Abdul R. Almaghzar v. Alberto R. Gonzales, Attorney General

450 F.3d 415 Abdul R. ALMAGHZAR, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee. No. 04-35863. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 12, 2005. Filed June 8, 2006. COPYRIGHT MATERIAL OMITTED Philip James Smith, Portland, OR, for petitioner-appellant Abdul R. Almaghzar. Kenneth C. Bauman, Assistant United States Attorney, Portland, OR, for respondent-appellee Alberto Gonzales, Attorney General. Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-04-01888-PA. Before RAYMOND C. FISHER, RONALD M. GOULD, and CARLOS T. BEA, Circuit Judges. GOULD, Circuit Judge. 1 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 contends (1) that the frivolous asylum application bar was erroneously applied to his asylum application, (2) that the Immigration Judge (IJ) incorrectly disregarded testimony…

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 *424 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”…

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 contends (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 Convention Against Torture (CAT), 2 (4) that Almaghzar’s hearing violated his right to due process under the Fifth *418 Amendment, 3 and (5) that the IJ erred in concluding that Almaghzar’s two prior criminal convictions were particularly serious crimes. In its reasoned opinion the BIA rejected these arguments, and we affirm.

I

Almaghzar arrived in the United States from Yemen in November of 1992. Almaghzar filed a Request for Asylum dated December 9, 1992, in which he gave an Anaheim, California, address. In his asylum application, Almaghzar stated that if forced to return to Yemen he…