U.S.

Department oI Justice
Executive OIIice Ior Immigration Review
Boara of Immigration Appeals
Office of the Clerk
Pike, Suite 2000
Falls Church, Jirginia 22041
Hoppock, Matthew L, Esq.
Dunn & Davison LLC
1100 WaInut Street, Suite 2900
KANSAS CITY, MO 64106
Office of Chief CounseI - KAN
2345 Grand BIvd., Suite 500
Kansas City, MO 64108
Name: MWAJUMA, NGENDAKUMANA A 089-688-795
Date of this notice: 9/26/2013
Enclosed is a copy oI the Board's decision and order in the above-reIerenced case.
Sincerely,
Donna
ChieI Clerk
Enclosure
Panel Members:
Pauley, Roger
Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: M-N-, AXXX XX8 795 (BIA Sept. 26, 2013)
U.S. Department of 1ustice
Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia
File: A 8 795 - Kansas City, MO Date:
SEP
re: NGENDAKUMANA MWAJUMA
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Matthew L. Hoppock, Esquire
ON BEHALF OF William C. Padish
Assistant ChieI Counsel
CHARGE:
Notice: Sec. 237(a)(1)(B), Act |8 U.S.C. -
In the United States in violation oI law
APPLICATION: Asylum; withholding oI removal; Convention Against Torture
The respondent appeals Irom the Immigration Judge's October 7, decision denying her
application Ior asylum under section 208 oI the Immigration and Nationality Act, 8 U.S.C.
1158, withholding oI removal under section 241(b)(3) oI the Act, 8 U.S.C. 1231(b)(3), and
protection under the Convention Against Torture, and ordering her removed Irom the United
States to Burundi. The record wi l l be remanded Ior Iurther proceedings.
We review the Iindings oI Iact, including the determination oI credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. (d)(3)(i). We
review all other issues, including whether the parties have met the relevant burden oI prooI,
and issues oI discretion, under a de novo standard. 8 C.F.R. Because the
respondent's application Ior relieI (Form was Iiled aIter May 2005, it is subject to
the provisions oI the REAL ID Act oI 2005.
The respondent, a native and citizen oI Burundi, claims that she was persecuted in the past in
Burundi and that she has a well-Iounded Iear oI Iuture persecution based on her ethnicity as a
Batwa, or Pygmy, who represent less than 1 percent oI the population at
The Immigration Judge Iull y credited the respondent's testimony as well as that oI her
witness (I.J. at 7). In addition, he Iound that she has shown through her testimony and
supporting documentary evidence that she suIIered pervasive general and economic
discrimination and harassment in Burundi Ior many years (I.J. at 7, 8). That said, the
Immigration Judge determined that the harm inIlicted on the respondent did not rise to the level
oI past persecution (I.J. at 8). The Immigration Judge noted that harassment and discrimination,
without more, do not constitute persecution (I.J. at 8; Fisher v. INS, 291 F.3d 491, 497 (8th Cir.
2002) (harassment and slurs due to Lutheran Iaith in Ukraine does not amount to persecution).
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Cite as: M-N-, AXXX XX8 795 (BIA Sept. 26, 2013)
A089 688 795
On appeal, the respondent contends that the Immigration Judge did not address the harms
described by the respondent in the aggregate, including being beaten many times, having stones
and sticks thrown at her Irom a young age whenever she would go into town, harassment and
humiliation, an inability to go to school, and economic discrimination (I.J. at Respondent's
BrieI at 7; Tr. at 20, 44, 45, 62). The respondent contends that the Immigration Judge
did not consider the respondent's experiences in the aggregate, and instead examined each
experience by itselI as not rising to the level oI persecution (Respondent's BrieI at 8-10). On
appeal, the respondent contends that Bracic v. Holaer, 603 F.3d (8th Cir. requires a
diIIerent analysis Irom that employed by the Immigration Judge in determining whether the
respondent was persecuted in the past. We agree that it is not clear that the Immigration Judge
considered all oI the incidents in the aggregate as required. In addition, while the Immigration
Judge relied on Fisher in Iinding that the respondent was not subjected to past persecution, we
note that the court in Fisher also noted that in Matter of & I-Z-, 22 Dec. 23, 26
the Board Iound that where the respondent and his Iamily were subjected to repeated
physical violence, such incidents in the aggregate rose to the level oI persecution.
Inasmuch as the Immigration Judge did not initially determine, in the aggregate, whether the
respondent was persecuted in the past, we are remanding the record Ior inclusion oI an
appropriate decision by the Immigration Judge. We note that our decision to remand this matter
is tied to a deIiciency in the Immigration Judge's decision and should not necessarily be read to
indicate disagreement with the Immigration Judge's ultimate resolution oI the respondent's
applications Ior relieI.
Accordingly, we issue the Iollowing order.
ORDER: The record is remanded to the Immigration Court Ior Iurther proceedings and Ior
the issuance oI a new decision consistent with this opinion.
2
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Cite as: M-N-, AXXX XX8 795 (BIA Sept. 26, 2013)