Khammany v. Holder , 475 F. App'x 234 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SIVANHEUANG KHAMMANY, No. 06-73333
Petitioner, Agency No. A023-836-715
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 8, 2012 **
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Sivanheuang Khammany, a native and citizen of Laos, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
We review for substantial evidence the agency’s factual findings, and review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo questions of law. Bromfield v. Mukasey, 543 F.3d 1071, 1076 (9th Cir.
2008). We deny in part and grant in part the petition for review, and remand for
further proceedings.
Substantial evidence supports the BIA’s determination that Khammany has
not established it is more likely than not he will face future persecution if returned
to Laos. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005)
(upholding the denial of withholding of removal where the possibility of future
persecution was speculative). Accordingly, Khammany’s withholding of removal
claim fails.
Substantial evidence also supports the BIA’s denial of relief under the
Convention Against Torture because Khammany failed to establish that it is more
likely than not he will be tortured by or with the acquiescence of the government of
Laos. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
In concluding that Khammany was ineligible for a waiver of inadmissibility
under former § 212(c) of the Immigration and Nationality Act, the agency did not
have the benefit of Peng v. Holder, 673 F.3d 1248, 1256-57 (9th Cir. 2012), in
which we held that § 212(c) relief remains available to certain aliens who
proceeded to trial prior to the passage of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, or Vartelas v. Holder,
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566 U.S. ––––, 132 S.Ct. 1479 (2012), in which the Supreme Court discussed the
role of a reliance inquiry when the antiretroactivity principle is invoked.
In light of this intervening caselaw, we remand to the BIA to determine
Khammany’s eligibility for § 212(c) relief.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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