Harry Freeman v. Eric Holder, Jr. , 540 F. App'x 644 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HARRY FREEMAN, No. 09-73925
Petitioner, Agency No. A089-814-444
v. AMENDED
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 29, 2013
Pasadena, California
Before: O’SCANNLAIN, BEA, and CHRISTEN, Circuit Judges.
Pursuant to 8 U.S.C. § 1252, Harry Freeman, a native and citizen of Liberia,
petitions for review of an order by the Board of Immigration Appeals (“BIA”)
denying his claim for withholding of removal. We grant the petition and conclude
that Freeman is entitled to withholding.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The agency found that Freeman was entitled to a presumption of eligibility
for withholding of removal because he had suffered past persecution on the basis
of ethnicity. As the Immigration Judge (“IJ”) noted, ethnicity appears to have been
“the basis of the civil war” in Liberia. The IJ’s finding of past persecution was not
contested. Contrary to the government’s argument, the issue of ethnicity cannot be
cleanly divorced from the involvement of Freeman and his family in the war.
To meet the burden of finding changed country conditions, the government
was “obligated to introduce evidence that, on an individualized basis, rebuts a
particular applicant’s specific grounds for his well-founded fear of future
persecution.” Popova v. INS, 273 F.3d 1251, 1259 (9th Cir. 2001) (internal
quotation marks omitted). “Information about general changes in the country is
insufficient for the government to overcome the presumption.” Lopez v. Ashcroft,
366 F.3d 799, 805 (9th Cir. 2004). State Department country reports may be a
good resource, but “they typically are not amenable to an ‘individualized analysis’
tailored to an [] applicant’s particular situation.” Kamalyan v. Holder, 620 F.3d
1054, 1057 (9th Cir. 2010).
The IJ found Freeman to be a credible witness. Freeman cited a fear of
retribution by former rebels arising from his family’s role in the war, and the fact
that his former rebel enemies had assumed powerful positions in Liberia. Given
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the specificity of this fear in light of the details Freeman presented about the
particular acts of persecution he suffered, the government could not rebut his
presumption with the general information it cited from a 2008 country report.
In the immigration context, courts should remand when the agency has not
yet had the opportunity to consider a factual question regarding a petitioner’s
circumstances. See, e.g., INS v. Ventura, 537 U.S. 12, 17 (2002) (holding that
agency must be allowed to decide question of changed country conditions in the
first instance); Lopez, 366 F.3d at 806–07 (remanding where agency had applied
incorrect legal standard). But where BIA has fully considered the relevant
circumstances under the proper standard, and its conclusion is not supported by
substantial evidence, courts need not remand simply to give the agency the
opportunity to make its case more persuasively. See Mutuku v. Holder, 600 F.3d
1210, 1214–15 (9th Cir. 2010) (finding remand unnecessary where government
failed to meet its burden); Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.
2004) (finding remand unnecessary where agency did not present evidence of
changed conditions and represented that all relevant factual issues had been
considered in hearing).
Here, the agency applied the correct legal standard, as evidenced by BIA’s
citation to this court’s “individualized analysis” standard in its decision. But the
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evidence BIA relied upon did not rebut Freeman’s presumption. We conclude that
remand is unnecessary, and that Freeman is entitled to withholding of removal.
GRANTED. The agency may conduct further proceedings as necessary to
implement this decision.
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