Marrogi v. Holder

FILED
NOT FOR PUBLICATION APR 14 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SUHAM POLIS MARROGI, a.k.a. No. 05-72641
Stagkouri Mandela Georgios,
Agency No. A078-542-175
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 5, 2010 **

Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

Suham Polis Marrogi, a native and citizen of Iraq, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) denial of her application for asylum, withholding of

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and

review for substantial evidence factual determinations. See Husyev v. Mukasey,

528 F.3d 1172, 1177 (9th Cir. 2008). We grant the petition for review and remand.

The BIA assumed Marrogi established past persecution on account of her

Chaldean Christian identity, but held changed circumstances in Iraq, namely the

fall of the Ba’ath party, rebutted her presumption of future fear. After the BIA’s

decision, this court issued two decisions involving Chaldean Christians from Iraq,

in which the court concluded that the evidence regarding the fall of Saddam

Hussein and the Ba’ath party did not provide the agency with a basis to conclude

that petitioners no longer feared religious persecution. See Hanna v. Keisler, 506

F.3d 933, 938 (9th Cir. 2007); Mousa v. Mukasey, 530 F.3d 1025, 1030 (9th Cir.

2008). Because, here, the government failed to make a sufficient showing

regarding “whether [Marrogi] would likely fear religious persecution from others

in post-Saddam Hussein Iraq,” we remand Marrogi’s asylum and withholding

claims for further consideration of this issue. Hanna, 506 F.3d at 938; see also

Mousa, 530 F.3d at 1030. Upon remand, the Board may wish to consider whether

Marrogi’s fear of future persecution is objectively reasonable in light of the current

conditions in Iraq. See Hanna, 506 F.3d at 939.

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 We also remand because the BIA failed to consider in the first instance

whether Marrogi should receive humanitarian asylum on the ground that there

exists a “reasonable possibility” she may “suffer other serious harm” if removed to

Iraq. See Hanna, 506 F.3d at 939 (stating petitioner appeared to qualify for

humanitarian asylum based on the likely future harm he would suffer as a Christian

in Iraq, but remanding for the BIA to consider the issue in the first instance); see

also Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (BIA is not free to

ignore arguments raised by a party).

Finally, Marrogi contends that her statutory right to counsel and her due

process rights were violated by the IJ’s decision to proceed with a hearing when

counsel failed to appear, and by the IJ’s bias at subsequent hearings when counsel

was present. In light of our remand, we do not reach these issues.

In light of our conclusions, we also remand Marrogi’s CAT claim.

PETITION FOR REVIEW GRANTED; REMANDED.

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