Mohamed Trawally v. Eric Holder, Jr. , 396 F. App'x 346 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMED TRAWALLY, No. 09-71581
Petitioner, Agency No. A097-101-862
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 2, 2010
Seattle, Washington
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Petitioner Mohamed Trawally (“Trawally”) seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
denial of his application for asylum, withholding of removal, and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Convention Against Torture (“CAT”).1 Trawally argues that he was persecuted by
Sierra Leonean rebels because of his political affiliation and religion, and that he
fears for his life if he were to be removed to Sierra Leone. The BIA affirmed the
IJ’s dismissal of his application on the ground that conditions in Sierra Leone have
changed such that Trawally no longer has a well founded fear of persecution
should he be forced to return. The BIA also found a discretionary grant of asylum
for humanitarian relief under 8 C.F.R. § 1208.13(b)(1)(iii) was not warranted in
Trawally’s case.
Although Trawally raised the issue of humanitarian relief in his notice of
appeal, he did not address the issue in his brief to the BIA. Nevertheless, the BIA
considered the issue. As the government acknowledges, “[c]laims addressed on
the merits by the BIA are deemed exhausted,” even if the claims were not raised in
the briefing before the BIA. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009).
In denying relief, the BIA simply said that “a discretionary grant of
asylum . . . is not warranted in this case.” The BIA offered no reasons or analysis.
The difficulty is that this conclusion, without any support or explanation, fails to
provide us with a basis to review the decision. See Lopez-Galarza v. INS, 99 F.3d
1
Trawally makes no arguments specific to withholding of removal or his
claim under CAT, so we do not consider these claims on appeal.
954, 962 (9th Cir. 1996) (“A more serious problem with the BIA’s decision,
however, is that the BIA simply failed to analyze whether Lopez-Galarza had
suffered under atrocious forms of past persecution.”) (internal quotations omitted);
see also Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (“We have
long held that the BIA abuses its discretion when it fails to provide a reasoned
explanation for its actions.”); Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985)
(“[T]he BIA’s failure to address the evidence presented or to articulate reasons for
its negative conclusion was an abuse of discretion requiring reversal and
remand.”). The BIA must, at the very least, recite the facts that support a grant or
denial of humanitarian asylum, compare these facts to other cases, such as Matter
of Chen, 20 I&N Dec. 16 (BIA 1989), and express its determination whether or not
Petitioner has alleged treatment sufficiently “atrocious” to warrant humanitarian
relief. We grant the petition as to this claim and remand to the BIA for further
proceedings consistent with this disposition.
Substantial evidence supported the BIA’s conclusion that country conditions
in Sierra Leone had changed such that Trawally no longer had a well founded fear
of persecution. See INS v. Elias-Zacharias, 502 U.S. 478, 481 (1992). The BIA
made its determination based on the State Department country report and noted the
specific facts supporting its conclusion.
PETITION GRANTED IN PART AND DENIED IN PART. Each party
shall bear its own costs on appeal.