Mustafa Hussain v. Matthew Whitaker ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUSTAFA HUSSAIN, No. 15-72170
Petitioner, Agency No. A099-875-114
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and BUCKLO,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
Mustafa Hussain petitions for review of the Board of Immigration Appeal’s
(“BIA”) denial of his applications for asylum. Because the BIA cited Matter of
Burbano and provided its own review of the evidence and the law, we review the
decisions of both the immigration judge and the BIA. Ali v. Holder, 637 F.3d
1025, 1028-29 (9th Cir. 2011). In this case, the immigration judge concluded that
Hussain had established past persecution, but that the presumption of future
persecution was rebutted by changed country conditions, namely that “the political
atmosphere in Pakistan has evolved in favor of the [Pakistan Muslim League
Nawaz] party” of which Hussain was a member.
We may take judicial notice of a post-briefing change in country conditions
in the context of deciding whether to remand.1 Gafoor v. I.N.S., 231 F.3d 645,
655-57 (9th Cir. 2000) (ordering a remand to the BIA after taking judicial notice,
sua sponte, of “dramatic foreign developments” ). Here, we take judicial notice of
the fact that country conditions in Pakistan have changed in that the Nawaz party
now holds considerably less political power in Pakistan. Because the immigration
judge’s decision was founded upon the contrary assumption, we must remand for
the BIA to determine on an open record in the first instance whether the changed
country conditions in Pakistan continue to rebut Hussain’s well-founded fear of
1
Petitioner’s motion for judicial notice is granted.
2
future persecution and affect Hussain’s ability to relocate within Pakistan. See
I.N.S. v. Orlando-Ventura, 537 U.S. 12, 17-18 (2002).
PETITION GRANTED AND REMANDED.
3