETCHEN M. WOLFINGER (ARGUED)
Department of Justice
Post Office Box 502
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
BECKER, Circuit Judge.
Kouame Adonics Konan petitions for review of a decision
by the Board of Immigration Appeals (“BIA”), denying his
application for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). Because we conclude
that the BIA did not explain its rationale for denying Konan’s
claim that he was persecuted due to membership in a particular
social group (his status as the son of a military police officer),
there is, as of yet, nothing for us to review. Basic principles of
administrative law thus require that we remand the case for the
BIA to consider this claim in the first instance. We also find that
substantial evidence does not support the BIA’s conclusion that
Konan did not suffer past persecution on account of imputed
political opinion. We will grant the petition for review.
I. Facts
Konan was born in Bouake, Côte d’Ivoire, in 1980. He is
a Catholic, a member of the Baoule tribe, and a supporter of
President Laurent Gbagbo’s government. His father was an officer
in the Gendarmerie, the Ivorian military police force. Konan lived
with his father and his brother in the Gendarmerie camp of

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A number of other rebel groups were also active in the1
September 19 uprising.
3
N’Gattakro in Bouake (“the Gendarmerie camp” or “the camp”)
along with approximately 100 other gendarmes and their families.
On September 19, 2002, rebel forces attacked the Gendarmerie
camp, killing Konan’s father and brother.
To put this attack in context, we provide a short summary
of the recent history that gave rise to it, all of which is documented
in the record. In December 1999, a group of “army mutineers”
loyal to General Robert Guéi led a coup that overthrew President
Konan Bédié. In a presidential election held the following year,
the Ivorian Supreme Court disqualified all of the leading
candidates except for Guéi and Gbagbo. Although Gbagbo won
51.9 percent of the vote, compared to Guéi’s 28.7 percent, Guéi
claimed victory. Guéi’s attempted power grab triggered a popular
uprising. Gbagbo was then declared the winner of the election, but
that result was contested by followers of Alassane Dramane
Ouattara, a former prime minister. Armed clashes began in which
the government army and supporters of Gbagbo’s party, the Front
Populaire Ivoirien, were allied against Ouattara supporters. In
2001 and 2002, the various factions appeared to make progress
toward reconciliation. Local elections were held without incident,
and Bédié, Ouattara, and Guéi took part in a forum of national
reconciliation. The economy seemed to be recovering, and a
government of national unity was formed.
The situation changed suddenly on September 19, 2002,
when junior officers who had once been affiliated with Guéi
mutinied in three Ivorian cities: Abidjan, Korhogo, and Bouake.
Bouake is the location of the N’Gattakro Gendarmerie camp where
Konan lived. The rebels, comprised largely of Muslims, referred
to themselves as the Mouvement Patriotique de la Côte d’ Ivoire
(“MPCI”). During the violence in Abidjan, Guéi was killed,1
allegedly by government assassins. There were also killings or
attempted killings of other political leaders. The government
suppressed the mutiny in Abidjan, but the rebels soon seized the
northern half of the country. According to the State Department’s
2003 Country Report on Côte d’Ivoire, “[t]he failed coup attempt
and ongoing rebellion quickly escalated into the country’s worst

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crisis since independence in 1960.” Both the rebels and the
government, including the gendarmes, committed rampant human
rights abuses.
On the morning of September 19, Konan was engaged in
his usual work: selling religious statues and cutting people’s hair
in the street. In the early afternoon, he heard gunfire coming from
the camp, and ran toward it. Standing at the front entrance of the
camp, Konan saw rebels attacking the camp with large guns and
missile launchers. The gendarmes in the camp had only small
pistols. Konan watched as the rebels shot through the hollow
cement walls of his house, igniting the wooden furniture and
propane tanks inside. Konan’s father and brother were burned
alive. Konan stated in his affidavit, “I could hear my father and
brother screaming and there was nothing I could do. The rebels
executed my father and my brother and destroyed my home.”
In October of 2002, government forces briefly recaptured
Bouake. Believing, incorrectly, that the government had secured
the city, a crowd came out to celebrate, but the rebels fired into the
crowd and reportedly executed 100 gendarmes who had been
captured in the initial rebel attack.
By this time, however, Konan was far from Bouake. After
the attack on the Gendarmerie camp, Konan fled with hundreds of
others, eventually encountering French troops who provided some
protection. Konan reached Yamoussoukro, Côte d’Ivoire, where
he spent eleven months in a refugee camp. French troops and Red
Cross workers provided some assistance to the refugees. Konan
moved to another camp, this time in San Pedro (also in Côte
d’Ivoire) when he heard rumors that rebels planned to attack
Yamoussoukro. He went to San Pedro’s port, Zone Portuaire,
because it was well-guarded by government forces. Even at the
port, however, he would wake up “[e]very morning . . . to find
more dead bodies on the street,” and he feared a rebel attack on
San Pedro.
Konan learned of a cargo ship leaving Zone Portuaire, and
he boarded the ship as a stowaway. Five days later, he emerged
from hiding due to a severe toothache and was spotted by the crew.
The ship arrived in Philadelphia, and Konan was taken into
custody.
On February 8, 2004, Konan filed an application for
asylum, and his case was assigned to an Immigration Judge (IJ).

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Konan’s “petition for review focuses on his asylum claim2
and makes no specific argument that the BIA’s denials of his
claims for withholding of removal and CAT protection were
incorrect. We therefore deem those claims waived and address only
the asylum claim.” Vente v. Gonzales, 415 F.3d 296, 299 n.3 (3d
Cir. 2005) (citation omitted).
5
In the Immigration Court, Konan argued that he was entitled to
asylum because he faced past persecution and had a well-founded
fear of future persecution for reasons enumerated in 8 U.S.C. §
1101(a)(42)(A). First, Konan argued that he faced persecution on
account of his “membership in a particular social group,”
specifically, his status as the son of a gendarme. See 8 U.S.C. §
1101(a)(42)(A). Second, Konan contended that he faced
persecution due to imputed “political opinion” in that he supports
the Ivorian government. See Id. Konan also requested asylum on
other bases, in addition to withholding of removal and relief under
the Convention Against Torture, but he does not press these claims
on appeal.2
On April 12, 2004, the IJ issued an oral decision. The IJ
accepted Konan’s account of the attack on the Gendarmerie camp,
but denied all of Konan’s claims. As addressed more fully below,
the IJ did not discuss Konan’s membership in a particular social
group claim. He apparently rejected Konan’s imputed political
opinion claim on the ground that the attack on the Gendarmerie
camp was a strike against the government itself, not an attempt to
kill government supporters, relying on Matter of Fuentes, 19 I. &
N. Dec. 658, 661-62 (BIA 1988) (holding that attacks on police
officers viewed as extensions of the state do not constitute
persecution). The BIA affirmed the IJ’s decision without opinion.
II. Jurisdiction and Standard of Review
We have jurisdiction to review the final order of the BIA
under 8 U.S.C. § 1252. When the BIA affirms an IJ’s decision
without opinion, we review the IJ’s decision as the final agency
determination. Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.
2004). We consider whether findings of fact (including whether

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Konan has demonstrated past persecution or a well-founded fear
of future persecution) are supported by substantial evidence.
Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). This
standard requires great deference to the decisions of the BIA: “If
a reasonable fact finder could make a particular finding on the
administrative record, then the finding is supported by substantial
evidence.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003); see
also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
III. Analysis
A. Membership in a Particular Social Group
As this Court has explained, “[a] grant of asylum under §
1158(b)(1) of the Immigration and Nationality Act (INA) allows
an otherwise removable alien to stay in the United States.” Gao v.
Ashcroft, 299 F.3d 266, 271(3d Cir. 2002). The Attorney General
may grant asylum to a “refugee,” 8 U.S.C. § 1158(b)(1), which is
defined as “a person unable or unwilling to return to the country
of that person’s nationality or habitual residence because of past
persecution or because of a well-founded fear of future persecution
on account of his race, religion, nationality, membership in a
particular social group, or political opinion.” Gao, 299 F.3d at
271-72; 8 U.S.C. § 1101(a)(42)(A). To show past persecution, an
applicant must demonstrate “‘(1) an incident, or incidents, that rise
to the level of persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed by the
government or forces the government is either ‘unable or
unwilling’ to control.’” Id. (quoting Navas v. INS, 217 F.3d 646,
655 (9th Cir.2000)).
An applicant who demonstrates past persecution is entitled
to a presumption that he will suffer future persecution. 8 C.F.R. §
208.13(a)(1); Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.
2003). “That presumption can be rebutted if the INS establishes by
a preponderance of the evidence that the applicant could
reasonably avoid persecution by relocating to another part of his
or her country or that conditions in the applicant’s country have
changed so as to make his or her fear no longer reasonable.”
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 n.3 (3d Cir.2003)
(citing 8 C.F.R. §§ 208.13(b)(1)(i) & (ii)).

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Konan argues that the BIA failed to address his claim that
he was persecuted due to membership in a particular social group.
Specifically, in the Immigration Court, Konan asserted that he was
persecuted because he is an immediate family member of a
gendarme. He submits that because this claim was not considered
by the IJ and the BIA affirmed the IJ’s decision without opinion,
the claim was never considered, hence the case must be remanded
to the BIA.
It is a bedrock principle of administrative law that judicial
review of an agency’s decision is limited to the rationale that the
agency provides. “[A] reviewing court, in dealing with a
determination or judgment which an administrative agency alone
is authorized to make, must judge the propriety of such action
solely by the grounds invoked by the agency.” SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). Accordingly, a reviewing court
is powerless to decide in the first instance issues that an agency
does not reach.
In the immigration context, this principle is exemplified by
INS v. Ventura, 537 U.S. 12 (2002) (per curiam). In Ventura, the
BIA denied an asylum application on the ground that the applicant
failed to show persecution under 8 U.S.C. § 1101(a)(42)(A);
therefore, the BIA did not reach the subsequent question of
changed country conditions. Id. at 13-15. The United States Court
of Appeals for the Ninth Circuit rejected the BIA’s finding that the
applicant failed to show persecution and went on to decide the
issue of changed circumstances. Id. at 13. The Supreme Court
held that the Ninth Circuit had erred in reaching the issue of
changed circumstances rather than remanding the case for the BIA
to consider the issue in the first instance. Id. at 18.
This Court too has held that if the BIA fails to address one
of an applicant’s stated grounds for relief, the case must be
remanded for the BIA to consider the claim. In Vente v. Gonzales,
415 F.3d 296 (3d Cir. 2005), an applicant for asylum asserted that
he faced persecution in that he had received death threats from
paramilitary organizations. The BIA rejected this claim, finding
that (1) the applicant could not claim asylum based on “general
unrest in Columbia” and (2) members of the applicant’s family
who remained in Columbia had not been harmed. Id. at 299. We
concluded that the BIA’s findings “miss[ed] the mark” because
findings regarding general unrest and the applicant’s family did

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not address the applicant’s claim that death threats were directed
specifically at him. Id. at 301. This Court stated: “‘When
deficiencies in the BIA’s decision make it impossible for us to
meaningfully review its decision, we must vacate that decision and
remand so that the BIA can further explain its reasoning.’” Id. at
302 (quoting Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.
2003)). We therefore “remand[ed] th[e] case to the BIA for a
fresh look at [the petitioner’s] asylum claim—one that focuses on
the true underpinnings of that claim.” Id. at 302-03.
If the BIA failed to consider Konan’s claim of persecution
based on his status as an immediate family member of a gendarme,
the case must be remanded under Vente. Therefore, we consider
whether the BIA addressed this claim.
It is true that the IJ made a statement which, taken in
isolation, might suggest that he rejected Konan’s claim that he was
persecuted because he is an immediate family member of a
gendarme:
I must in the end concur with Bureau counsel that
there is no past persecution in this case. If
respondent’s father and brother died in the
circumstances that he described, which is certainly
tragic, but without more, I cannot conclude there
was an act of persecution rather than an act of armed
rebellion.
However, the IJ made this statement in the context of concluding
that Konan was not persecuted due to political opinion, not in
addressing his claim of persecution on account of his status as an
immediate family member of a gendarme.
The IJ also discussed Konan’s claim that he was persecuted
on account of his membership in another social group, which
Konan described as “future Ivorian internally displaced persons in
the Ivory Coast who will refuse to fight for the rebels because of
their government loyalty.” However, because the IJ did not
discuss Konan’s separate claim that he was persecuted due to his
status as an immediate family member of a gendarme, we cannot
conclude that this claim was adequately considered. Therefore, we
will remand the case for the BIA to consider this issue in the first

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We do not consider whether substantial evidence could3
support a finding that Konan did not suffer past persecution due to
his family ties; instead, under Vente, we must leave this task to the
BIA. We note, however, that Konan made a compelling case
which the government will likely have difficulty refuting on
remand. Konan’s evidence included: (1) a 2002 State Department
Country Report, citing “reliable reports” that when government
forces entered Bouaké after the September 19 coup attempt,
“rebels executed a number of the sons of gendarmes”; (2) a
November 2003 International Crisis Group report stating that
during the September 19 attacks on Abidjan, “the rebels
concentrated on the camps and schools of the gendarmerie and
police”; (3) Konan’s affidavit, in which he stated that during the
attack on the gendarmerie, the rebels “used their large guns to
randomly shoot throughout the camp. Everywhere homes were
being destroyed and people were being killed”; (4) Konan’s sworn
statement in his Application for Asylum and for Withholding of
Removal that “[t]he rebels target and have attacked gendarme and
their families. My father was a member of the gendarme”; and (5)
the affidavit of Thomas J. Bassett, a Professor of Geography at the
University of Illinois, which states: “Mr. Konan was most likely
targeted by the rebels because his father was a member of the
gendarmerie. The gendarmes and their children were
systematically executed in Bouaké . . .”
9
instance.3
B. Imputed Political Opinion
Konan argues that the IJ, and hence the BIA, also failed to
address his claim that he was persecuted due to imputed political
opinion. Political opinion, like membership in a particular social
group, is a protected ground, see 8 U.S.C. 1101(a)(42)(A). This
Court has held that an applicant need not actually hold the views
which his persecutors attribute to him. See Singh v. Gonzales, 406
F.3d 191, 196 (3d Cir. 2005) (“In determining whether persecution
existed on account of political opinion, we focus on whether the
persecutor has attributed a political view to the victim and acted on
that attribution.”) (citation omitted).

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Our distillation is based upon the following excerpt from4
the IJ’s opinion:
Now the respondent’s father was a gendarme and
the rebels attacked him and others as the way the
Court sees it embodying the power of the state. This
is general how civil war’s are fought. Now I’m not
classifying this event in September 2002 as a civil
war since I think the evidence establishes it as a
failed coup d’etat. But the difference in violence is
perhaps on the one of scale. But the Board has ruled
that being a police officer, for example, who has
been targeted for violence by rebel or guerilla forces
is not an act of persecution per se or without more.
See [Matter of Fuentes, 19 I. & N. Dec. 658].
I must in the end concur with Bureau counsel
that there is no past persecution in this case. If
respondent’s father and brother died in the
circumstances that he described, which is certainly
tragic, but without more, I cannot conclude there
was an act of persecution rather than an act of armed
rebellion. . . . Matter of Fuentes pointed out if police
officers can legally claim persecution on account of
their being targeted for violence and violent civil
action, so too could rebels and hence everybody
fleeing the civil war could be eligible for asylum.
10
Because the IJ discussed the claim that Konan was
persecuted because the rebels imputed loyalty to the Gbagbo
government to him and his family, Konan’s argument essentially
is that the IJ’s treatment of the issue (and his rejection of the claim)
were too opaque for us to grasp their meaning. Our best effort at
a distillation of the IJ’s opinion is as follows. The rebel assault on4
the Gendarmerie camp was an attack on the government’s military
police force, in essence, an attack on the government itself. The
BIA held in Matter of Fuentes, 19 I. & N. Dec. at 661, that attacks
on police officers as “extensions of the government’s military
forces or . . . highly visible embodiments of the power of the state”

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do not constitute persecution. Konan’s father and brother were
killed because his father was a gendarme. Therefore, Konan did
not suffer persecution due to imputed political opinion.
So long as the IJ’s rationale is clear enough to permit
review, our task is to review it, not to grade it. See Awolesi v.
Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) (“In order for us to be
able to give meaningful review to the BIA’s decision, we must
have some insight into its reasoning.”). We are reasonably
confident that the distillation above accurately reflects the IJ’s
rationale. Thus, the IJ’s opinion, while admittedly somewhat
opaque, is clear enough to permit review. Accordingly, we
consider whether substantial evidence supports the IJ’s conclusion
that Konan suffered persecution merely because his father was a
gendarme (and therefore did not suffer persecution due to imputed
political opinion).
In Matter of Fuentes, the BIA held that an applicant for
asylum who was a former member of the Salvadorian national
police could not claim persecution based on threats from leftist
guerillas that resulted from his status as a police officer:
As policemen around the world have found, they are
often attacked either because they are (or are viewed
as) extensions of the government’s military forces or
simply because they are highly visible embodiments
of the power of the state. In such circumstances, the
dangers the police face are no more related to their
personal characteristics or political beliefs than are
the dangers faced by military combatants.
Matter of Fuentes, 19 I. & N. Dec. at 661. While the IJ in this case
apparently viewed the attack on the Gendarmerie camp as this sort
of assault—one aimed solely at the state’s military and police
power—Konan argues that it was part of something else, “a
calculated plan to ferret out and murder government loyalists.”
If what Konan claims is true, the attack amounts to
persecution on account of imputed political opinion. There is an
important distinction between a plan to weaken the state by
crippling its military and police power on the one hand and a plan
to kill individuals who support the government on the other. In the
case of particular police officers who are deemed to support the

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government, the question becomes whether they were attacked
because they are police officers or because they are loyalists.
Therefore, we consider the evidence in the administrative
record that bears on whether the attack was motivated by a desire
to kill presumed government sympathizers because of their
political views. Most importantly, the rebels attacked a camp
where gendarmes lived with their families, and they
indiscriminately attempted to kill everyone who lived there.
Konan avers in his affidavit that during the attack on the
Gendarmerie camp, the rebels did not aim specifically for
gendarmes but “used their large guns to randomly shoot
throughout the camp. Everywhere homes were being destroyed
and people were being killed.” He states that the rebels “have
aimed their attacks at government officials and those suspected of
supporting the government. Hence, they attacked my family, my
home, and the gendarmerie camp where my father, brother, and I
lived.”
Extensive record evidence supports Konan’s view that the
camp was attacked because the rebels believed that it housed
government loyalists. First, the State Department’s 2002 Country
Report states that when the rebels recaptured Bouake from the
government, “northern sympathizers with the rebels reportedly
killed six loyalists Baoules,” the tribe to which Konan belongs, by
“burn[ing] them to death by setting fire to tires placed around their
necks.” The Country Report describes gruesome incidents in other
parts of the country, including murders of “a number of gendarmes
and civilians thought to be loyal to the Government.” The Country
Report also states that following the September 19, 2002 attacks,
“[t]here . . . were credible reports of rebel soldiers or local recruits
harassing and abusing with impunity local citizens, often on the
basis of ethnic background and presumed political leanings.”
Second, the State Department’s 2003 Country report cites
information that rebel soldiers beat or tortured Gbagbo supporters,
that they imprisoned individuals considered to be “loyalist
infiltrators,” and that some prisoners were killed.
Third, according to Amnesty International’s 2002 report on
Côte d’Ivoire, rebel groups “summarily executed dozens of
unarmed members of the security forces and others suspected of
supporting the government.” The report continues that rebels
“called on the population to denounce anyone thought to be a

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military official or government sympathizer. Several such people
were reportedly killed on the spot.”
Fourth, Konan’s own statements provide some support for
the view that the rebels sought to kill government sympathizers by
attacking the Gendarmerie camp. Konan asserts in a sworn
statement in his Application for Asylum and for Withholding of
Removal:
Even if the rebels were unaware of my political
views they would impute government loyalty on me
because my father is a member of the gendarme and
I am a Catholic. Because I am a son of a gendarme,
a Catholic, a member of the Baoule tribe, and a
government loyalist, I will be targeted by the rebels
and killed, tortured, and or imprisoned.
Konan also submitted the affidavit of Professor Bassett, see
supra note 3, which states: “The gendarmes and their children
were systematically executed in Bouake because the gendarmes
supported [President] Gbagbo’s rise to power following the 2000
elections. The rebels viewed the gendarmes as their enemy for
political and military reasons.” The IJ stated that he would not
give much weight to this affidavit because Professor Basset’s
primary expertise is in agriculture. Professor Bassett’s curriculum
vitae reveals that while he has written on African history, he indeed
specializes in agriculture and ecology. This limits the significance
of his affidavit but does not undermine it completely.
While the IJ found that the attack on the Gendarmerie camp
was not motivated by a desire to kill presumed government
supporters, he did not cite any evidence in support of this
conclusion, other than the general fact that the attack was part of
an armed uprising. The government called no witnesses in the
Immigration Court, and its only evidence consisted of a map of
Côte d’Ivoire, Konan’s Application for Asylum, Konan’s “record
of deportable alien” form, and various State Department reports.
We do not doubt that the rebels attacked the Gendarmerie
camp in part because they viewed the gendarmes as extensions of
the state, which they sought to overthrow. Standing alone, this
does not constitute persecution under Matter of Fuentes.
However, we bear in mind that Konan need not demonstrate that

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the desire to kill loyalists was the sole motivation for the attack.
“A persecutor may have multiple motivations for his or her
conduct, but the persecutor must be motivated, at least in part, by
one of the enumerated grounds.” Lukwago v. Ashcroft, 329 F.3d
157, 170 (3d Cir. 2003). Thus, we consider whether the desire to
kill presumed government loyalists was a motivation for the attack.
The evidence in the record demonstrates that during the
September 19 attacks and their aftermath, rebels sought to kill
government loyalists in several areas in Côte d’Ivoire. There is
also evidence specific to Bouake: rebels burned government
supporters to death after retaking the city. When the attack on the
Gendarmerie Camp is viewed against this background, it becomes
clear that the desire to kill government supporters was a factor
motivating the assault. Critically, the rebels attacked a camp
where gendarmes lived with their families. The rebels did not aim
only for gendarmes but shot randomly into the camp, killing
gendarmes’ family members, including Konan’s brother. This
evidence demonstrates that the attack on the Gendarmerie camp
was motivated, at least in part, by a desire to kill presumed
government loyalists because of their political beliefs.
As the government correctly asserts, “general conditions of
civil unrest or chronic violence and lawlessness do not support
asylum.” Indeed, this Court has stated, “‘Mere generalized
lawlessness and violence between diverse populations, of the sort
which abounds in numerous countries and inflicts misery upon
millions of innocent people daily around the world, generally is not
sufficient to permit the Attorney General to grant asylum. . . .’”
Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (quoting
Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998)).
On the other hand, while general unrest and violence will
not support an asylum claim standing alone, persecution on
account of political opinion may occur in the context of
widespread violence. While “determining motive in situations of
general civil unrest” is difficult, that should not “diminish the
protections of asylum for persons who have been punished because
of their actual or imputed political views . . . .” In re S-P-,
Applicant, 21 I. & N. Dec. 486, 493 (BIA 1996). We believe that
the evidence cited above, none of which is contradicted,
demonstrates that although the attack on the Gendarmerie camp
occurred in the context of general civil unrest, it was motivated, at

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Because the BIA concluded that Konan did not suffer past5
persecution for a reason enumerated by 8 U.S.C. § 1101(a)(42)(A),
it was unnecessary for the BIA to consider whether country
conditions had changed or whether Konan could safely relocate to
another area in Côte d’Ivoire under 8 C.F.R. §
208.13(b)(1)(i)(A)&(B). The IJ appeared to consider these issues
nonetheless. Because we are remanding the case for consideration
of both claims that Konan presses on appeal, we need not decide
whether this was error.
For the same reason, we do not reach Konan’s argument
that the BIA’s decision to streamline the administrative appeal
(that is, to approve it without opinion) was arbitrary and
capricious. See Smriko v. Ashcroft, 387 F.3d 279, 293-94 (3d Cir.
2004) (stating that the BIA’s decision to streamline a case is
reviewed under the arbitrary and capricious standard). Under the
streamlining procedure, the single member of the BIA to whom a
case is referred may streamline it only if he or she determines, inter
alia, that “[t]he issues on appeal are squarely controlled by existing
Board or federal court precedent and do not involve the application
of precedent to a novel factual situation.” 8 C.F.R. §
1003.1(e)(4)(i)(A).
As discussed above, the IJ neglected to discuss Konan’s
claim that he was persecuted because he is an immediate family
member of a gendarme. We note, however, that properly
considered, this claim appears to raise a novel legal issue that has
not been decided by the BIA or by a precedential opinion of this
Court: whether persecution on account of family ties constitutes
persecution on account of membership in a particular social group
under 8 U.S.C. § 1101(a)(42)(A). Several Courts of Appeals have
held family ties constitute membership in a particular social group.
See, e.g., Lopez-Soto v. Ashcroft, 383 F.3d 228, 235-236 (4th Cir.
15
least in part, by a desire to kill presumed government loyalists.
Applying the substantial evidence test, this evidence “was such
that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” Elias-Zacarias, 502 U.S. at
481; see also Dia, 353 F.3d at 249. We therefore hold that the
BIA’s finding that Konan did not suffer past persecution due to
imputed political opinion is not supported by substantial evidence.5

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2004) (holding that family constitutes a particular social group, and
stating that “our sister circuits that have considered the issue all
appear” to have reached the same conclusion); Thomas v.
Gonzales, 409 F.3d 1177, 1180 (9th Cir. 2005) (holding that family
represents a particular social group), reh’g en banc granted, 382
F.3d 1154; Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993)
(“There can, in fact, be no plainer example of a social group based
on common, identifiable and immutable characteristics than that of
the nuclear family.”).
IV. Conclusion
For the foregoing reasons, we will grant the petition for
review, vacate the IJ’s decision with respect to Konan’s asylum
claims based on imputed political opinion and his status as an
immediate family member of a gendarme, and remand for further
consideration in light of this opinion.

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