*1 ALMAGHZAR, Petitioner- R. Abdul
Appellant, Attorney GONZALES, R.
Alberto
General, Respondent-
Appellee.
No. 04-35863. Appeals, Court of
United States Circuit.
Ninth Sept.
Argued Submitted 8, 2006.
Filed June 3, 2006. Aug.
Amended *2 Pоrtland, OR, must that he or she Smith, for An establish alien Philip James partic- tortured on account of a Almaghzar. R. would be Abdul petitioner-appellant or immutable characteristic. ular belief Bauman, Assistant United Kenneth C. Kamalthas, 251 at 1283. Because Portland, OR, respon- Attorney, States *3 determination, this a factual sub- Gonzales, Attorney Alberto dent-appellee governs our evidence test re- stantial General. Monjaraz-Munoz, F.3d at view. 327 The sentence of that is paragraph second deleted, and the citation Kamalthas is citation to C.F.R. moved to follow the 8 208.16(c)(2), § the final paragraph so that FISHER, RAYMOND C. Before begins now as follows: GOULD, T. M. and CARLOS RONALD CAT, protection To receive the of the BEA, Judges. Circuit likely it prove alien must that is more than alien would be tortured AND OPINION AMENDING ORDER 208.16(c)(2); if removed. 8 C.F.R. AMENDED OPINION Kamalthas, 251 F.3d 1283. Because GOULD, Judge. Circuit determination, the sub this is a factual governs our re stantial evidence test ORDER Monjaraz-Munoz, F.3d at view. 327 Unopposed Request Respondent’s GRANT Decision Modification IT IS ORDERED. SO 2006, 8, filed on June opinion ED. (9th 415 Cir. at 450 F.3d and published OPINION
2006), follows. is AMENDED as first opinion, 422 of page On Abdul Petitioner-Appellant “B. The subheading paragraph under (Almaghzar), a native and citi- begins Claim” Almaghzar’s Merits Yemen, appeals the district court’s zen of follows: for a of habeas petition of his writ denial CAT, petition as a corpus. construe We protection To receive timely for review of deci- likely petition filed that it is more prove alien must Immigration Appeals Board sion of the be tortured than not that alien would (BIA).1 208.16(c)(2). con- petition Almaghzar In his 8 if removed. C.F.R. peti- requires that all habeas 1052. The Act petition habeas filed his 1. After court, at the pending the district courts court tions before the district district after to the circuit be transferred petition, Congress enact time of enactment denied courts, peti- it is silent about how habeas 109- but Act of Pub.L. No. ed the REAL ID 106(a) appeal pending cir- tions then of that Act 119 Stat. 231. Section at 1053. In should be treated. Id. judicial cuit courts circuit courts the 'sole' makes "the peti- Alvarez-Barajas such we held challenges to orders bоdy able review final exclusion, as if it were tion be construed removal.” Alva "should deportation, Gonzales, with this timely petition for review filed rez-Barajas precedent, we con- (9th Cir.2005). Applying this court.” Id. ID Act eliminates REAL pro- procedural the substantive jurisdiction clude that 28 U.S.C. habeas under exclusion, Almagh- govern the REAL ID Act deportation, visions of over final orders Alvarez-Barajas, zar's claims. and removal. (1) asylum applica- tends that the frivolous Almagh- Sometime between 1994 and 1998 erroneously applied Oregon.4 tion bar April to his zar moved to of 1997 he (2) Immigra- application, adjust- that the married a U.S. citizen and filed an (IJ) Judge incorrectly tion disregarded application. mеnt Almaghzar’s ap- Before explained discrepancies plication processed marriage could (3) dissolved, testimony, 1998 the initiated INS present was not a claim proceedings against allowed under removal (CAT),2 Against the Convention Torture Portland. At a before the IJ on (4) 13, 1998, Almaghzar’s hearing September agreed violated his right original under the Fifth submit his application, *4 (5) Amendment,3 California, the in pending and that IJ erred which was then still in concluding prior Immigration that two in Oregon. Court criminal particularly parties convictions were seri- disagree whether this submission opinion ous crimes. In its reasoned the application asylum, was new for or was a rejected these arguments, and we transfer of then-pending ap- affirm. plication. 13, 1998, On November the IJ denied
I Almaghzar’s application for and Almaghzar arrived in the United States withholding of removal because the IJ from Yemen of Almaghzar credible, November 1992. found that was not Almaghzar a Request Asylum filed for dat- and the IJ Almaghzar ordered removed ed gave Further, December in which he an Yemen. the IJ found that Anaheim, California, asy- Almaghzar address. his had filed a frivolous application, lum Almaghzar that, result, stated that application and as a he was perse- forced return to Yemen he “permanently ineligible feared for benefits” pro-Communist cution from Immigration forces there. Nationality under and Immigration 1158(d)(6). аnd Naturalization Ser- Act. 8 U.S.C. The IJ found (INS) vice Almaghzar’s application credible, denied Almaghzar that was part of March 1994. Thereafter because had told two different counsel, retained and his case re- was tales about his treatment Yemen.5 At opened and pending decision, remained until 1998. the time of the IJ’s relief under 2. Against Convention and discrepancies Torture Other Cru- 5.The his need between stories el, Degrading recounted, Inhuman or Treatment or Pun- because does ishment, 10, 1984, Treaty Dec. S. No. Doc. argue determining the IJ that erred in (1988), 100-20 1465 U.N.T.S. were point stories inconsistent to the they were not credible. Nor does he reads, 3. The Fifth Amendment relevant contend that translation errors caused life, part, person deprived "No shall ... be Although Almaghzar inconsistencies. testi- liberty, property, without hearing fied his second claimed and V. law....” U.S. Const. amend. the BIA that transcript his affidavit and the Almagh- errors, 4. The record does not hearing indicate when first contained translation Oregon. Request zar moved to for His 1992 press appeal. he does not this claim on Rath- Anaheim, address, Asylum listed an California er, argues he at a later adjustment application Givi, by psychologist, Dr. a licensed clinical filed after he married U.S. citizen is not in explains the inconsistencies. record, and the does not record tell us where lived between large “a Amaghzar, served conducted because Con- not available assessments,” provi- yet implemented and reviewed had not number
gress return of prohibiting attorney, in- Amaghzar’s sions documents from they be in countries where would aliens to cluding Amaghzar’s pre-hearing state- suffering torture.6 danger of ment, Asylum, Request for his affida- IJ, vit, the oral decision of the the IJ’s decision to Amaghzar appealed on to the BIA. Amaghzar’s appeal brief BIA, pending his case was on but while charged the United he was appeal Amaghzar Dr. Givi testified that suf- fraudulently trad- with one count of States post-traumatic from stress disorder fered methamphetamine stamps food stemming imprisonment and torture from 2024(b) and with of 7 U.S.C. violation from abusе Yemen and sexual suffered intentionally knowingly one count young Dr. also testified that age. Givi in violation distributing methamphetamine disorder often im- post-traumatic stress 841(a)(1).7 guilty pled He of 21 U.S.C. ability to concen- pairs memory 27, 2000, and on July charges to both trate, symptoms explained and that these 2, 2000, was sentenced Amaghzar October Amaghzar’s prior inconsistencies in prison. thirty-seven months in federal *5 testimony. Athough Dr. Givi was aware he his sentence was released serving After distributing for Amaghzar’s of conviction detained custody into of the INS and methamphetamine, Dr. Givi was aware 1226(c)(1)(B).8 § The pursuant 8 U.S.C. Amaghzar’s stamp of conviction for food Amaghzar had the BIA that INS notified reason, disregarded For this the IJ fraud. of metham- been convicted of distribution concluding testimony, Dr. Givi’s the BIA construed this phetamine, and his in Amaghzar’s fraud conviction for role IJ, to the request as a for remand notice enterprise in he complex a criminal which granted. which the BIA for methamphetamine sold food had IJ, proceed- had last conducted The who Dr. with stamps was inconsistent Givi’s 1998, in November then ings in case Amaghzar incapable of opinion that 30, on June 2003. another held thinking. complex, non-linear Givi, Dr. a Amaghzar called a witness offered hearing Amaghzar At the same in an effort psychologist, licensed clinical claim, in- his CAT support in of evidence Amaghzar’s earlier testimo- rehabilitate reports detailing that torture does cluding by the IJ. Dr. ny that had been discredited Amaghzar also testified occur Yemen. for that as the basis his explained Givi of his hearing, offering an account and ob- testimony had interviewed he 29, 2000, perseding filed on June information 6. United States ratified 1994. Attorney charged Almaghzar with 3 U.S. Congress implemented Article of the CAT on 21, 1998, using benefit authoriza- Foreign count of a food Affairs one October with delivery of Restructuring card connection with the tion Act 1998. Reform 105-277, 2242, 7 methamphetamine violation of U.S.C. § No. Stat. 2681- Pub.L. 112 note). 2023(b), distributing (codified § with count of § one at 8 U.S.C. 822 1231 methamphetamine U.S.C. in violation 2000, indictment, 1, 841(a)(1). March filed § using charged three counts part, provides, relevant "The statute in a 8. This bеnefit authorization card man- "a food any Attorney custody take shall into three counts General law” and ner not authorized deportable by reason of hav intentionally distribuí[ing] who ... is "unlawfully alien any covered section committed offense methamphetamine, a II controlled schedule (D).” (B), (C), substance, 1227(a)(2)(A)(ii), (A)(iii), or violation of Title United 1226(c)(1)(B). 841(a)(1).” § Code, su- U.S.C. States Section bar, 1158(d)(6), from application activities in Yemen differed both id. renders permanently ineligible an alien for immi- AJmaghzar’s affidavit his asylum if or gration appli- benefits her hearing. Almagh- first The IJ denied knowingly cation is found to be frivolous. asylum for and for request zar’s withhold- removal, requires The statute appli- ing of found had consequences cant receive notice of the asylum, for application filed frivolous filing application. Id. frivolous found that had no valid claim 1158(d)(4)(A).9 regulations Under CAT, and ordered under the implementing asylum applica- the frivolous Almaghzar appealed Yemen. removed to bar, application tion is “if frivolous BIA, to the which affirmed the IJ’s deci- deliberately of its material elements is fa- sion. regula- bricated.” 8 C.F.R. 1208.20.The require finding tions that a of frivolousness II “only immigration or judge made review, a petition On applicant, the Board is satisfied that the regarding legal BIA’s decisions purely during proceedings, the course of the novo, questions “giving are de reviewed opportunity had sufficient to account for deference to the BIA’s interpretation un any discrepancies implausible aspects interpretation contrary is less claim.” appli- Id. The frivolous plain meaning and sensible of the statute.” applies asylum applications cation bar Ashcroft, Simeonov v. April filed or after Id. Cir.2004). (9th regarding BIA decisions challenge does substan- eligible alien for asylum whether an asylum applica- tive determination that his *6 supported by must affirmed substan Rather, that, argues tion was frivolous. he Gonzales, tial v. evidence. Karouni 399 1992, filed in application because he his (9th Cir.2005). 1163, F.3d 1170 re “We asylum application frivolous bar does fact, findings including of view the BIA’s apply to him. The parties dispute wheth- credibility findings, for substantial evi er, in submitting application his uphold finding dence and must the BIA’s 1998, Immigration Court in in Oregon compels contrary unless the evidence Almaghzar application filed a new or in- INS, Monjaraz-Munoz result.” v. 327 application stead transferred his that was (9th Cir.2003). 892, F.3d Congress 895 pending then California. has codified this deferential standard seeking judicial Aliens review of a final 1252(b)(4)(B) review. See 8 U.S.C. all order removal must first exhaust (“[T]he of fact findings administrative are available administrative remedies. 8 adjudica conclusive unless reasonable 1252(d)(1). IJ, U.S.C. While before the tor compelled would be to conclude the Almaghzar never claimed have filed his contrary.”). asylum application before frivolous asylum application took effect—not bar III even when the IJ warned him about the We first address asylum application potential frivolous bar’s whether, challenge to the determination that applicability IJ’s and asked notwith- asylum ap risk, application standing proceed the frivolous bar he wanted plied case. The frivolous with his Nor application. Almaghzar did dispute asylum application required by does not that he received 8 U.S.C. 1158(d)(4)(A). consequences filing notice of the frivolous
921 challenged logical Almaghzar, Almagh- he evaluation of timing when raise the issue presented before the reports desсribing bar zar several application the IJ’s Yemen, hold that Accordingly, we torture in BIA. testified filed his claim that he length not exhausted at about the inconsistencies his the frivolous application Yemen, his testimony, his prior activities effect, and we took decline application bar asylum application. and his Because this claim. to review present was allowed to evi- claim, CAT be- regarding dence IV Almaghzar’s presentation cause was not do address whether frivolous We any meaningful respect, re- limited we precludes a claim asylum application bar ject Almaghzar’s process claim. that was not under the CAT because the BIA de- upon the IJ and basis which Almaghzar’s second claim is that claim. CAT nied relief right to due violated when process was II), Corp. (Chenery Chenery SEC v. See IJ allowed the de adverse L.Ed. 67 S.Ct. 332 U.S. termination dictate the outcome (1947) (“[A] court, reviewing in deal- INS, claim. Under Kamalthas CAT judgment with a determination or (9th Cir.2001), claims under agency an administrative alone which analytically separate ap CAT are from make, must judge propri- authorized to plication asylum. Id. 1283. The solely by grounds ety of such action court held that the BIA abused Kamalthas Instead, re- agency.”). we invoked reopen it refused to its discretion when determination view the BIA’s case, presented Kamalthas’s which a new did, fact, opportuni- have claim, asylum ap Kamalthas’s when claim, a CAT and its determi- ty present previously had denied be plication been Almaghzar’s CAT claim lacked nation that cause Kamalthas was found credible. Almaghzar contends that both merit. of a Id. 1280. Because the elements error, arguing these conclusions are claim are from claim for different by due plagued Ms second that the asylum, the Kamalthas court held violations and that the substantive *7 relying previous in on its ad BIA erred to that he not entitled determination was credibility re verse determination incorrect. address these CAT relief is We documentary fusing to consider evidence in turn. arguments Lanka, Sri in Kamalthas’s native torture оpportunity to denying Almaghzar’s thus Kamalthas Claims A. Due Process facie Id. at 1284. prima make a case. vari- Almaghzar claims that he suffered process rights due violations his ous Here, no of consider- there was denial the IJ. during hearing his second documentary evidence. ation of Almaghzar’s each conten- address We informa- Almaghzar presented additional tions below. claim, including supporting tion his First, rights human reports detailing abuses Almaghzar asserts ap- that an requires presenting from Yemen. Kamalthas prevented IJ make opportunity to given support plicant his claim under evidence to However, introducing docu- hear claim under the CAT transcript CAT. torture, but neither mentary evidence was allowed shows requires an process nor due IJ support of his CAT Kamalthas present evidence grant relief rely on that evidence his psycho- claim. Dr. Givi testified about is not applicant when the credible. Fur- ment that he considered all the evidence ther, specifically the IJ said that “[t]he before him. evidence, Court has considered all of the Finally, Almaghzar claims that the IJ testimonial, documentary and whether or hearing conducted second in partisan here,”
not I specifically mention it
and the
matter. He compares the IJ’s conduct
IJ concluded that there was “no basis to
during
to that of
the IJ
Against
find a Convention
Torture claim.”
INS,
(9th
Colmеnar v.
does compel the conclusion that Dr. zar’s rights during the second credible, Givi’s and we hearing. will negative therefore not reverse the IJ’s
credibility determination. B. The Merits of
Fourth, Almaghzar claims that the Claim IJ did not documentary consider the evi dence of torture Yemen. IJ did protection To receive specifically the documentary discuss evi CAT, an alien prove must that it is morе decision, dence in his apart oral from likely than not that the alien would be general statement that he had considered tortured removed. 8 C.F.R. all documentary evidence, and testimonial 208.16(c)(2); Kamalthas, 251 F.3d at whether or not discussed. at *8 1283. Because this is a factual determina tacks this as “boilerplate” language, argu tion, the substantial evidence governs test ing that the evidence should have received our Monjaraz-Munoz, review. “individualized required consideration” as at 895. The evidence supporting Almagh 1208.16(c)(3). by § 8 C.F.R. That regula zar’s claim is his testimony discredited and tion, however, does not require IJ’s general reports indicating that oc torture to every piece evidence; decision discuss curs in Yemen. Almaghzar’s Because tes it requires only the that IJ consider all timony credible, found 1208.16(c)(3). was not to reverse evidence. Id. Because the there no BIA’s decision we is evidence that the would have to find IJ failed to that Almaghzar’s documentary consider the reports compelled evi alone con the dence, we the accept general IJ’s state- clusion Almaghzar that is more than likely reports hearing partisan, adversarial manner. the Although
not to tortured.10 Yemen, section, place previous takes the torture As confirm that discussed that the conclusion they compel not present do was allowed to the tes- if returned. would be tortured Givi, ability Dr. timony Almaghzar’s and Therefore, to the IJ BIA’s we defer any present impaired evidence was the CAT is that relief under determination way, and the IJ conducted the in a unavailable.11 reject Almaghzar’s due fair manner. We process challenge to IJ’s determination
Y particularly that crimes were jurisdiction to re are without We serious. that the IJ erred Almaghzar’s claim
view felony con concluding that VI serious particularly victions constituted withholding him from that bar crimes this present fails to court jurisdic have court shall “[N]o removal. compels the conclusion with evidence final of removal review order tion to finding BIA that the IJ and erred by is rea an аlien who removable against not credible. Almaghzar and Dr. Givi were offense having committed criminal son of Furthermore, Almaghzar’s process due 1182(a)(2)....” 8 U.S.C. in section covered merit, as it is clear on claims are without 1252(a)(2)(C). opportunity ample that he had record Nevertheless, may claims review we claims, present his rights constitutional applicant’s that an Accordingly, not biased. that the IJ was 1252(a)(2)(D). Id. were violated. petition in habeas treating Almaghzar’s Fifth Amend- argues that his petition court as a for review district violated was right ment decision, agree we with denial Dr. Givi’s testi- disregarded when the IJ BIA, petition relief testify mony, permit Almaghzar did hereby review is denied. surrounding his the circumstances about DENIED. REVIEW conviction, PETITION FOR and conducted criminal curiam), (2002) Mandaville, (per Gon professor L.Ed.2d His- E. Jon - -, Thomas, 126 S.Ct. U.S. tory Department and Middle East Studies zales curiam), (2006) University, (per State testified 164 L.Ed.2d Center Portland we are claims that decid the district court that the dissent because upon Almaghzar's return Yem- in the first in likely to be tortured CAT claim BIA deci- we now review the en. Because stance. decision, sion, district it than the court rather require we remand Ventura and Thomas testimony is questionable this whether yet agency considered when However, assuming with- properly before us. 1615; Thomas, Ventu 126 S.Ct. at See issue. us, deciding is before out ra, 353. But we U.S. at 123 S.Ct. unhelpful. Mandaville we it Professor find decided the the IJ and BIA hold that here explicitly his conclusion that conditioned claim, Almaghzar’s CAT merits upon likely Almaghzar is to be tortured country reports condition benefit of the Almaghzar's assumption on the return *9 evidence, and the into introduced truthful, the IJ found which considered all generally that he had IJ said not to be the case. re Ventura nor Thomas Neither evidence. agency the quire an to to remand issue us argues that we should remand 11. The dissent agency already considered the when the to INS Almaghzar’s claim the BIA under CAT 12, 353, Ventura, issue. 123 S.Ct. 154 v. 537 U.S. 924
FISHER,
251
Judge, concurring
passage particular
in
F.3d at 1283. In a
Circuit
part:
in
part
dissenting
and
ly relevant
to the IJ’s treatment
claim,
Almaghzar’s CAT
Kamalthas stated
(IJ)
immigration judge
Both the
and the
are not comfortable with allow
“[w]e
(BIA)
Appeals
Immigration
com-
Board
ing
negative
a
in
determination
adjudi-
pletely ignored our standards for
(CAT)
asylum
the
context wash
Against Torture
to
over the tor
cating Convention
INS,
explicated
as
Kamalthas v.
(quoting
claims
ture claim....”
Id. at 1284
Mans
(9th Cir.2001).
INS,
(7th
they thought him to be not credible
it requires only
based
that the IJ consid-
922.)
asylum-related testimony.
on
That is
(Op.
er all evidence.”
at
I find this
enough, per
not
Kamalthas.
argument unpersuasive and inconsistent
context,
with our
case law. In the
“[bjeeause
majority reasons that
§
8
a
plays
analogous
C.F.R.
1208.13
role
present
Almaghzar was allowed to
evi-
1208.16(c)
§
to that of 8 C.F.R.
in the CAT
claim,
regarding
dence
and be-
context; both elaborate
for the
procedures
Almaghzar’s presentation
cause
respective claims for
just
relief. And
like
in any meaningful respect,
limited
re-we
1208.16(c),
§
§
1208.13
its terms does
ject Almaghzar’s
(Op.
claim.”
require
“an
IJ’s decision ... dis-
921.)
at
But
is a
there
difference between
every piece
cuss
(Op.
evidence.”4
merely allowing
presented
evidence to be
922.) Yet
court
repeatedly
this
held
actually considering
and
it. This distinc-
context,
tion animates
for reviewing
the rationale
an
BIA
legitimate
[t]he
IJ’s decision when
BIA
must have a
affirms
articu-
question
opinion
petitioner’s
without
no BIA
lable basis to
is
reason-
—there
credibility,
ing
us to
a specific,
for
review
such cases.
must offer
co-
Cf.
INS,
gent reason for any
Garrovillas v.
156 F.3d
1013
stated disbelief.
(9th Cir.1998) (“The
Furthermore, any such
opinion,
BIA’s
reasons must be
howev-
er,
legitimate
cannot be
substantial and bear
boilerplate,
mere
and must
a
nexus
finding.
particularity
describe
sufficient
Generalized statements
clarity
identify
that do not
asylum.”)
specific
reasons
denial of
examples
(internal
omitted).
quotations
peti-
evasiveness or contrаdiction in
Indeed
case,
testimony prevent
there
no BIA
tioner’s
reasoning
is
for us
us from con-
ducting a
Amaghzar’s
claim,
proper
to review on
review.
reasoning
solely
IJ’s
CAT consists
Garrovillas,
(internal
they everything they considered le- were nation sufficient enable us as a review gally obligated to consider.3 heard, court to see the Board has
Next,
rejects
decided.”) (internal
the majority
considered, and
cita
argument regarding
omitted).
use of
quotation
IJ’s
boiler-
tions and
marks
plate
language
because
“8
majority gives
C.F.R.
no
why
reasons
a CAT
1208.16(c)(3)
§
...
require
does not
claim denial should be treated with so
every piece
IJ’s decision to discuss
of evi- much
taking the IJ at his word
deference —
contexts,
fact,
quite
we
§
In other
have been
appear
clear
1208.13 does not
to in-
analogue
1208.16(c)(3)’s
clude an
considering
di-
that there is a distinction between
pos-
rective
"all evidence relevant to the
something
merely stating
a conclusion.
sibility of future torture
shall
considered.”
See,
Howell,
e.g., United
States
However, the REAL ID
of 8
Act's revision
615, 621,
(9th Cir.2000) ("[I]n making
1158(b)(1)
U.S.C
now instructs the trier of
newly
decision on
whether
consider
offered
asylum proceedings
fact in
"consider!]
evidence,
actually
the district court must
exer-
totality
making
of the circumstances” when
discretion,
summarily
cise its
rather
ac-
titan
determination.
U.S.C
motion.'').
cepting
denying
1158(b)(l)(B)(iii) (2006).
*12
(internal
Arrozal,
at
432-33
cita-
all the evidence—while
he considered
that
omitted)
(emphasis
and quotations
tions
asylum claim is scrutinized
an
the denial of
no
original).
longer
This is
issue
text of
cogent
The
specific,
reasons.
for
majority
by
impression, and the
errs
first
justify
does not
respective regulations
the
es-
ignoring the CAT standard
review
result.
divergent
this
by
tablished Kamalthas.
“[bjecause
also
that
majority
The
states
that
majority
concludes
“neither
failed to
that the IJ
there is no evidence
process requires
nor due
an IJ
Kamalthas
documentary evi-
consider
rely
grant
on that
to
relief
to
evidence
dence,
general state-
accept the IJ’s
we
credible,” (op.
the
at
applicant
when
all the evidence
ment that he considered
“[bjecause
922), and
Almaghzar’s testimo-
922.) But
if we
(Op. at
even
before him.”
credible, to
the
ny was found not
reverse
that he
cursory statement
credit the IJ’s
BIA’s
we would have
find that
decision
evidence,
all
docu-
had
of the
“considered
reports
compelled
the
alone
the conclusion
testimonial,
or not
mentary and
whether
likely
is more
than not
mention[edj” in
opinion,
specifically
...
922-23).
(op. at
Such conclu-
be tortured”
satisfy the stan-
does not
statement
point
miss the
Kamalthas. Under
sions
for
claims established
dard
review
Kamalthas,
must
whether the
inquire
we
rejections
Boilerplate
in Kamalthas.
of an
BIA treated a CAT claim as
subset
legally
are not
sufficient.
CAT claims
the
asylum
permitted
claim and
adverse
credibility finding
asylum
claim
the abuse
explicitly imported
Kamalthas
claim,
the CAT
or whether
“wash over”
deporta
standard from the
of discretion
separate legal
BIA
treated
removal)
(now
into consider
tion
context
for
evidence
basis
relief
reevaluated
claims: “we vacate
ations of CAT
may
also
relevant
in the
have
been
that ‘the
ground
on the
Board’s decision
context, including
applicant’s
its
it failed
BIA
discretion when
abuse[d]
credibility,
light of
distinct standard
proper
show
con
to state its reasons and
by
See 251 F.3d
for relief mandated
CAT.
eq
weighing
when
sideration of all factors
majority
1283-84. The
commits
relief,’
denying
and remand
uities and
BIA
in Kamal-
error the
committed
same
consistent with this
proceedings
further
recognize that there is
thas —it fails to
(quoting Arro
U.S. -, 126 S.Ct. L.Ed.2d 358
(2006) curiam) (same). (per We do not country
know the BIA would treat the how case, torture in
conditions evidence of *13 (or how)
and we do not know whether would reevaluate ad
verse asy determination light
lum context in the evidence of Therefore,
torture in Yemen. under Ka pursuant
malthas and to the giv direction particular by
en this court in the Su Thomas,
preme Court in Ventura
prudent course would be us to remand
the CAT claim BIA so that it can ruling
make a reasoned the first in remand,
stance. On the BIA should be
instructed not import adverse credi
bility the asylum determination from con to Almaghzar’s
text CAT claim and to country
consider Yemeni explic conditions
itly Arrozal, specificity.” “with
F.3d at 433.
I respectfully dissent therefore from the
majority’s respect decision
Almaghzar’s claim for relief under CAT. America,
UNITED STATES
Plaintiff-Appellee,
Sergio MANZO-JURADO,
Defendant-Appellant.
No. 05-30186. Appeals,
United States Court
Ninth Circuit.
Argued April and Submitted 2006.
Filed June July
Amended