FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BASAAM BIBO GULLA; SOROB SABRI
GULLA, No. 04-70957
Petitioners, Agency Nos.
v. A79-394-822
ALBERTO R. GONZALES, Attorney A79-394-823
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 11, 2007—Pasadena, California
Filed August 13, 2007
Before: Harry Pregerson, Ferdinand F. Fernandez, and
Eugene E. Siler, Jr.,* Circuit Judges.
Opinion by Judge Pregerson;
Dissent by Judge Fernandez
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
9723
9726 GULLA v. GONZALES
COUNSEL
Douglas D. Nelson, Alejandro O. Campillo, A.P.L.C., San
Diego, California, for the petitioners.
Kathryn DeAngelis (argued) and Lyle D. Jentzer, (brief)
Office of Immigration Litigation, Washington, D.C., for the
respondent.
OPINION
PREGERSON, Circuit Judge:
Bassam Bibo Gulla petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision summarily affirming
the Immigration Judge’s (“IJ”) decision denying his request
for asylum. The IJ found Gulla to be credible and statutorily
eligible for asylum. However, the IJ denied Gulla’s asylum
application based on discretionary factors. The IJ stated that
he believed it improper to allow Gulla to obtain relief because
(1) he traveled through three other countries before he arrived
in the United States, (2) he was in good health and not of ten-
der age, and (3) he used fraudulent travel documents to reach
the United States. The IJ granted withholding of removal and,
therefore, did not reach the CAT claim. We have jurisdiction
GULLA v. GONZALES 9727
pursuant to 8 U.S.C. § 1252(a)(1). We hold that the IJ abused
his discretion in denying asylum, and we grant Gulla’s peti-
tion.
FACTUAL BACKGROUND
Bassam Bibo Gulla is a thirty-four-year-old native and citi-
zen of Iraq. He is Catholic and a member of the Chaldean eth-
nic minority. There are numerous reports and credible
testimony by Gulla that the Catholic Chaldeans suffered gen-
eral discrimination and persecution from the Iraqi govern-
ment, the Ba’ath political party, and the Muslim population.
Gulla and his family have also been subject to heightened
discrimination and abuse. In March 1973, Gulla’s father was
imprisoned by the Ba’ath party on suspicion for being a traitor
and for “dealing” with the Kurdish opposition. Gulla’s father
told him that as a result of the imprisonment, the entire Gulla
family was on a blacklist.
In August 1988, Gulla entered compulsory military service.
Gulla was required to remain in the army longer than normal
and he was stationed far from his home. He says that this
treatment by his superiors was due to his religious affiliation,
his refusal to join the Ba’ath party, and his family being
blacklisted. During his term of service, Gulla was detained,
imprisoned, beaten, and tortured by his superior officers.
After the Army continually refused his requests to end his
term of service, Gulla deserted in 1992 because he believed
he was going to be killed by his superior officers. When the
government announced that deserters would receive amnesty,
Gulla turned himself in. However, because the government
learned that two of Gulla’s brothers had fled Iraq, Gulla was
severely beaten and tortured upon his return to the military.
Some of his beatings were so severe that he lost conscious-
ness, and he continues to suffer from headaches and dizziness.
He was not discharged from the military until 1994.
9728 GULLA v. GONZALES
Gulla married Sorob Sabri Goro on September 23, 1996.
On November 5, 1998, a local politician came to their house
and told Gulla and Sorob they were wanted at the police sta-
tion. They went to the police station immediately where the
government separated Gulla and Sorob and questioned them.
Gulla was detained for five days, during which time he was
beaten and tortured. Sorob, who was two months pregnant at
the time, was held one day. While she was detained, Sorob
was beaten and frightened. Although she successfully fought
off a sexual assault, she had a miscarriage. Gulla did not learn
of his wife’s situation until he was released four days later.
On July 2, 2000, Gulla was working in an agricultural field
with some other workers. A man approached him and began
asking questions about Gulla’s farming activities. Gulla did
not know the man or understand why he was questioning him.
Nevertheless, Gulla answered the man truthfully and politely.
The stranger, however, started yelling and swearing at Gulla.
The stranger attacked Gulla, who hit him back. Later that day,
the police detained Gulla and took him to the station. The
stranger was at the station, and he accused Gulla of insulting
him, the Ba’ath party, the government, and Sadaam Hussein.
Gulla denied the allegations and offered to bring witnesses to
the station to testify on his behalf. Gulla was not afforded an
opportunity to present witnesses or tell his side of the story.
The police kept Gulla in local detention for two weeks. The
police then transferred Gulla to a jail in Talkaif. While in the
jail, he was interrogated and beaten daily. He felt certain that
the guards would eventually kill him. On July 27, 2000,
Gulla’s brother bribed a police official to secure Gulla’s free-
dom. As part of the negotiation between Gulla’s brother and
the police official, Gulla had to agree to flee the area upon
release.
Gulla’s brother smuggled him from the jail to a distant
town in Kurdish territory. Sorob met Gulla there, and they
determined that it would not be safe for them to remain in that
GULLA v. GONZALES 9729
area. At the time, northern (Kurdish) Iraq was troubled by
internal conflicts, and there were widespread abuses of human
rights. Gulla testified that Christians in particular were subject
to abuse and attack.
Gulla and Sorob paid a smuggler to obtain forged Iraqi
passports for them and to help them escape Iraq. Gulla and
Sorob then took a bus to Turkey. They did not feel safe in
Turkey where there is also widespread discrimination against
Christians. Turkey does not offer asylum or any type of pro-
tection for Iraqi refugees. In fact in 2001, Turkey had a prac-
tice of deporting Iraqis. Fearing discovery, Gulla and Sorob
stayed hidden in an apartment during the month they were in
Turkey. The Gullas then left Turkey and walked across the
border into Greece. They did not plan to stay long in Greece
because they did not believe Greece to be a safe place. Gulla
and Sorob feared deportation and abuse. Therefore, they
mostly remained hidden.
Through money from family members, the Gullas paid a
smuggler to get them to the United States. The smuggler pro-
vided them with fake Danish passports and made travel
arrangements to Mexico. The Gullas arrived in Mexico in
August 2001. They went to Tijuana where they met one of
Gulla’s brothers and other countrymen. They went to the
Mexico/U.S. border and applied for asylum.
The Gullas sought asylum in the United States because of
their family ties here and because of their belief that they
would be safe from persecution. Gulla’s parents are legal resi-
dents of the United States. He has seven siblings. Three of his
siblings are U.S. citizens. Two of his sisters remain in Iraq
with their husbands, and two of his brothers are missing.
Sorob also has family ties in the United States. One of
Sorob’s brothers is a U.S. citizen. The whereabouts of her
other seven siblings and her mother are unknown. Her father
is dead. Thus, her only relative who is not missing is in the
United States.
9730 GULLA v. GONZALES
PROCEDURAL BACKGROUND
In August 2001, Gulla surrendered himself at the U.S./
Mexico border and stated his intention to seek asylum. The
border agents told Gulla to wait in Tijuana for an asylum
interview. No interview occurred. On September 11, 2001,
terrorists took over American jetliners and crashed them into
the World Trade Center in New York and the Pentagon in
Washington D.C. After that event, anti-Arab sentiments were
high in Mexico and elsewhere.
On November 8, 2001, Gulla again went to the border and
presented himself for refugee processing. At that point, INS
agents took him into custody. The INS began removal pro-
ceedings that day. The INS issued a Notice to Appear, alleg-
ing that Gulla did not possess a valid document for admission
in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). On January 16,
2002, Gulla admitted the allegations in the Notice to Appear
and conceded removability. He requested asylum, withhold-
ing of removal, and protection under the UN Torture Conven-
tion.
On August 2, 2002, Immigration Judge (“IJ”) John Wil-
liams held a hearing on Gulla’s asylum application. At that
hearing, the IJ denied asylum, granted withholding of removal
and never addressed whether Gulla was eligible for CAT
relief. The IJ stated that Gulla was credible, and he held him
statutorily eligible for asylum. The IJ found that Gulla had
suffered persecution on account of his race and religion. The
IJ denied asylum, however, after weighing discretionary fac-
tors. On August 12, 2002, Gulla appealed to the BIA. On Feb-
ruary 18, 2004, the BIA affirmed without opinion the IJ’s
denial of Gulla’s asylum petition. Gulla timely filed his peti-
tion for review before this court.
STANDARD OF REVIEW
The Attorney General’s decision to grant or deny asylum to
an eligible applicant is reviewed for abuse of discretion. 8
GULLA v. GONZALES 9731
U.S.C. § 1252(b)(4)(D); Velarde v. INS, 140 F.3d 1305, 1310
(9th Cir. 1998) (noting that BIA abuses its discretion if its
decision is “arbitrary, irrational, or contrary to law”). Factual
findings underlying the denial are reviewed for substantial
evidence. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995).
Because the BIA summarily affirmed the IJ’s opinion, “the
IJ’s decision becomes the BIA’s decision and we evaluate the
IJ’s decision as we would that of the Board.” Lanza v. Ash-
croft, 389 F.3d 917, 925 (9th Cir. 2004).
ANALYSIS
“Asylum is a two-step process, requiring the applicant first
to establish his eligibility for asylum by demonstrating that he
meets the statutory definition of a ‘refugee,’ and second to
show that he is entitled to asylum as a matter of discretion.”
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004)
(emphasis omitted). Once an “applicant establishes statutory
eligibility for asylum, the Attorney General must, by a proper
exercise of [ ] discretion, determine whether to grant that
relief.” Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000); see
also 8 U.S.C. § 1158(b).
The IJ must “state its reasons and show proper consider-
ation of all factors when weighing equities and denying
relief.” Kalubi, 364 F.3d at 1140 (internal quotation marks
omitted). Conclusory statements are inappropriate, and the IJ
must explain sufficiently how each factor figures in the bal-
ance so the court can determine that the factor has been heard,
considered, and decided. See id. at 1141-42. In exercising his
discretion, the IJ must consider both favorable and unfavor-
able factors, including the severity of the past persecution suf-
fered. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th
Cir. 2004) (holding that the IJ abused his discretion in failing
to balance favorable factors against factors identified as nega-
tive).
[1] There is no dispute that Gulla was statutorily eligible
for asylum. The IJ found that Gulla was a refugee with a well-
9732 GULLA v. GONZALES
founded fear of persecution. Gulla’s statements and fears
were further supported by State Department Iraq country
reports. Additionally, because the IJ found Gulla credible, this
court takes Gulla’s statements as true. See Lopez-Alvarado v.
Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004) (“Absent an
explicit adverse credibility finding, a witness’s testimony
must be accepted as true.”).
[2] The IJ denied Gulla’s asylum application, however,
based on discretionary grounds. We have repeatedly held that
in an exercise of discretion related to an application for asy-
lum, “all relevant favorable and adverse factors must be con-
sidered and weighed.” Kalubi, 364 F.3d at 1139. The BIA has
instructed that “the discretionary factors should be carefully
evaluated in light of the unusually harsh consequences which
may befall an alien who has established a well-founded fear
of persecution; the danger of persecution should generally
outweigh all but the most egregious of adverse factors.” Mat-
ter of Pula, 19 I.&N. Dec. 467, 474 (BIA 1987). It is rare to
find a case where an IJ finds a petitioner statutorily eligible
for asylum and credible, yet exercises his discretion to deny
relief. But see Alsagladi v. Gonzales, 450 F.3d 700 (7th Cir.
2006) (upholding discretionary denial of asylum where alien
committed fraud in his dealings with the U.S. government).
Here, the IJ set forth the proper standard for reviewing asy-
lum applications, explaining that he was weighing the various
factors from Matter of Pula. However, the IJ’s balancing of
the various factors was arbitrary and irrational. In some
places, the IJ appears to have misunderstood some of the
underlying facts. Further, although the IJ explains that fear of
persecution is the most important factor, he gave it little
weight in his analysis.
A.
The IJ denied Gulla’s application after weighing several
discretionary factors. The IJ found it especially significant
GULLA v. GONZALES 9733
that Gulla used fraudulent travel documents to reach the
United States and paid smugglers a significant amount of
money to help him make the journey.
[3] Gulla and his wife had fake Iraqi passports, which they
carried into Turkey and then Greece. Gulla then purchased
fake Danish passports for himself and Sorob. They used the
Danish passports to travel to Mexico. Gulla did not present
either passport to the U.S. authorities in San Ysidro. When he
surrendered himself at the border for the purpose of applying
for asylum, he did not misrepresent his identity or present
false documents. The INS did not charge Gulla with present-
ing fraudulent documents. Instead, the INS charged him with
not having a valid visa or permit to enter the United States.
Thus, although Gulla used false documents in his travels to
the United States, he did not attempt to use fraud in his deal-
ings with the United States.
[4] Gulla’s use of false documents in his fleeing from Iraq
is not a proper reason for denying asylum. In Matter of Pula,
the BIA explained that whether an alien presents false travel
documents or attempts to perpetrate a fraud on the United
States is an important factor in assessing the discretionary
decision to grant asylum. 19 I.&N. Dec. at 474 (“Moreover,
if the alien engaged in fraud to circumvent orderly refugee
procedures, the seriousness of the fraud should be consid-
ered.”)
[5] We have stated in the past that an applicant’s entry into
the United States using false documentation is worth little if
any weight in balancing positive and negative factors.
Mamouzian v. Ashcroft, 390 F.3d at 1138. We have recog-
nized that, to secure entry to the United States and to escape
their persecutors, genuine refugees may lie to immigration
officials and use false documentation. See Akinmade v. INS,
196 F.3d 951, 955 (9th Cir. 1999). When a petitioner who
fears deportation to his country of origin uses false documen-
tation or makes false statements to gain entry to a safe haven,
9734 GULLA v. GONZALES
that deception “does not detract from but supports his claim
of fear of persecution.” Id. (quoting Turcios v. INS, 821 F.2d
1396, 1400-01 (9th Cir. 1987)). Accordingly, it would be
anomalous for an asylum seeker’s means of entry to render
him ineligible for a favorable exercise of discretion.
B.
In making his discretionary decision to deny asylum to
Gulla, the IJ found it significant that Gulla and his wife
passed through three countries before arriving at the U.S. bor-
der. The IJ appeared to argue both that (a) Gulla should have
applied for U.S. asylum at the U.S. embassies in Turkey,
Greece, and Mexico, and (b) he should have applied for asy-
lum from those countries. However, Gulla presented clear rea-
sons for his failure to apply for asylum.
[6] The IJ held that Gulla’s failure to apply for asylum ear-
lier or to apply for asylum from one of the countries through
which he traveled constituted circumvention of regular asy-
lum procedures. This conclusion ignores the complexity of
balancing the discretionary factors. Additionally, circumven-
tion of procedures is insufficient to require the unusual show-
ing of countervailing equities. In Matter of Pula, the BIA
indicated that an applicant’s travel through and interaction
with a third country is a factor to consider when an IJ makes
his discretionary determination regarding asylum. The BIA
noted that this was a many-faceted issue.
The totality of the circumstances and actions of an
alien in his flight from the country where he fears
persecution should be examined in determining
whether a favorable exercise of discretion is war-
ranted. Among those factors which should be consid-
ered are whether the alien passed through any other
countries or arrived in the United States directly
from his country, whether orderly refugee proce-
dures were in fact available to help him in any coun-
GULLA v. GONZALES 9735
try he passed through, and whether he made any
attempts to seek asylum before coming to the United
States. In addition, the length of time the alien
remained in a third country, his living conditions,
safety, and potential for long-term residency there
are also relevant. For example, an alien who is
forced to remain in hiding to elude persecutors, or
who faces imminent deportation back to the country
where he fears persecution, may not have found a
safe haven even though he has escaped to another
country. Further, whether the alien has relatives
legally in the United States or other personal ties to
this country which motivated him to seek asylum
here rather than elsewhere is another factor to con-
sider. In this regard, the extent of the alien’s ties to
any other countries where he does not fear persecu-
tion should also be examined.
19 I.&N. Dec. at 473-74.
[7] Gulla has no ties to Turkey, Greece, or Mexico. He was
uncertain about their friendliness to Iraqis. He had several
family members in the United States and felt that he would be
safe here. His stays in Turkey and Mexico were brief. The sit-
uation in Turkey was not safe for Chaldean Christians during
the time the Gullas were there, and they had no hope of attain-
ing asylum there. Although the Gullas may have been able to
get asylum in Greece, Gulla testified credibly as to why he
feared the officers in Greece and why he believed asylum
would be unavailable to him there. Further, during his year in
Greece, Gulla only was able to find work two days a week,
and he and Sorob feared venturing out of their apartment.
Thus, although the Gullas passed through three other coun-
tries on their way to the United States, on balance the Pula
factors do not demonstrate that denial of asylum is appropri-
ate. Further, although the IJ quoted Pula, he did not ade-
quately consider all of the different aspects of this case and
balance the factors properly.
9736 GULLA v. GONZALES
It is also important to consider the context in which Gulla
sought asylum. He had been beaten and tortured. His brother
helped him escape from prison. He used fake documents and
crossed borders on foot. The whereabouts of several of his
family members who tried to flee are still unknown. As Gulla
testified, he firmly believed that he would be killed if he were
returned to Iraq. He explained that if he was ordered removed
he would instead seek a way to end his life rather than face
the torture and eventual death that he believes awaits him in
Iraq. Additionally, the attacks on the World Trade Center
occurred in the midst of his asylum process. Tension against
all Arabs was high at that point. Several news articles from
that time tell of Mexican authorities detaining Chaldeans
because of fears that they might be linked to Arab terrorist
plots. See, e.g., Letta Tayler, America’s Ordeal, Newsday,
Sept. 22, 2001, at A40.
C.
[8] The IJ not only dismissed the significant presence of
Gulla’s family within the United States, but it appears that he
misunderstood the situation of Gulla’s parents. The IJ
described Gulla’s parents as having returned to Iraq to live
with Gulla’s sisters. Gulla testified, however, that his parents
are hoping to return at the earliest possible time. Gulla’s aunt
was dying. Therefore, his parents returned to Iraq to be with
his aunt on her death bed. Shortly after the death of his aunt,
Gulla’s father fell ill. His illness was serious and led to signif-
icant surgery. At the time of the hearing before the IJ, Gulla’s
father had recovered and his parents were trying to return to
the United States. Indeed, Gulla stated that they had planned
to attend his hearing, but had not yet been able to return. The
IJ’s statement indicates that the IJ likely misunderstood this
situation as he described Gulla’s parents as having returned to
Iraq to stay.
[9] Gulla’s two sisters who remain in Iraq are protected by
their husbands, do not live in the family’s ancestral town and
GULLA v. GONZALES 9737
did not face the same problems of persecution. The IJ men-
tioned their presence in Iraq in his decision, indicating that
Gulla and his wife still had strong ties to Iraq. Such a conclu-
sion is arbitrary and irrational.
Finally, both Gulla and his wife have several family mem-
bers whose whereabouts are unknown. These family members
fled Iraq, and no one knew where they were at the time of
Gulla’s hearing before the IJ. This included two of Gulla’s
brothers and the parents and siblings of Gulla’s wife. Assert-
ing that their unknown whereabouts was a negative factor in
determining whether Gulla merited asylum is not rational.
D.
The IJ also denied Gulla asylum because he believed that
Gulla circumvented the ordinary immigration process. How-
ever, Gulla did not bypass orderly procedures. He presented
himself at the border and stated his desire to apply for asylum.
He did not sneak into the country. He did not use fraudulent
documents to enter the country.
The IJ also stated that he did not feel that Gulla should “be
place ahead of other similarly situated Chaldean Christian
Iraquian.” This statement appears to assume that all Chaldean
Christians are seeking asylum in the United States. Indeed,
the IJ stated that there are “5, 6, or maybe 700,000” Chaldean
Christians in Iraq who want to come to the United States.1
Gulla presented significant credible evidence that he and his
family were specifically targeted for persecution. Gulla per-
sonally experienced imprisonment, beatings, and torture.
Additionally, this was mere conjecture on the part of the IJ;
1
The Chaldean Federation of America estimates the total number of
Iraqi Christians worldwide at 600,000 (down from 1 million before the
reign of Saddam Hussein). They estimate that 200,000 are fleeing or have
fled Iraq. There is no evidence that all of them (or even the majority) are
seeking asylum in the United States.
9738 GULLA v. GONZALES
there is no evidence that hundreds of thousands of other Chal-
dean Christians were similarly abused and are now seeking asy-
lum.2
CONCLUSION
[10] The IJ abused his discretion in failing to balance favor-
able factors against factors identified as negative. The IJ gave
little weight to the documented persecution and beatings. The
IJ brushed aside the Gullas’s health concerns and their strong
ties to family members in the United States. The IJ did not
appear to take into consideration the fact that Gulla was credi-
ble and had not committed any fraud against the government.
Gulla has not committed any crimes that would bar him from
relief. The danger of persecution generally outweighs all but
the most egregious adverse factors. The IJ’s arguments that
Gulla could have applied for asylum at an earlier point and
the fact that Gulla used fake travel documents to escape what
he believed was certain death, are insufficient to deny asylum
in light of the many factors in Gulla’s favor. Gulla presented
credible evidence of past persecution. Gulla demonstrated
likely future persecution and torture if returned to Iraq. He
testified honestly, and he did not perpetrate any fraud on the
U.S. government. For the forgoing reasons, we find that the
IJ abused his discretion in denying asylum.
Petition GRANTED; REMANDED for further proceed-
ings.
2
Further, even if there was evidence of thousands of others seeking asy-
lum, all refugees who have clear evidence of significant persecution and
abuse should be eligible for asylum. Hypothetical numbers of potential
asylum applicants is not a basis for denying relief to someone who has a
demonstrated valid claim.
GULLA v. GONZALES 9739
FERNANDEZ, Circuit Judge, dissenting:
On the facts of this case, I cannot say that the BIA abused
its discretion;1 I cannot say that it acted in a manner that was
arbitrary, capricious or contrary to law2 when it denied asy-
lum. As I see it, the majority’s decision to the contrary is
another example of our picking apart the opinions of the
agency, while purporting to apply an abuse of discretion stan-
dard. See, e.g., Kumar v. Gonzales, 444 F.3d 1043, 1060-61
(9th Cir. 2006) (Kozinski, J., dissenting). It is just another
chapter in our divide-and-conquer strategy. See Kaur v. Ash-
croft, 379 F.3d 876, 890-91 (9th Cir. 2004) (Tallman, J., dis-
senting); see also United States v. Arvizu, 534 U.S. 266, 274,
122 S. Ct. 744, 751, 151 L. Ed. 2d 740 (2002) (reflecting on
the impropriety of divide-and-conquer analysis when reason-
ableness is in question). That strategy can make it seem that
we are deferring when we are not actually doing so. It is not
appropriate. In fact, Congress expressed its disdain for that
approach when it amended the Immigration and Nationality
Act to blunt some of the more obvious maneuvers. See 8
U.S.C. § 1158(b)(1)(B). Unfortunately, the amended statute
does not control this case,3 and its mere existence has not yet
induced us to remove any of the sudd that makes it so difficult
for immigration judges to navigate when either the credibility
or the reasonableness of an alien’s behavior is in question. Of
course, the mere fact that Gulla was credible is not sufficient
to show that he acted reasonably; those concepts should not
be conflated.4
Thus, I respectfully dissent.
1
Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir. 1996).
2
Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999).
3
It applies “to applications for asylum, withholding, or other relief from
removal made on or after” May 11, 2005. REAL ID Act § 101(h)(2), Pub.
L. 109-13, 119 Stat. 231, 305 (2005).
4
It should also be noted that while it is true that in Matter of Pula, 19
I&N Dec. 467, 474 (BIA 1987), the BIA indicated that in exercising dis-
9740 GULLA v. GONZALES
cretion “the danger of persecution should generally outweigh all but the
most egregious of adverse factors,” that was in the context of a case where
withholding of deportation had also been denied. Here, Gulla was granted
withholding of removal, which makes a great difference; he will not be
returned to Iraq. See Kalubi v. Ashcroft, 364 F.3d 1134, 1141 (9th Cir.
2004); Pula, 19 I&N Dec. at 474. We should not vastly expand our review
by ignoring that crucial difference.