Bachilly v. Holder , 368 F. App'x 738 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ISSA BACHILLY, No. 06-71832
Petitioner, Agency No. A095-576-076
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued March 14, 2008
Submission vacated April 30, 2008
Resubmitted February 23, 2010
Seattle, Washington
Before: B. FLETCHER, REINHARDT, and PAEZ, Circuit Judges.
Issa Bachilly (“Bachilly”), a native and citizen of Sierra Leone, petitions for
review of a Board of Immigration Appeals (“BIA”) order affirming an Immigration
Judge’s (“IJ”) decision denying his applications for asylum, withholding of
removal, and relief under CAT. Bachilly claims that he was abducted, beaten, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
forced to work for the Revolutionary United Front (“RUF”) guerrilla group in
Sierra Leone for more than one year. Although the BIA found Bachilly credible, it
denied his application. The BIA concluded that he had not been mistreated on
account of his political opinion and that he did not have a well-founded fear of
future persecution in light of evidence that the RUF had disarmed and disbanded in
2002.
In his petition for review, Bachilly argues that the BIA’s finding that his
mistreatment was not motivated by his political opinion is not supported by
substantial evidence,1 that the BIA abused its discretion by failing to consider his
request for humanitarian asylum, and that the BIA incorrectly concluded that he
was not eligible for withholding of removal under the Convention Against Torture
(“CAT”). We agree with his first two arguments, and remand so that the BIA can
address the question of whether the government has shown by a preponderance of
the evidence that Bachilly no longer has a well-founded fear of returning to Sierra
Leone because country conditions have improved, and so that the BIA may decide
whether to exercise its discretion in deciding whether to grant him humanitarian
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Bachilly also argues that he established that his mistreatment was motivated
at least in part by his religious beliefs. We decline to reach this argument because
it is sufficient that the RUF was motivated in part by Bachilly’s imputed political
opinion.
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asylum based on the severity of his past persecution. We deny the petition with
respect to Bachilly’s CAT claim.
We may reverse the BIA’s factual findings only if a reasonable factfinder
would be compelled to reach a contrary conclusion. See INS v. Elias-Zacarias, 502
U.S. 478, 481 & n.1 (1992); Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.
2006). In this case, the record compels the conclusion that the RUF was motivated
at least in part by Bachilly’s political opinion. Immediately before being shot to
death, Bachilly’s parents told the RUF “we do not support you, don’t take our child
with you.” The RUF then abducted Bachilly, who refused to fight for them despite
the fact that the RUF beat him as punishment for his refusal. The record clearly
shows that the RUF imputed to Bachilly his parent’s opposition to their political
movement. See, e.g., Ahmed v. Keisler, 504 F.3d 1183, 1195 (9th Cir. 2007)
(“[T]he fact that Ahmed was beaten when captured with his uncle suggests that the
army imputed to Ahmed his uncle’s political opinions.”); Sangha v. INS, 103 F.3d
1482, 1489-90 (9th Cir. 1997) (noting that persecution of both father and son
indicates that the father’s views had been imputed to the son); Bolanos-Hernandez
v. INS, 767 F.2d 1277, 1288 (9th Cir. 1984). The record also shows that this
imputed political opinion was at least one of the reasons why the RUF persecuted
Bachilly. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (recognizing that if
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the guerrillas believe that an individual’s refusal to fight is motivated by the
individual’s political opinion, the persecution would be on account of a political
opinion); see also Gafoor v. INS, 231 F.3d 645, 650-51 (9th Cir. 2000) (“[A]n
applicant need only produce evidence from which it is reasonable to believe that
the harm was motivated, at least in part, by an actual or implied protected ground.”
(internal quotations omitted)).
Because Bachilly suffered past persecution, he is entitled to a presumption
of future persecution. 8 C.F.R. § 1208.13(b)(1). The government may rebut this
presumption if it can show by a preponderance of the evidence that country
conditions have changed such that Bachilly no longer has a well-founded fear that
he would be persecuted if he were to return to Sierra Leone. 8 C.F.R. §
208.13(b)(1). Generalized information from a State Department report on country
conditions is insufficient to rebut the presumption of future persecution; the
government must demonstrate how changed conditions will specifically affect
Bachilly. See Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004).
We therefore remand so that the BIA can decide in the first instance whether the
government has proved improved country conditions. See INS v. Ventura, 537
U.S. 12, 17 (2002).
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Even if the government carries its burden of showing that conditions in
Sierra Leone have improved so that Bachilly no longer has a well-founded fear of
persecution, the BIA has discretion to grant him humanitarian asylum pursuant to 8
C.F.R. § 1208.13(b)(1)(iii). In cases of severe past persecution, an applicant may
obtain asylum even if he has no well-founded fear of future persecution, provided
that he has “compelling reasons” for being unwilling to return. See 8 C.F.R. §
1208.13(b)(1)(iii)(A). Those reasons need not be related to a protected ground.
See Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004). Accordingly,
Bachilly’s fear of returning to Sierra Leone, caused by seeing his parents executed
before his very eyes, may be grounds for humanitarian asylum. Because the BIA
did not determine whether Bachilly is eligible for humanitarian asylum, we remand
to the BIA to consider this issue in the first instance. See Benyamin v. Holder, 579
F.3d 970, 977 (9th Cir. 2009); Silaya v. Mukasey, 524 F.3d 1066, 1072 (9th Cir.
2008).
We affirm the BIA’s denial withholding of removal under CAT. The
evidence in the record – State Department Country Reports on Sierra Leone and
Bachilly’s testimony that the man who killed his brother might also kill him – does
not compel the conclusion that it is more likely than not that Bachilly would be
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tortured or suffer cruel and inhumane treatment if he returned to Sierra Leone. See
Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005).
We remand for the BIA to consider whether changed country conditions will
specifically affect Bachilly and to exercise its discretion as to whether to grant him
humanitarian asylum.
PETITION DENIED IN PART, GRANTED IN PART, and
REMANDED.
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