Thierno Diallo v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THIERNO SADOU DIALLO, AKA No. 19-71673
Thiemo Sadou Diallo,
Agency No. A213-080-720
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Thierno Sadou Diallo, a native and citizen of Guinea, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.
2014). We grant in part and deny in part the petition for review, and we remand.
In determining that Diallo did not suffer past persecution, it appears the
agency failed to consider that Diallo was directly threatened by the police and went
into hiding for four years as a result. See Sumolang v. Holder, 723 F.3d 1080,
1084 (9th Cir. 2013) (remand is appropriate where the BIA fails to consider
evidence that is directly relevant to past persecution); see also Mendoza-Pablo v.
Holder, 667 F.3d 1308, 1314 (9th Cir. 2012) (recognizing that being forced to flee
home in face of immediate threat of violence or death may constitute persecution,
where persecutor’s actions are motivated by a protected ground); Khup v. Ashcroft,
376 F.3d 898, 903-04 (9th Cir. 2004) (holding that threats combined with the
murder of a fellow preacher constituted past persecution). The record also includes
evidence that government actors engaged in acts of violence against opposition
demonstrators at the time Diallo was threatened. See Duran-Rodriguez v. Barr,
918 F.3d 1025, 1028 (9th Cir. 2019) (“We generally look at all of the surrounding
circumstances to determine whether the threats are actually credible and rise to the
level of persecution.”). Because it appears the agency failed to consider all
relevant record evidence in finding that Diallo’s past harm did not rise to the level
of persecution, we grant the petition for review as to Diallo’s asylum and
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withholding of removal claims and we remand to the agency for further
proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-
18 (2002) (per curiam).
Substantial evidence supports the agency’s denial of CAT relief because
Diallo failed to show it is more likely than not he will be tortured by or with the
consent or acquiescence of the government if returned to Guinea. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
Diallo’s request for judicial notice, set forth in the opening brief, is denied.
The government must bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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