Ali v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANNIF ALI, 
Petitioner,
No. 07-71195
v.
 Agency No.
ERIC H. HOLDER JR., Attorney A070-149-536
General,
Respondent.


JANNIF ALI, 
Petitioner, No. 07-73559
v.
 Agency No.
A070-149-536
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 17, 2011—San Francisco, California

Filed March 18, 2011

Before: Mary M. Schroeder and Sidney R. Thomas,
Circuit Judges, and Lynn S. Adelman, District Judge.*

Opinion by Judge Thomas

*The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for Eastern Wisconsin, Milwaukee, sitting by designation.

3703
3706 ALI v. HOLDER
COUNSEL

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner

Gregory G. Katsas, Acting Assistant Attorney General, Civil
Division, David V. Bernal, Acting Director, Office of Immi-
gration Litigation, Jeffery R. Leist, Attorney, Office of Immi-
gration Litigation, Washington, D.C., for the respondent.

OPINION

THOMAS, Circuit Judge:

Fijian Jannif Ali, a Muslim and ethnic Indian, petitions for
review of agency decisions denying his application for asy-
lum, withholding of removal, relief under the Convention
Against Torture, and his motion to reopen. We grant the peti-
tions for review.

I

In this case, we revisit the “severe mistreatment that [Indo-
Fijians] have suffered in their adopted country.” Gafoor v.
INS, 231 F.3d 645, 647 (9th Cir. 2000), superseded by statute,
Real ID Act of 2005, Pub. L. No. 109-13, as recognized in
Parussimova v. Mukasey, 533 F.3d 1128, 1133 (9th Cir. 2008).1
1
See also Sinha v. Holder, 564 F.3d 1015 (9th Cir. 2009); Kumar v.
Gonzales, 439 F.3d 520 (9th Cir. 2006); Narayan v. Ashcroft, 384 F.3d
1065 (9th Cir. 2004); Faruk v. Ashcroft, 378 F.3d 940 (9th Cir. 2004); Lal
v. INS, 255 F.3d 998 (9th Cir. 2001); Tagaga v. INS, 228 F.3d 1030 (9th
Cir. 2000); Chand v. INS, 222 F.3d 1066 (9th Cir. 2000); Lata v. INS, 204
F.3d 1241 (9th Cir. 2000); Pal v. INS, 204 F.3d 935 (9th Cir. 2000);
Kumar v. INS, 204 F.3d 931 (9th Cir. 2000); Singh v. INS, 134 F.3d 962
(9th Cir. 1998); Prasad v. INS, 101 F.3d 614 (9th Cir. 1996); Surita v.
INS, 95 F.3d 814 (9th Cir. 1996); Singh v. INS, 94 F.3d 1353 (9th Cir.
1996); Prasad v. INS, 47 F.3d 336 (9th Cir. 1995).
 ALI v. HOLDER 3707
In 1987, the Fijian Alliance Party, which had governed Fiji
since independence, lost the general election to the National
Federation Party-Labour Coalition. The new government had
strong support from the Indo-Fijian community. Later that
year, the Royal Fiji Military Forces staged a military coup
with the purpose of “restor[ing] the political dominance of
ethnic Fijians in their home islands.” After the new govern-
ment assumed control, the military staged a second coup in
1987 because it had been excluded from governmental negoti-
ations. Power was then once again handed over from the mili-
tary to civilians in December 1987.

There were reportedly no deaths associated with either
coup, but the police and military dealt harshly with Indo-
Fijians during the coups and their aftermath. Many were
arrested and abused while in custody. Military and police
aside, Indo-Fijians also suffered widespread discrimination,
abuse, and harassment at the hands of ethnic Fijians:

The Department of State received numerous reports
of physical abuse of detainees by the military, some
of whom were forced to run barefoot on blacktop
roads in the hot sun for several kilometers or were
dumped in pit latrines or in the sewage treatment
holding plants. The most horrible reported attacks on
Indo-Fijians include women raped in front of their
children, political opponents brutally beaten, detain-
ees forced to walk naked in the streets while holding
human excrement, people forced to swim in sewage
ponds, and children stripped and beaten for Sunday
curfew violations and forced to rub their noses
against a concrete floor until their noses bled. Ethnic
Fijian youth gangs raided, stoned, and fire bombed
Indo-Fijian homes. In 1989, five Hindu temples were
burned. In October 1990, an Indian school was
burned. Freedom of speech was severely con-
strained, and political meetings and demonstrations
3708 ALI v. HOLDER
banned. Fearing for their safety, roughly 35,000
Indo-Fijians fled the country.

Gafoor, 231 F.3d at 648-49 (citations, alterations, brackets,
and internal quotation marks omitted).

Ali was one of those Indo-Fijians who suffered persecution
in the aftermath of the 1987 coups. He was harassed by Fijian
soldiers while he and other Muslims were at a prayer meeting
in a mosque. He was beaten with the butt of a gun by a Fijian
soldier. His house was vandalized and dynamited by military
forces. Ethnic Fijians routinely threw rocks at his family, car,
and house. His wife was threatened with rape. Ethnic Fijians
threatened to burn his house if he did not move. Ethnic Fijians
stole from his family.

Ali and his family entered the United States on March 4,
1989, on a visitor visa. Two more coups took place after Ali
left—one in 2000 and one in 2006. The 2000 coup was “re-
markably similar to the 1987 coups,” resulting in further
abuse of Indo-Fijians and effectively destroying any improve-
ments that had been made since 1987. Id. at 655. After the
2000 coup, though, Fijians began to enjoy free and fair elec-
tions. However, in December 2006, the military once again
overthrew the government, accusing it of unfairly favoring
ethnic Fijian interests. According to the 2006 State Depart-
ment Country Report for Fiji, “The human rights situation
deteriorated greatly following the [2006] coup.”

II

Ali filed an application for asylum on October 2, 1989. He
was not interviewed by the Government for that application
until nearly 14 years later. Not long after the interview, the
Government initiated removal proceedings against Ali, alleg-
ing that he was subject to removal because he remained in the
United States longer than permitted.
 ALI v. HOLDER 3709
Ali appeared before the immigration judge (“IJ”) on April
15, 2004. He conceded removability and renewed his applica-
tions for asylum, withholding of removal, and relief under the
Convention Against Torture. The IJ determined that Ali
offered credible testimony and that he established “past perse-
cution.” See 8 C.F.R. § 1208.13(b)(1). Because Ali had estab-
lished past persecution, he was entitled to the presumption of
a well-founded fear of persecution if he were to return to Fiji,
and the IJ so found. See 8 C.F.R. § 1208.13(b)(1).

But the IJ concluded the Government had rebutted that pre-
sumption in light of improved country conditions, which were
detailed in the State Department’s 1996 Asylum Profile and
2004 Country Report. The IJ then denied Ali’s request for
relief.

On administrative appeal, the Board of Immigration
Appeals (“BIA”) adopted and affirmed the IJ’s decision under
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994)
(noting that adoption or affirmance of a decision of an IJ, in
whole or in part, is “simply a statement that the Board’s con-
clusions upon review of the record coincide with those which
the immigration judge articulated in his or her decision”). The
BIA held that “[t]he Immigration Judge correctly found that
although the respondent had established past persecution, his
fear of future persecution had been rebutted by changed coun-
try conditions.” The BIA held that, in the absence of that pre-
sumption, Ali had not met his burden of establishing the
elements of his claims for relief. Ali timely petitioned us to
review that decision.

While his petition was pending on appeal, Ali moved the
BIA to reopen his proceedings on May 25, 2007, in light of
new evidence detailing the 2006 coup in Fiji. The BIA denied
his motion on August 7, 2007, concluding that the evidence
was “new, but not material.” Ali timely petitioned us to
review that decision, too. We have jurisdiction to review Ali’s
petitions under 8 U.S.C. § 1252.
3710 ALI v. HOLDER
Where, as here, the BIA cites Burbano and also provides its
own review of the evidence and law, we review both the IJ’s
and the BIA’s decisions. Joseph v. Holder, 600 F.3d 1235,
1239-40 (9th Cir. 2010). We review de novo the BIA’s and
IJ’s determinations of purely legal questions. Hamazaspyan v.
Holder, 590 F.3d 744, 747 (9th Cir. 2009). We review factual
findings, on the other hand, for substantial evidence. Halim v.
Holder, 590 F.3d 971, 975 (9th Cir. 2009). Under the
substantial-evidence standard, “[A]dministrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Id. We will uphold
the agency’s determination “if it is supported by reasonable,
substantial, and probative evidence in the record.” Id. (quot-
ing Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.
2006)). We review the BIA’s denial of a motion to reopen for
abuse of discretion. Garcia v. Holder, 621 F.3d 906, 912 (9th
Cir. 2010). We cannot affirm the BIA or IJ on a ground upon
which it did not rely. Najmabadi v. Holder, 597 F.3d 983, 986
(9th Cir. 2010). In other words, we “must decide whether to
grant or deny the petition for review based on the Board’s [or
IJ’s] reasoning rather than our own independent analysis of
the record.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.
2004).

III

The BIA and IJ correctly afforded Ali the presumption of
a well-founded fear of persecution. But their finding that the
Government had rebutted that presumption is not supported
by substantial evidence because they failed to make an indi-
vidualized determination of how the changed country condi-
tions in Fiji impacted Ali’s specific harms and circumstances.
In addition, the BIA abused its discretion when it denied Ali’s
motion to reopen because it failed to analyze the effect of the
2006 coup on Ali’s presumption of a well-founded fear of
persecution.
 ALI v. HOLDER 3711
A

[1] The petitioner bears the burden of establishing his eli-
gibility for asylum. 8 C.F.R. § 1208.13(a). To satisfy this bur-
den, an alien must show he is “unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of the
protection of, [his country of nationality] because of persecu-
tion or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion.”2 8 U.S.C. § 1101(a)(42).

[2] An alien who has suffered past persecution is presumed
to have a well-founded fear of persecution. 8 C.F.R.
§ 1208.13(b)(1). The Government may rebut that presumption
if it establishes, by a preponderance of the evidence, that (1)
there “has been a fundamental change in circumstances such
that the applicant no longer has a well-founded fear of future
persecution” or (2) “[t]he applicant could avoid future perse-
cution by relocating to another part of the applicant’s country
of nationality . . . .” Id.; see also Hanna v. Keisler, 506 F.3d
933, 938 (9th Cir. 2007) (citing Tawadrus v. Ashcroft, 364
F.3d 1099, 1103 (9th Cir. 2004)). This presumption only
2
An application for asylum is automatically considered a simultaneous
request for withholding of removal. 8 C.F.R. § 1208.3(b). The Attorney
General is required to withhold removal if “the alien’s life or freedom
would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). The elements of an application for withholding
of removal are essentially the same as that of asylum, except the burden
of proof is higher. “To qualify for withholding of removal, an alien must
demonstrate that it is more likely than not that he would be subject to per-
secution on one of the specified grounds.” Robleto-Pastora v. Holder, 591
F.3d 1051, 1057 (9th Cir. 2010) (citations and internal quotation marks
omitted). A showing of past persecution entitles an alien to a presumption
of eligibility for withholding of removal, but the alien bears the burden “to
establish such persecution.” Id. (citing Fedunyak v. Gonzales, 477 F.3d
1126, 1130 (9th Cir. 2007); Unuakhaulu v. Gonzales, 416 F.3d 931,
938-39 (9th Cir. 2005)).
3712 ALI v. HOLDER
applies to fear based on the original claim and not to fear of
persecution from a new source. See 8 C.F.R. § 1208.13(b)(1).

[3] When the Government comes forward with evidence of
changed country conditions tending to rebut the presumption
of a well-founded fear of persecution, the IJ must make an
“individualized determination” of how the changed circum-
stances affect the alien’s specific situation. Marcos v. Gon-
zales, 410 F.3d 1112, 1120-21 (9th Cir. 2005); Smolniakova
v. Gonzales, 422 F.3d 1037, 1051-52 (9th Cir. 2005).

The hallmark of an “individualized determination” is a tai-
lored analysis of the petitioner’s specific harms and circum-
stances. “Where past persecution has been established,
generalized information from a State Department report on
country conditions is not sufficient to rebut the presumption
of future persecution.” Kamalyan v. Holder, 620 F.3d 1054,
1059 (9th Cir. 2010) (citing Molina-Estrada v. INS, 293 F.3d
1089, 1096 (9th Cir. 2002)). To be sure, country reports may
be employed to rebut the presumption, but the IJ and BIA
must apply the findings from the reports to the petitioner’s
specific harms and circumstances. See, e.g., Sowe v. Mukasey,
538 F.3d 1281, 1285 (9th Cir. 2008); Kumar, 204 F.3d 931;
Molina-Estrada, 293 F.3d at 1096 (citing Kumar, 204 F.3d
931); but see Kamalyan, 620 F.3d at 1057 (“[Country reports]
typically are not amenable to an individualized analysis tai-
lored to an asylum applicant’s particular situation.”) (citations
and internal quotations omitted). In Lal v. INS, which
involved an Indo-Fijian petitioner, we observed:

We have long held that the determination of whether
or not a particular applicant’s fear is rebutted by gen-
eral country conditions information requires an indi-
vidualized analysis that focuses on the specific harm
suffered and the relationship of that particular infor-
mation contained in the relevant country reports.

255 F.3d 998, 1010 (9th Cir. 2001) (quoting Chand, 222 F.3d
at 1079).
 ALI v. HOLDER 3713
In Lal, we concluded the BIA had failed to conduct an indi-
vidualized analysis because it relied on broad propositions in
country reports without reference to the specific harms that
the petitioner had suffered. Id. at 1011. We acknowledged that
the reports stated generally there was no evidence of wide-
spread human rights violations in Fiji. Id. But we also
observed that the reports stated that harassment, abuse, and
intimidation of Indo-Fijians continued. Id. We reasoned: “The
fact that such abuses may not have been widespread or may
not have formed a clear pattern does not mean that particular
individuals who have been targeted in the past are safe.” Id.
We went on to hold:

In such a situation, the BIA must ask whether the
INS has shown through record evidence that the
individual who suffered past persecution is among
the general population that is not suffering from a
“sustained pattern” of human rights violations, or
whether the applicant is among the unlucky few who
are most vulnerable to abuse. Such an assessment
must take account of the specific attributes of the
past persecution on record.

Id. (citing Chand, 222 F.3d at 1079).

Looking to the specific circumstances of the petitioner’s
persecution in Lal, we concluded the petitioner might very
well have been one of those individuals “who are most vul-
nerable to abuse.” Id. The petitioner was a well-known oppo-
sition leader, his attacks following the 1987 coup were not
random, and he was placed on a government “blacklist.” Id.
Given the nature of these harms, the general proposition that
conditions were improving for Indo-Fijians did not rebut the
petitioner’s presumption of a well-founded fear of persecu-
tion. Id.

[4] Here, neither the IJ nor the BIA conducted an individu-
alized analysis of the changed country conditions in Fiji with
regard to Ali’s specific circumstances and harms.
3714 ALI v. HOLDER
The IJ based his analysis on two documents: the State
Department’s 1996 Asylum Profile and 2004 Country Report
for Fiji. The Asylum Profile states that, while the police and
military abused Indo-Fijians during the 1987 coups, the State
Department is “unaware of any wide spread abuse as occurred
in 1987.” The more recent 2004 Country Report notes that,
after the last coup attempt in 2000, Fiji has enjoyed free and
fair elections. The Country Report also remarks that Indo-
Fijians “dominate[ ] the business sector and enjoy[ ] higher
average incomes . . . .”

However, the 2004 Country Report also notes there are “se-
rious problems in some areas.” “Tension between ethnic Fiji-
ans and Indo-Fijians has been a longstanding problem . . . .”
Indo-Fijians still face discrimination in the political sector.
And government policies on “hiring, education, and land ten-
ure” tend to discriminate against Indo-Fijians in favor of eth-
nic Fijian interests.

The IJ summarized how conditions have changed since the
1987 coups—which is certainly relevant to Ali’s
circumstances—but, as in Lal and Chand, the IJ did not apply
that analysis to Ali’s specific circumstances. See Lal, 255
F.3d at 1010-11; Chand, 222 F.3d at 1078-80. Instead, he
simply concluded:

What the background information does not support,
is that the Indo-Fijians’ life or freedom is necessarily
at risk in Fiji currently, given the current economic
and political situation in the country as reported by
the State Department of the United States. For the
foregoing reasons, this Court finds that the presump-
tion of persecution has been rebutted by the objec-
tive evidence in the record.

Likewise, the BIA simply concluded, “[W]hile ethnic dis-
crimination remains a serious problem in Fiji, the respondent
has failed to demonstrate that he is at particular risk or that his
 ALI v. HOLDER 3715
predicament is appreciably different from the dangers faced
by his fellow Indo-Fijians.”

[5] In other words, the IJ and the BIA analyzed the general
risks that Indo-Fijians face, but they did not determine
whether Ali “is among the unlucky few who are most vulnera-
ble to abuse.” Lal, 255 F.3d at 1011 (citing Chand, 222 F.3d
at 1079). “Such an assessment must take account of the spe-
cific attributes of the past persecution on record.” Id. (empha-
sis added) (citing Chand, 222 F.3d at 1079). Here, the IJ and
the BIA failed to do that. Among other omissions, they failed
to analyze how the changed country conditions might affect
a person who had been targeted by and suffered persecution
at the hands of the military. Because the agency did not con-
duct an individualized analysis, we must remand the petition
so that the agency may perform such an examination in the
first instance.

B

The BIA abused its discretion when it denied Ali’s motion
to reopen because Ali has a “reasonable likelihood” of meet-
ing the requirements for asylum, based on the 2006 coup in
Fiji. Garcia, 621 F.3d 912.

[6] A motion to reopen must be based on evidence that is
“material and was not available and could not have been dis-
covered or presented at the former hearing.” Id. (quoting 8
C.F.R. § 1003.2(c)(1)) (internal quotation marks and alter-
ations omitted). The motion “will not be granted unless it
establishes a prima facie case for relief.” Id. (citation omit-
ted). “A prima facie case is established when the evidence
reveals a reasonable likelihood that the statutory requirements
for relief have been satisfied.” Id. (citation and internal quota-
tions marks omitted). When the BIA reviews a motion to
reopen, it must show proper consideration of all factors, both
favorable and unfavorable. See Franco-Rosendo v. Gonzales,
454 F.3d 965, 967-68 (9th Cir. 2006).
3716 ALI v. HOLDER
Ali filed his motion to reopen with the BIA based on the
2006 coup in Fiji. In his motion, he discussed how the 2006
coup—the fourth in 19 years—resulted in the overthrow of
the democratically elected government. He argued that the
resulting instability has caused a deterioration in conditions
for Indo-Fijians and destroyed any progress that had been
made since the 2000 coup. Ali attached a number of support-
ing documents, including several news articles detailing the
coup.

The exhibits, and in particular the 2006 State Department
Country Report, support Ali’s motion. The Country Report
reads:

Prior to the [2006] December coup the government
generally respected the human rights of its citizens,
although there were serious problems in some areas.
The human rights situation deteriorated greatly fol-
lowing the coup. . . . [P]roblems during the year
included . . . continuing deep divisions between
indigenous Fijians (55 percent of the population) and
Indo-Fijians (37 percent) . . . . [Moreover,]
[f]ollowing the coup, there were numerous incidents
of the Republic of Fiji Military Forces (RFMF)
detaining without warrant and abusing persons who
had voiced opposition to the coup or who supported
a return to democratic government.

The BIA nevertheless denied Ali’s motion to reopen. The
BIA acknowledged that conditions had changed after it denied
Ali’s petition, but it concluded the changes were not “materi-
al.” It reasoned that Ali had “not shown how the military per-
sons he was persecuted by are connected in any way to the
current military regime or why he has an independently objec-
tive basis for fearing this new regime.”

[7] The BIA abused its discretion, though. Contrary to the
BIA’s conclusion, the evidence “reveals a reasonable likeli-
 ALI v. HOLDER 3717
hood that the statutory requirements for relief have been satis-
fied.” Garcia, 621 F.3d 912. Since Ali had established past
persecution, he enjoyed the presumption of a well-founded
fear of persecution. 8 C.F.R. § 1208.13(b)(1). Thus, when the
BIA analyzed Ali’s motion, it should have considered how the
changed country conditions impacted that presumption. But it
did not.

The new material, detailing the 2006 coup, could have
made it more difficult for the Government to rebut Ali’s pre-
sumption of a well-founded fear of future persecution. Cer-
tainly, there is a “reasonable likelihood” that the Government
could have been unable to do so. Garcia, 621 F.3d at 912. But
the BIA did not consider what effect the 2006 coup had on the
presumption. Nor did it consider any other favorable factors,
such as any similarities between the 1987, 2000, and 2006
coups. Franco-Rosendo, 454 F.3d at 967-68 (holding that
when the BIA reviews a motion to reopen, it must show
proper consideration of all factors, both favorable and unfa-
vorable).

[8] For these reasons, the BIA abused its discretion when
it denied Ali’s motion to reopen. We therefore remand the
petition to the BIA for its re-consideration.

IV

We grant both of Ali’s petitions for review and remand his
case to the BIA for its re-examination. We do not prejudge the
results of the inquiry. We need not, and do not, reach any
other issue urged by the parties on appeal.

PETITIONS GRANTED; REMANDED.