Almaghzar

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

Respondent’s Unopposed Request for Modification of the Decision is GRANTED. The opinion filed on June 8, 2006, and published at 450 F.3d 415 (9th Cir.2006), is AMENDED as follows.

On page 422 of the opinion, the first paragraph under the subheading “B. The Merits of Almaghzar’s CAT Claim” begins as follows:

The second sentence of that paragraph is deleted, and the citation to Kamalthas is moved to follow the citation to 8 C.F.R. § 208.16 (c)(2), so that the final paragraph now begins as follows:

IT IS SO ORDERED.

OPINION

Petitioner-Appellant Abdul Almaghzar (Almaghzar), a native and citizen of Yemen, appeals the district court’s denial of his petition for a writ of habeas corpus. We construe his petition as a timely filed petition for review of a decision of the Board of Immigration Appeals (BIA). 1 In his petition Almaghzar con *918 tends (1) that the frivolous asylum application bar was erroneously applied to his asylum application, (2) that the Immigration Judge (IJ) incorrectly disregarded testimony that explained discrepancies in Almaghzar’s testimony, (3) that Almaghzar was not allowed to present a claim under the…

concurring in part and dissenting in part:

Both the immigration judge (IJ) and the Board of Immigration Appeals (BIA) completely ignored our standards for adjudicating Convention Against Torture (CAT) claims as explicated in Kamalthas v. INS, 251 F.3d 1279 (9th Cir.2001). The IJ committed two interrelated errors, neither of which the BIA corrected. First, the IJ uncritically imported the adverse credibility determination from the asylum context into the CAT context. Second, the IJ failed to articulate with any specificity why the country conditions evidence of torture in Yemen, along with the other evidence in the record, did not suffice to establish Almaghzar’s CAT claim. Accordingly, although I concur in most of the other aspects of the majority’s opinion, 1 I respectfully dissent from the majority’s holdings regarding Almaghzar’s CAT claim and would remand that claim to the BIA for reevaluation in light of Yemeni country conditions evidence.

Two years before Almaghzar’s 2003 hearing, Kamalthas held that “a claim under the Convention [Against Torture] is not merely a subset of claims for either asylum or withholding of removal,” but rather is an “analytically separate” claim.…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDUL R. ALMAGHZAR, 

Petitioner-Appellant, No. 04-35863 v.  D.C. No.

CV-04-01888-PA

ALBERTO R. GONZALES, Attorney General, OPINION Respondent-Appellee.  Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior Judge, Presiding

Argued and Submitted September 12, 2005—Portland, Oregon

Filed June 8, 2006

Before: Raymond C. Fisher, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Gould; Partial Concurrence and Partial Dissent by Judge Fisher COUNSEL

Philip James Smith, Portland, Oregon, for petitioner-appellant Abdul R. Almaghzar.

Kenneth C. Bauman, Assistant United States Attorney, Port- land, Oregon, for respondent-appellee Alberto Gonzales, Attorney General. 6314 ALMAGHZAR v. GONZALES

OPINION

GOULD, Circuit Judge:

Petitioner-Appellant Abdul Almaghzar (Almaghzar), a native and citizen of Yemen, appeals the district court’s denial of his petition for a writ of habeas corpus. We construe his petition as a timely filed petition for…