Lee William v. Eric Holder, Jr. , 521 F. App'x 633 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 04 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
LEE RICH WILLIAM, No. 10-70591
Petitioner, Agency No. A088-118-915
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 6, 2013
Pasadena, California
Before: PREGERSON and FISHER, Circuit Judges, and GWIN, District Judge.**
Lee Rich William, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeal’s (BIA) decision dismissing his appeal of the
decision of the immigration judge (IJ) denying his applications for asylum and
withholding of removal. We grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
The BIA and the IJ concluded that William’s mistreatment did not rise to the
level of persecution because William did not suffer “significant injuries” or require
medical attention. Under our precedent, however, the BIA must consider not only
the severity of physical attacks but also their frequency. Where, as here, an asylum
applicant suffers frequent physical attacks over a period of years, resulting in
bleeding, bruising and swollen eyes, the injuries may well rise to the level of
persecution, even if any single such attack, viewed in isolation, might not. See,
e.g., Chand v. INS, 222 F.3d 1066, 1070, 1073-74 (9th Cir. 2000) (“Where an
applicant suffers [physical attacks] on more than one occasion, and as in this case
is victimized at different times over a period of years, the harm is severe enough
that no reasonable fact-finder could conclude that it did not rise to the level of
persecution . . . .”); Mihalev v. Ashcroft, 388 F.3d 722, 725, 729, 730 (9th Cir.
2004) (holding that a 10-day detention, accompanied by daily beatings and hard
labor, constituted persecution even though the petitioner “suffered no serious
bodily injury and required no medical attention”).
We therefore grant the petition for review on William’s asylum and
withholding of removal claims and remand to the BIA to apply the correct legal
standard. See Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir. 2011) (“We remand
this matter to the BIA so that it may apply the correct legal standards in the first
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instance.”); Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)
(“If we conclude that the BIA’s decision cannot be sustained upon its reasoning,
we must remand to allow the agency to decide any issues remaining in the case.”).
We do not reach William’s argument regarding the Indonesian government’s
unwillingness or inability to protect him because it is unclear if the agency denied
relief on this basis. See Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)
(holding that, where an agency decision is unclear, remand is appropriate for
additional investigation or explanation by the BIA).
The panel retains jurisdiction over subsequent petitions for review.
PETITION GRANTED; REMANDED.
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