NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 19 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IBRAHIM IBSSA MOHAMMED, Nos. 07-73940 and 08-71182
Petitioner, Agency No. A071-772-799
v.
MEMORANDUM*
ERIC HOLDER, Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted on November 6, 2009
San Francisco, California
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, ** District
Judge.
Petitioner Ibrahim Ibssa Mohammed, a citizen of Ethiopia, brings these
consolidated petitions for review of two orders of the Board of Immigration
*
This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Appeals (“BIA”). In the first order, the BIA adopted and affirmed the decision of
the Immigration Judge (“IJ”) concluding that Mohammed’s conviction for
“robbery” under Arizona Revised Statutes § 13-1902 constituted a “particularly
serious crime,” making Mohammed ineligible for asylum and withholding of
removal, and that Mohammed failed to meet his burden for protection under the
Convention Against Torture (“CAT”). Petitioner’s first petition to this court
challenged this decision of the BIA.
Mohammed filed a motion to reopen, alleging, among other things, that he
was incompetent to proceed pro se, and as a result, that the proceedings before the
IJ lacked due process. He also claimed that evidence of his mental illness
undermined the IJ’s determination that he was convicted for a particularly serious
crime. The BIA denied the motion. Petitioner’s second petition to this court
challenged this denial.
We deny the first petition for review. We grant in part the second petition
for review, reversing the denial of the motion to reopen and remanding for a
hearing with all of the now-available evidence relevant to the CAT claim.
First Petition for Review
The court reviews for substantial evidence the factual findings underlying
the agency’s determination that an applicant is not eligible for protection under
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CAT. See, e.g., Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir. 2007). This
standard requires the court “to uphold the BIA’s determination if supported by
‘reasonable, substantial, and probative evidence on the record.’” Id. (citations
omitted). Even if the court might have reached a different conclusion from that
reached by the BIA, it “may not reverse unless [it] determine[s] that any reasonable
factfinder would have been compelled to reach that conclusion.” Lolong v.
Gonzalez, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc).
Here, because the BIA “adopt[ed] and affirm[ed] the decision of the
Immigration Judge,” citing Matter of Burbano, 20 I. &. N. 872, 874 (BIA 1994),
and did not express any disagreement with any aspect of the IJ’s decision, the court
reviews the IJ’s decision. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.
2009). In addition, because the BIA expressly adopted the reasoning of the IJ and
also added some of its own reasoning, this court’s review encompasses both
decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005).
An applicant seeking relief under CAT must “establish that it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R § 1208.16(c)(2); see Nuru, 404 F.3d at 1216. He or she must
show that the treatment he or she will likely suffer rises to the level of “torture.”
Id. at 1217. The regulations define torture as “any act by which severe pain or
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suffering, whether physical or mental, is intentionally inflicted on a person . . . by
or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” Villegas v. Mukasey, 523 F.3d 984,
988 (9th Cir. 2008) (quoting 8 C.F.R. § 1208.18(a)(1)). “[T]o constitute torture, an
act must be specifically intended to inflict severe physical or mental pain or
suffering.” Id. (citing 8 C.F.R. § 1208.18(a)(5)).
The record initially before the IJ and BIA does not compel a conclusion that
Mohammed met his burden for protection under CAT. See Singh-Kaur v. INS, 183
F.3d 1147, 1150 (9th Cir. 1999) (noting that a contrary result is not compelled
where there is “[t]he possibility of drawing two inconsistent conclusions from the
evidence”) (internal quotation marks and citation omitted). Because substantial
evidence supports the conclusions of the IJ and BIA as the record had thus far been
created, the BIA’s order is affirmed. Mohammed’s first petition for review is
denied.
Second Petition for Review
The court reviews the BIA’s denial of a motion to reopen for abuse of
discretion, reversing only if the BIA’s decision is “arbitrary, irrational, or contrary
to law.” See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). The
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BIA’s determination of purely legal questions is reviewed de novo. See Alali-Amin
v. Mukasey, 523 F.3d 1039, 1041 (9th Cir. 2008).
Mohammed’s claim that the BIA abused its discretion in denying reopening
with respect to the “particularly serious crime” determination is without merit. The
court lacks jurisdiction to review the BIA’s discretionary determination of whether
a crime is “particularly serious,” Delgado v. Mukasey, 563 F.3d 863, 871 (9th Cir.
2009), but can “determine whether the BIA applied the correct legal standard in
making its determination,” Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.
2006), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d
1147 (9th Cir. 2008) (en banc); see Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1276
(9th Cir. 2009). Here, the BIA explicitly referred to its prior decision, which
applied the correct legal standard. The BIA’s failure to reiterate its prior analysis
is not “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039
(9th Cir. 2002).
As to Mohammed’s CAT claim, Mohammed presented additional evidence,
including revised declarations from his father, his brother, and an expert, Professor
Ali. The new evidence provides much stronger support for Mohammed’s CAT
claim than the evidence initially before the IJ and BIA. The revised declarations
indicate that Mohammed was a youth member of the Oromo Liberation Front
5
(“OLF”), an opposition group to the ruling party of the Ethiopian government, and
that his father and brother are currently well known among Oromos in Ethiopia as
OLF supporters.
The BIA did not determine whether Mohammed’s proceedings before the IJ
lacked due process, because it denied the motion to reopen on the ground that
Mohammed failed to show prejudice. In doing so, it misstated the legal standard
for prejudice, concluding: “[t]he respondent’s burden is a high one, to show prima
facie that torture is more likely than not. Under these circumstances, the
respondent has not done so and thus has not demonstrated that the result of his
proceedings would have been different in the absence of the deficiencies he
alleges.” The BIA appears to have concluded that because Mohammed had not
demonstrated prima facie eligibility for relief, it follows that he could not have
shown prejudice. Mohammed is not required to show that the outcome “would
have been different” to show prejudice. See Cano-Merida v. INS, 311 F.3d 960,
965 (9th Cir. 2002). The BIA’s conclusion is thus an abuse of discretion, because
it is “contrary to law.” Singh, 295 F.3d at 1039.
Accordingly, we grant in part Mohammed’s second petition for review and
reverse the BIA’s denial of the motion to reopen with respect to the CAT claim.
The BIA is instructed to reopen proceedings to allow a hearing with all of the now-
6
available evidence relevant to Mohammed’s CAT claim. The second petition for
review is denied with respect to Mohammed’s remaining claims.
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