Anwar Hossain v. Eric Holder, Jr. , 531 F. App'x 834 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANWAR HOSSAIN, No. 09-71069
Petitioner, Agency No. A079-378-448
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 June 14, 2013
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and WOOD, Senior District
Judge.**
Anwar Hossain petitions for review of the Board of Immigration Appeals’
(BIA) decision dismissing his appeal and denying his application for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kimba M. Wood, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
withholding of removal, and CAT protection. We have jurisdiction under 8 U.S.C.
§ 1252. We deny in part and grant in part the petition for review, and we remand.
Hossain argues that changed circumstances excuse the untimely filing of his
asylum application. Changed circumstances can excuse an untimely filing if they
“materially affect[] the applicant’s eligibility for asylum.” 8 C.F.R. §
1208.4(a)(4)(i). Here, however, substantial evidence supports the BIA’s conclusion
that the FBI’s receipt of the anonymous snitch e-mail did not materially affect
Hossain’s eligibility for asylum. See Vahora v. Holder, 641 F.3d 1038, 1042–44
(9th Cir. 2011). Since Hossain concedes that he failed to establish who sent the e-
mail, the snitch e-mail does not make it “substantially more likely,” id. at 1044,
that Hossain will be persecuted by “the government or forces that the government
is unwilling or unable to control,” Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.
2007). We thus deny the petition for review with respect to Hossain’s asylum
claim.
Hossain argues that the record compels a finding that he is eligible for
withholding of removal. See Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010).
An alien is eligible for withholding of removal if he can show: (1) past persecution
or a “clear probability of future persecution,” Tamang v. Holder, 598 F.3d 1083,
1091 (9th Cir. 2010); see also 8 C.F.R. § 1208.16(b)(1)–(2); (2) that the
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persecution is on account of a protected ground, such as “the alien’s race, religion,
nationality, membership in a particular social group, or political opinion,” 8 U.S.C.
§ 1231(b)(3)(A); and (3) that the persecution comes from “the government or . . .
persons or organizations which the government is unable or unwilling to control,”
Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004) (internal quotation
marks omitted).
The BIA denied Hossain’s petition with respect to withholding of removal
because it concluded that Hossain failed to establish that the 1993 and 1998
incidents were on account of Hossain’s political opinion, and the 1993 incident did
not amount to persecution. The record, however, compels a finding that Hossain’s
political opinion “‘was at least one central reason’ for his mistreatment” for the
1998 incident. Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017 (9th Cir. 2011)
(quoting 8 U.S.C. § 1158(b)(1)(B)(I)). Hossain credibly testified before the
immigration judge that his attackers specifically asked him why he was involved
with his political party while they were beating him. Since there is no other
apparent reason on the record as to why Hossain was attacked, the record compels
a finding that Hossain’s political opinion was one central reason surrounding the
1998 attack. Cf. Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009).
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Because the BIA did not consider whether the 1998 incident constituted
persecution, or whether it was by “the government or . . . persons or organizations
which the government is unable or unwilling to control,” Reyes-Reyes, 384 F.3d at
788 (internal quotation marks omitted), we remand to the BIA for its consideration
in the first instance, see Doissaint v. Mukasey, 538 F.3d 1167, 1170–71 (9th Cir.
2008). If the BIA finds that the 1998 incident involved persecution on account of
political affiliation by the government or persons the government was unwilling to
control, it may need to revisit its conclusions with respect to the 1993 incident.1
See Chand v. INS, 222 F.3d 1066, 1074 (9th Cir. 2000) (explaining that “[w]hen
considering an asylum claim, we consider cumulatively the harm an applicant has
suffered”). We thus grant the petition for review with respect to Hossain’s
withholding of removal claim, and remand to the BIA for further proceedings
consistent with this disposition.
With regard to Hossain’s CAT claim, the record does not compel a finding
that it is more likely than not that Hossain will be tortured “by or at the instigation
1
We note that with regard to the 1993 incident, Hossain was arrested while
trying to organize a political gathering on behalf of his political party, and while
Hossain was in custody police officers specifically cited the name of Hossain’s
political party while saying abusive words. Although Hossain was told by police
that he had been arrested for violating gathering laws, there may be “more than one
central reason” for an arrest. Zhiqiang, 652 F.3d at 1017.
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of or with the consent or acquiescence of a public official or other person acting in
an official capacity,” if he returns to Bangladesh. 8 C.F.R. § 1208.18(a)(1); see
also 8 C.F.R. § 1208.16(c); Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.
2006). We thus deny the petition for review with respect to Hossain’s CAT claim.
Each party shall bear its own costs for this petition for review.
DENIED in part, GRANTED in part, and REMANDED.
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