NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MILLION KIDANE DEGOL, No. 17-72851

Petitioner, Agency No. A208-924-275

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 4, 2019** Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and KOBAYASHI,*** District Judge.

Million Kidane Degol (“Degol”), a native and citizen of Eritrea, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. from an immigration judge’s (“IJ”) decision denying his application for asylum

and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We

review de novo the agency’s legal determinations, and we review its factual

findings for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir.

2011). We dismiss in part and deny in part the petition for review.

Degol challenges both the IJ’s adverse credibility determination and her

alternative holding that Degol’s testimony did not establish persecution on account

of his political opinion. Because the BIA relied solely upon the IJ’s alternative

holding to affirm the removal order, we lack jurisdiction to review the adverse

credibility determination. Villavicencio v. Sessions, 904 F.3d 658, 663 (9th Cir.

2018) (limiting our review to the BIA decision). Accordingly, we dismiss Degol’s

petition for review of the adverse credibility determination.

The agency’s finding that Degol failed to establish that the security officers

were motivated by his political opinion was supported by substantial evidence

because the record evidence does not compel a contrary conclusion. Garcia-

Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). While Degol was

kidnapped, imprisoned, and beaten by Eritrean security forces immediately after

refusing to join the country’s ruling political party, his captors never clearly

articulated their reasons for targeting him. Degol himself admitted that he was

unsure of their motives. Because substantial evidence supports the agency’s

2 finding that Degol failed to establish that his persecutors attacked him on account

of his political opinion, we deny this portion of his petition for review.1

Petition DENIED IN PART and DISMISSED IN PART.

1 Although the dissent sets forth an alternative interpretation of the evidence, that interpretation does not compel us to reach a conclusion contrary to that reached by the agency. Garcia-Milian, 755 F.3d at 1031.

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FILED

Degol v. Barr, No. 17-72851 MAR 3 2020 Paez, J., concurring in part and dissenting in part. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that we lack jurisdiction to review Degol’s

credibility claims. However, I do not believe that substantial evidence supports the

agency’s conclusion that Degol failed to establish persecution on account of his

political opinion. Although our standard of review is deferential, “deference does

not mean blindness.” Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014)

(quoting Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)). Because

the record compels the contrary conclusion, Parada v. Sessions, 902 F.3d 901,

908–09 (9th Cir. 2018), and because both the IJ and BIA ignored Degol’s

testimony relating his captors’ accusations of disloyalty, I respectfully dissent.

To establish that he was persecuted on account of his political opinion,

Degol was not required to present direct evidence of his persecutors’ motives.

“[F]actual circumstances alone may provide sufficient reason to conclude that acts

of persecution were committed on account of political opinion, or one of the other

protected grounds.” Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) (internal

citation omitted). After all, “[p]ersecutors do not always take the time to tell their

victims all the reasons they are being beaten or kidnaped or killed.” Gafoor v.

I.N.S., 231 F.3d 645, 650 (9th Cir. 2000).

Indeed, “this court has held persecution to be on account of political opinion

where there appears to be no other logical reason for the persecution at issue.” Id.; 1 see also Li v. Holder, 559 F.3d 1096, 1099 (9th Cir. 2009). Moreover, “if there is

no evidence of a legitimate prosecutorial purpose for a government’s harassment of

a person . . . there arises a presumption that the motive for harassment is political.”

Ratnam v. INS, 154 F.3d 990, 995 (9th Cir. 1998) (quoting Harpinder Singh v.

Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (internal quotations omitted). This

presumption is more difficult to rebut when the persecution directly follows the

applicant’s political activity. See Deloso v. Ashcroft, 393 F.3d 858, 865 (9th Cir.

2005) (observing that “[t]he timing of the violent acts and threats against” the

petitioner’s family “indicates that they were attacked for political reasons”).

Under this standard, the specific circumstances in Degol’s case compel the

conclusion that he was targeted in retaliation for his political views. Degol twice

publicly criticized the ruling political party and refused to join its ranks.

Immediately following that refusal, Degol was kidnapped and tortured by security

forces. Neither the government nor the agency has offered any alternative motive

for Degol’s persecution. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1020–21 (9th

Cir. 2009) (explaining that the IJ classified Sinha’s persecution as the result of

“random violence” and not racial persecution). To the contrary, unchallenged

evidence in the record indicates that the Eritrean government routinely retaliates

against political dissidents in precisely this fashion.

2 There is also direct evidence of Degol’s captors’ motives. He testified that,

while in prison, an interrogator accused him of belonging to nefarious foreign

interests. Statements of this kind are probative evidence of persecutors’ motives.

See Gafoor, 231 F.3d at 651–52 (holding that Fijian “soldiers’ statements to

Gafoor [to ‘go back to India’ were] unmistakable circumstantial evidence that they

were motivated by his race and imputed political opinion”). When all the evidence

is considered, in my view, it compels a contrary finding, i.e., that Degol was

persecuted on account of his political opinion.

Because neither the IJ nor the BIA took any note of Degol’s testimony

regarding his captors’ statements, I also believe the agency committed legal error

and, therefore, I would remand so that the agency can correct this error. Rather

than taking note of this evidence, the IJ stated that “the extent of the interrogation

was to ask him ‘Why are you here’ or whether he knew why he was detained.”

And the BIA simply concluded that Degol “does not know why he was

imprisoned.”

When the agency fails to consider evidence that is “directly relevant” to past

persecution, we may remand a petition for review so the BIA can properly consider

that evidence. Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013). Because

the agency ignored critical testimony from Degol that was directly relevant to his

3 captors’ motives, it erred as a matter of law. That reason standing alone is

sufficient to remand to the BIA. Id. at 1084.

For the foregoing reasons, I would grant the petition in part and remand for

further proceedings.

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