FILED
NOT FOR PUBLICATION FEB 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
PARWIN RAHMATI; et al., No. 05-73868
Petitioners, Agency Nos. A074-184-114
A075-521-621
v. A075-521-622
ERIC H. HOLDER Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2010**
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, *** District
Judge.
Parwin Rahmati, and Mohammad Rabi Rahmati, natives and citizens of
Afghanistan, and their daughter Mishal Rahmati, native and citizen of Germany,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
petition for review of the Board of Immigration Appeals' ('BIA') summary
affirmance without opinion of the Immigration Judge's ('IJ') order denying
asylum, withholding of removal, and relief under the Convention Against Torture
('CAT'). We grant the petition in part and deny it in part. Because the parties are
familiar with the factual and procedural history of this case, we need not recount it
here.
I
Substantial evidence supports the agency's conclusion that the petitioners
had firmly resettled in Germany and are therefore not eligible for asylum. 8 U.S.C.
y 1158(b)(2)(A)(vi). Pursuant to regulation, '[a]n alien is considered to be firmly
resettled if, prior to arrival in the United States, he or she entered into another
country with, or while in that country received, an offer of permanent resident
status, citizenship, or some other type of permanent resettlement.' 8 C.F.R. y
1208.15.
Petitioner conceded she could have received lawful permanent resident
status in Germany through her husband if she had merely applied. The availability
of permanent resident status in another country is sufficient to constitute an offer
under the applicable regulations. Maharaj v. Gonzales, 450 F.3d 961, 977 (9th Cir.
2006) (en banc). That petitioners did not feel safe in Germany is not relevant to
2
the calculation, given that they did not apply for asylum from Germany, only from
Afghanistan. In addition, the later cancellation of petitioner's status by Germany
after she allowed her travel documents to expire by overstaying her time in the
United States does not undermine such a finding. Id. at 969. Therefore, we must
deny the petition for review of the agency's denial of asylum.
II
Firm resettlement in another country does not preclude an application for
withholding of removal. See Siong v. INS, 376 F.3d 1030, 1041 (9th Cir. 2004).
The IJ rejected the application for withholding, but provided no meaningful
analysis supporting his conclusion. '[T]he BIA abuses its discretion when it fails
to provide a reasoned explanation for its actions.' Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005). 'Immigration judges, although given significant
discretion, cannot reach their decisions capriciously and must indicate how they
weighed factors involved and how they arrived at their conclusion.' Sagaydaµ v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (internal quotation marµs and
alternation omitted). An IJ must address the actual arguments made by an
applicant. Id.
Further, if the BIA or IJ relies on a State Department Country Reports to
deny an application, the analysis must include an individualized determination of
3
how the changed conditions described in the report will affect petitioner's specific
situation. Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir. 2005).
Because the IJ's decision lacµs a reasoned explanation of the withholding
decision and fails to acµnowledge the actual arguments made by the petitioner, we
must grant the petition for review on the withholding claim, and remand for further
proceedings consistent with this decision.
III
Substantial evidence supports the agency's decision on Petitioners also
moved for relief under the CAT. In order to be eligible for withholding of removal
under the CAT, the applicant has the burden of establishing that if removed to the
proposed country of removal 'he is more liµely than not to suffer intentionally-
inflicted cruel and inhuman treatment.' Nuru v. Gonzales, 404 F.3d 1207, 1221
(9th Cir. 2005). An applicant must demonstrate a chance greater than fifty percent
that she will be tortured in removed. Id. Substantial evidence in the record
supports the IJ's conclusion that the petitioners had not satisfied their burden of
proof. Although the record contains evidence of violence against women, the
record does not compel the conclusion that petitioner would liµely be subject to
torture by a public official.
4
IV
Substantial evidence supports the agency's conclusion that petitioners were
not entitled to relief on humanitarian grounds. The BIA may grant humanitarian
asylum to a victim of past persecution, even where the government has rebutted the
applicants's fear of future persecution, if the applicant establishes one of two
things. First, the alien can show 'compelling reasons for being unwilling to or
unable to return to the country arising out of the severity of the past persecution.'
8 C.F.R. y 1208.13(b)(1)(iii)(A). Or, under the second prong of the humanitarian
asylum analysis, the alien can show 'a reasonable possibility that he or she may
suffer other serious harm upon removal to that country.' 8 C.F.R. y
1208.13(b)(1)(iii)(B).
Petitioners did not establish past persecution and substantial evidence
supports the agency's conclusion that the petitioner did not establish a reasonable
possibility of suffering serious harm upon removal to that country.
PETITION GRANTED IN PART; DENIED IN PART; REMANDED.
5
FILED
Rahmati v. Holder, 05-73868 FEB 11 2010
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
SILVERMAN, Circuit Judge, dissenting:
I agree with Parts I and III of the Memorandum, but respectfully dissent
from Part II. In my opinion, the immigration judge adequately explained why
petitioner was not entitled to withholding of removal: She suffered no past
persecution (as the majority acµnowledges), and her claimed fear of future
persecution was not reasonable now that the Taliban were no longer in control.
Because the evidentiary record supports the IJ's reasoning and conclusion, I would
deny the petition in full.