Wahib Al Banna v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
JUL 1 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAHIB SAEED MOHAMMED AL No. 20-71374
BANNA,
Agency No. A215-820-829
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2021**
Anchorage, Alaska
Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.
Petitioner, a citizen and native of Yemen, seeks review of the BIA decision
denying petitioner’s application for asylum, withholding of removal, and deferral
of removal under the Convention Against Torture (CAT). The BIA determined
*
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).
that petitioner was ineligible for asylum and withholding pursuant to 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI), because he had provided “material support” to the Houthi
militia, a terrorist organization. The BIA also ruled that petitioner had not
demonstrated that he was eligible for deferral of removal. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a) and we deny the petition.1
“We review only the BIA’s opinion, except to the extent that it expressly
adopted portions of the IJ’s decision.” Velasquez-Gaspar v. Barr, 976 F.3d 1062,
1064 (9th Cir. 2020). The BIA expressly stated that it did not reach the IJ’s
alternative determinations on nexus. The BIA’s factual findings underlying its
determination that a petitioner is not eligible for asylum, withholding of removal,
or CAT relief are reviewed for substantial evidence, Arteaga v. Mukasey, 511 F.3d
940, 944 (9th Cir. 2007), and its determinations on questions of law are reviewed
de novo, Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).
1. Where the BIA concludes a petitioner is ineligible for asylum or
withholding of removal pursuant to the material support bar, we retain jurisdiction
to consider “colorable constitutional claims or questions of law,” including mixed
questions of fact and law where the facts are undisputed. See Rayamajhi v.
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The parties are familiar with the facts and we recount them only as
necessary to resolve the issues on appeal.
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Whitaker, 912 F.3d 1241, 1244 (9th Cir. 2019); see also 8 U.S.C. § 1252(a)(2)(D);
Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009)..
Petitioner contends the BIA erred as a matter of law by concluding that
paying his household expenses and paying nominal tolls amounted to “material
support” of the Houthi militia because the Houthi militia had taken over as the de
facto government.
The government characterizes petitioner’s brief as raising a duress argument.
In Annachamy v. Holder, we held that “the material support bar does not include an
implied exception for individuals . . . who provide support [to a terrorist
organization] under duress.” 733 F.3d 254, 267 (9th Cir. 2013), overruled in part
on other grounds by Abdisalan v. Holder, 774 F.3d 517, 526 (9th Cir. 2015) (en
banc). To the extent petitioner raises duress, that argument is foreclosed by our
caselaw.
Petitioner also raises a policy argument, urging us to adopt a reading of 8
U.S.C. § 1182(a)(3)(B)(iv)(VI) that would exempt those who transfer funds to a
terrorist organization for necessary services when the terrorist organization
becomes the de facto government in an area. Even if we were to agree with
petitioner that the BIA’s broad reading of “material support” leads to troubling
results, he has not provided any statutory analysis of § 1182(a)(3)(B)(iv)(VI) to
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suggest that Congress intended a different meaning. See Fed. R. App. P. 28(a)(8)
(Appellant’s brief must contain “appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies”). Petitioner has not shown that the BIA misapplied the material support bar.
2. Petitioner failed to show his claim for deferral of removal under the CAT
was incorrectly dismissed. Substantial evidence supports the BIA’s conclusion
that petitioner could reasonably relocate within Yemen to avoid torture. The IJ
found large areas of southern Yemen are beyond Houthi control, and Petitioner did
not show he would be unable to relocate to an area outside of Houthi control.
Petitioner also contends he could not relocate to other areas of Yemen
because they were controlled by Al Qaeda, a group to which petitioner is opposed.
This argument presents a false dichotomy, suggesting petitioner’s only options are
to live in an area under the Houthi control or Al Qaeda control. A map of Yemen
in the record shows areas of Yemen that are not controlled by either the Houthi
militia or Al Qaeda. Accordingly, the record does not compel a finding that it
would be unreasonable for petitioner to relocate within Yemen.
PETITION DENIED.
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