January 16, 2014 4th Circuit published opinion

Temu v Holder

Temu sought asylum alleging he was beaten because he was mentally ill by nurses and prison guards in Tanzania. The immigration judge denied asylum, but, granted relief under the convention against torture. The immigration appeals board affirmed. The panel, 2-1, vacated and remanded. The majority held that the board’s opinion was internally contradictory as it ruled Temu was not persecuted for being mentally ill, but, was tortured because he was mentally ill based on the same facts. The majority also held that the board committed legal error in requiring 20/20 visibility rather than social visibility in its analysis of the asylum claim. Here, the majority noted that Tanzanian society regards mentally ill people as a group and also treat them worse than other people. The majority rejected an overinclusiveness exception as this would lead to absurd results inconsistent with 4th circuit precedent particularly cases involving family membership. The majority also held the particularity analysis was legally erroneous as the board looked at the proposed group, bipolar people who behave erratically, characteristic by characteristic instead of as a whole which the correct analytical approach. The majority also held that the board factually erred as to immutability as its own opinion notes bipolar disorder cannot be cured and Temu would not have access to medication to stop his behavior thus contradicting the conclusion that Temu’s behavior can be controlled. The dissent argued that the board properly found the proposed group lacked particularity as “erratic behavior’ is amorphous.

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