Abdul Ritha v. Ashcroft

dissenting.

I respectfully dissent. Substantial evidence supports the BIA’s determination that Abdul-Ritha failed to satisfy the objective component of a well-founded fear of persecution. Abdul-Ritha’s family continues to live prosperously in Najef, maintaining three stores and a large home. When Abdul-Ritha was in the army he was given the important assignment of guarding underground shelters designated as Ba’ath party officials’ meeting places. He was granted extended weekend leave privileges. Following his desertion, he lived in Baghdad for a year with his brother, commuting daily, presumably through the streets of Baghdad, to his brother’s factory. He never testified that he was in hiding, only that, because Baghdad was big, it was an easier city in which to hide. Thus, the evidence does not compel a contrary result. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir.2004).

MEMORANDUM **

Hazim Abdul Ritha, a native and citizen of Iraq, petitions for review of the Board of Immigration Appeal’s (BIA) decision vacating an Immigration Judge’s (IJ) grant of his application for asylum and denying his applications for withholding of removal and for protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 (a)(1), and we grant the petition.

When the BIA conducts an independent review of the IJ’s findings, this court re *608 views the BIA’s decision and not that of the IJ. See Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). Findings made by the BIA are reviewed under the substantial evidence standard. See Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999).

The Attorney General has discretion to grant asylum to a “refugee,” defined as an alien unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A). The BIA found that Abdul Ritha’s application failed to demonstrate that he had been the victim of past persecution, because the…