Marwan Al Bustami v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JUN 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARWAN DARWISH SIRE AL No. 08-74295
BUSTAMI,
Agency No. A079-595-756
Petitioner,
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 7, 2010
Portland, Oregon
Before: HALL, FERNANDEZ, and McKEOWN, Circuit Judges.
Petitioner Marwan Darwish Sire Al Bustami, a native and citizen of Jordan,
was admitted into the United States on March 1, 1999, as a nonimmigrant visitor.
On November 1, 2001, Mr. Al Bustami and his wife, Alia Al Jassar, filed an
application for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Convention Against Torture (“CAT”). They alleged that Ms. Al Jassar’s family
would commit an “honor crime” against the couple for marrying and having
premarital sex against the family’s wishes. The Department of Homeland Security
referred their application to an Immigration Judge (“IJ”). The IJ denied the
couple’s asylum and CAT claims. He also denied Mr. Al Bustami withholding of
removal, but he granted withholding of removal to Ms. Al Jassar. Mr. Al Bustami
appealed, and the Board of Immigration Appeals (“BIA”) affirmed, adopting the
IJ’s decision in its entirety. This court has jurisdiction pursuant to 8 U.S.C. §
1252. We grant the petition in part, vacate in part, and remand to the BIA.
I.
The IJ applied an incorrect legal standard to Mr. Al Bustami’s evidence of
persecution, and he failed to explain adequately why he denied withholding of
removal to Mr. Al Bustami while granting relief to Ms. Al Jassar. Under these
circumstances, the proper course is to remand to the BIA to reconsider petitioner’s
claim under the correct standard and to provide a reasoned explanation for its
decision. See Eneh v. Holder, 601 F.3d 943, 947-49 (9th Cir. 2010); Ornelas-
Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006).
The IJ was correct that there is no such thing as “derivative withholding of
removal,” but this does not mean that Mr. Al Bustami’s claims should be assessed
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in complete isolation from Ms. Al Jassar’s, or that the injuries she has suffered do
not impact the reasonableness of Mr. Al Bustami’s fear of persecution by her
family. We have held that even if derivative asylum is unavailable, harms to
family members should be assessed cumulatively, see Tchoukhrova v. Gonzales,
404 F.3d 1181, 1190-91 (9th Cir. 2005), vacated on other grounds by 549 U.S. 801
(2006), and that physical violence towards close family members can substantiate a
petitioner’s fear of persecution. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067,
1074-75 (9th Cir. 2004) (“The treatment of Baballah’s brother demonstrated that
these threats were not idle.”); Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996)
(“The violence actually committed against other members of [petitioner’s] family,
and repetition of threats to her, made her fear of violence well founded.”). The IJ
does not appear to have applied these principles to Mr. Al Bustami’s claims and
instead may have “formalistically divided” Mr. Al Bustami’s application from his
wife’s. Tchoukrova, 404 F.3d at 1192.
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The IJ also failed to explain adequately why certain aspects of Mr. Al
Bustami’s case were fatal to his withholding claim but not to his wife’s.1 For
example, the IJ emphasized that Ms. Al Jassar’s family had made no effort to find
Mr. Al Bustami in the United States, but he did not explain why the family’s
failure to pursue the couple did not undermine Ms. Al Jassar’s claim. The IJ also
noted the lack of evidence that a “borderline middle age nuclear family at this point
would be subject to realistic harm being inflicted upon them,” but this observation
seems equally applicable to Ms. Al Jassar. The IJ must treat similarly situated
applicants similarly, and he must provide a reasoned explanation for seemingly
inconsistent treatment of closely-related applicants. Njuguna v. Ashcroft, 374 F.3d
765, 771 n.4 (9th Cir. 2004); Wang v. Ashcroft, 341 F.3d 1015, 1019 n.2 (9th Cir.
2003).
1
The government defends the IJ’s decision largely on the grounds that honor
killings are directed at women, and not men such as Mr. Al Bustami. The IJ,
however, did not rest his decision on theses grounds and assumed, at least for the
sake of argument, that Jordanian men who have premarital sex with virgin women
could be considered a “particular social group” for purposes of asylum and
withholding. We cannot address this issue in the first instance, see Gonzales v.
Thomas, 547 U.S. 183, 186-87 (2006), and the BIA may remand to the IJ to
address it in the first instance, if necessary. We note, however, that the Sixth
Circuit has found a “particular social group” in arguably similar circumstances.
See Al-Ghorbani v. Holder, 585 F.3d 980, 995-96 (6th Cir. 2009).
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Lastly, the IJ appears to have misconstrued the chronology of events in a
way that may be materially detrimental to Mr. Al Bustami’s claims. The IJ stated
that Mr. Al Bustami’s marriage request and the revelation of the couple’s sexual
relationship “precipitated the harm” to Ms. Al Jassar. Ms. Al Jassar’s beatings and
Mr. Al Bustami’s arrest, however, both arose as a result of their secret,
disapproved meetings and predated the disclosure of their sexual relationship.
Once Ms. Al Jassar’s brothers learned that she was no longer a virgin, they
explicitly threatened to kill (instead of beat) Ms. Al Jassar and threatened to kill
Mr. Al Bustami for the first time.
II.
Although we grant Mr. Al Bustami’s petition with respect to his withholding
of removal claim, we deny his petition with respect to his CAT claim. The record
does not compel a finding that Mr. Al Bustami would more likely than not be
tortured by or at the acquiescence of a government official if he were removed to
Jordan. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005); Zheng v. Ashcroft,
332 F.3d 1186, 1188 (9th Cir. 2003).
III.
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We GRANT in part Mr. Al Bustami’s petition for review, VACATE in part
the decision of the BIA, and REMAND for reconsideration of Mr. Al Bustami’s
claim for withholding of removal.
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