Ali v. Eric H. Holder Jr., Nos. 07–71195

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtOPINION
Citation637 F.3d 1025
PartiesJannif ALI, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.Jannif Ali, Petitioner,v.Eric H. Holder Jr., Attorney General, Respondent.
Docket Number07–73559.,Nos. 07–71195
Decision Date18 March 2011

637 F.3d 1025
11 Cal.
Daily Op. Serv. 3355
2011 Daily Journal D.A.R. 4046

Jannif ALI, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.Jannif Ali, Petitioner,
v.
Eric H. Holder Jr., Attorney General, Respondent.

Nos. 07–71195

07–73559.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 17, 2011.Filed March 18, 2011.


[637 F.3d 1026]

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.Gregory G. Katsas, Acting Assistant Attorney General, Civil Division, David V. Bernal, Acting Director, Office of Immigration Litigation, Jeffery R. Leist, Attorney, Office of Immigration Litigation, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070–149–536.Before: MARY M. SCHROEDER and SIDNEY R. THOMAS, Circuit Judges, and LYNN S. ADELMAN, District Judge.*

OPINION
THOMAS, Circuit Judge:

Fijian Jannif Ali, a Muslim and ethnic Indian, petitions for review of agency decisions

[637 F.3d 1027]

denying his application for asylum, withholding of removal, relief under the Convention Against Torture, and his motion to reopen. We grant the petitions for review.

I

In this case, we revisit the “severe mistreatment that [Indo–Fijians] have suffered in their adopted country.” Gafoor v. INS, 231 F.3d 645, 647 (9th Cir.2000), superseded by statute, Real ID Act of 2005, Pub.L. No. 109–13, as recognized in Parussimova v. Mukasey, 533 F.3d 1128, 1133 (9th Cir.2008). 1 In 1987, the Fijian Alliance Party, which had governed Fiji since independence, lost the general election to the National Federation Party–Labour Coalition. The new government had strong support from the Indo–Fijian community. Later that year, the Royal Fiji Military Forces staged a military coup with the purpose of “restor[ing] the political dominance of ethnic Fijians in their home islands.” After the new government assumed control, the military staged a second coup in 1987 because it had been excluded from governmental negotiations. Power was then once again handed over from the military to civilians in December 1987.

There were reportedly no deaths associated with either coup, but the police and military dealt harshly with Indo–Fijians during the coups and their aftermath. Many were arrested and abused while in custody. Military and police aside, Indo–Fijians also suffered widespread discrimination, abuse, and harassment at the hands of ethnic Fijians:

The Department of State received numerous reports of physical abuse of detainees by the military, some of whom were forced to run barefoot on blacktop roads in the hot sun for several kilometers or were dumped in pit latrines or in the sewage treatment holding plants. The most horrible reported attacks on Indo–Fijians include women raped in front of their children, political opponents brutally beaten, detainees forced to walk naked in the streets while holding human excrement, people forced to swim in sewage ponds, and children stripped and beaten for Sunday curfew violations and forced to rub their noses against a concrete floor until their noses bled. Ethnic Fijian youth gangs raided, stoned, and fire bombed Indo–Fijian homes. In 1989, five Hindu temples were burned. In October 1990, an Indian school was burned. Freedom of speech was severely constrained, and political meetings and demonstrations banned. Fearing for their safety, roughly 35,000 Indo–Fijians fled the country.

Gafoor, 231 F.3d at 648–49 (citations, alterations, brackets, and internal quotation marks omitted).

Ali was one of those Indo–Fijians who suffered persecution in the aftermath of the 1987 coups. He was harassed by Fijian soldiers while he and other Muslims were at a prayer meeting in a mosque. He was beaten with the butt of a gun by a Fijian soldier. His house was vandalized and dynamited by military forces. Ethnic Fijians routinely threw rocks at his family,

[637 F.3d 1028]

car, and house. His wife was threatened with rape. Ethnic Fijians threatened to burn his house if he did not move. Ethnic Fijians stole from his family.

Ali and his family entered the United States on March 4, 1989, on a visitor visa. Two more coups took place after Ali left—one in 2000 and one in 2006. The 2000 coup was “remarkably similar to the 1987 coups,” resulting in further abuse of Indo–Fijians and effectively destroying any improvements that had been made since 1987. Id. at 655. After the 2000 coup, though, Fijians began to enjoy free and fair elections. However, in December 2006, the military once again overthrew the government, accusing it of unfairly favoring ethnic Fijian interests. According to the 2006 State Department Country Report for Fiji, “The human rights situation deteriorated greatly following the [2006] coup.”

II

Ali filed an application for asylum on October 2, 1989. He was not interviewed by the Government for that application until nearly 14 years later. Not long after the interview, the Government initiated removal proceedings against Ali, alleging that he was subject to removal because he remained in the United States longer than permitted.

Ali appeared before the immigration judge (“IJ”) on April 15, 2004. He conceded removability and renewed his applications for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ determined that Ali offered credible testimony and that he established “past persecution.” See 8 C.F.R. § 1208.13(b)(1). Because Ali had established past persecution, he was entitled to the presumption of a well-founded fear of persecution if he were to return to Fiji, and the IJ so found. See 8 C.F.R. § 1208.13(b)(1).

But the IJ concluded the Government had rebutted that presumption in light of improved country conditions, which were detailed in the State Department's 1996 Asylum Profile and 2004 Country Report. The IJ then denied Ali's request for relief.

On administrative appeal, the Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ's decision under Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) (noting that adoption or affirmance of a decision of an IJ, in whole or in part, is “simply a statement that the Board's conclusions upon review of the record coincide with those which the immigration judge articulated in his or her decision”). The BIA held that “[t]he Immigration Judge correctly found that although the respondent had established past persecution, his fear of future persecution had been rebutted by changed country conditions.” The BIA held that, in the absence of that presumption, Ali had not met his burden of establishing the elements of his claims for relief. Ali timely petitioned us to review that decision.

While his petition was pending on appeal, Ali moved the BIA to reopen his proceedings on May 25, 2007, in light of new evidence detailing the 2006 coup in Fiji. The BIA denied his motion on August 7, 2007, concluding that the evidence was “new, but not material.” Ali timely petitioned us to review that decision, too. We have jurisdiction to review Ali's petitions under 8 U.S.C. § 1252.

Where, as here, the BIA cites Burbano and also provides its own review of the evidence and law, we review both the IJ's and the BIA's decisions. Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir.2010). We review de novo the BIA's and IJ's determinations of purely legal questions. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). We review factual findings, on the other hand, for

[637 F.3d 1029]

substantial evidence. Halim v. Holder, 590 F.3d 971, 975 (9th Cir.2009). Under the substantial-evidence standard, “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. We will uphold the agency's determination “if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006)). We review the BIA's denial of a motion to reopen for abuse of discretion. Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.2010). We cannot affirm the BIA or IJ on a ground upon which it did not rely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010). In other words, we “must decide whether to grant or deny the petition for review based on the Board's [or IJ's] reasoning rather than our own independent analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.2004).

III

The BIA and IJ correctly afforded Ali the presumption of a well-founded fear of persecution. But their finding that the Government had rebutted that presumption is not supported by substantial evidence because they failed to make an individualized determination of how the changed country conditions in Fiji impacted Ali's specific harms and circumstances. In addition, the BIA abused its discretion when it denied Ali's motion to reopen because it failed to analyze the effect of the 2006 coup on Ali's presumption of a well-founded fear of persecution.

A

The petitioner bears the burden of establishing his eligibility for asylum. 8 C.F.R. § 1208.13(a). To satisfy this burden, an alien must show he is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection...

To continue reading

Request your trial
115 practice notes
  • Bringas-Rodriguez v. Sessions, No. 13-72682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 2017
    ...this new information, which is "material" and "could not have been discovered or presented" to the IJ. Ali v. Holder, 637 F.3d 1025, 1031–32 (9th Cir. 2011) (quoting 8 C.F.R. § 1003.2(c)(1) ); see also Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015). Bringas's HIV diag......
  • Olivas-Motta v. Whitaker, No. 14-70543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 19, 2018
    ...categorically a CIMT. Olivas-Motta v. Holder , 746 F.3d 907, 917 (9th Cir. 2013), as amended (April 1, 2014); see also Ali v. Holder , 637 F.3d 1025, 1029 (9th Cir. 2011) (confining our review to grounds relied upon by the Board). Instead, we granted the petition and remanded because "......
  • Santiago–rodriguez v. Eric H. Holder Jr., No. 06–75319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 9, 2011
    ...reveal[ing] a reasonable likelihood” that Santiago would not be removable under the correct statutory interpretation, Ali v. Holder, 637 F.3d 1025, 1032 (9th Cir.2011) (defining “[a] prima facie case”), and so has not yet evaluated whether Velasquez's first “egregious circumstance” is prese......
  • Olivas-Motta v. Holder, No. 10–72459.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 1, 2014
    ...petition on the current record. We decide a petition for review based on the grounds relied upon by the BIA. Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.2011). The BIA did not decide Olivas–Motta's appeal based on a conclusion that the Arizona endangerment statute is categorically a CIMT. I......
  • Request a trial to view additional results
112 cases
  • Bringas-Rodriguez v. Sessions, No. 13-72682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 2017
    ...should consider this new information, which is "material" and "could not have been discovered or presented" to the IJ. Ali v. Holder, 637 F.3d 1025, 1031–32 (9th Cir. 2011) (quoting 8 C.F.R. § 1003.2(c)(1) ); see also Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015). Bringas's HIV diagnosi......
  • Olivas-Motta v. Whitaker, No. 14-70543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 19, 2018
    ...categorically a CIMT. Olivas-Motta v. Holder , 746 F.3d 907, 917 (9th Cir. 2013), as amended (April 1, 2014); see also Ali v. Holder , 637 F.3d 1025, 1029 (9th Cir. 2011) (confining our review to grounds relied upon by the Board). Instead, we granted the petition and remanded because "an IJ......
  • Santiago–rodriguez v. Eric H. Holder Jr., No. 06–75319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 9, 2011
    ...reveal[ing] a reasonable likelihood” that Santiago would not be removable under the correct statutory interpretation, Ali v. Holder, 637 F.3d 1025, 1032 (9th Cir.2011) (defining “[a] prima facie case”), and so has not yet evaluated whether Velasquez's first “egregious circumstance” is prese......
  • Olivas-Motta v. Holder, No. 10–72459.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 1, 2014
    ...petition on the current record. We decide a petition for review based on the grounds relied upon by the BIA. Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.2011). The BIA did not decide Olivas–Motta's appeal based on a conclusion that the Arizona endangerment statute is categorically a CIMT. I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT