Egeh

MEMORANDUM *

Nagib Egeh, native of Somalia, appeals from the Board of Immigration Appeals’ (“BIA”) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 (b), and we grant and remand to the BIA with an open record.

The government’s argument that Egeh waived his asylum claim and his CAT claim is without merit. He argued both issues in his brief to the BIA. See Zara v. Ashcroft, 383 F.3d 927, 929-30 (9th Cir.2004) (examining both the notice of appeal and the brief for waiver of claim).

The Immigration Judge (“IJ”) erred by relying on Egeh’s means of entry as a basis for a discretionary denial of asylum without adequately considering the totality of circumstances. Under Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987), the IJ was required to consider “the totality of the circumstances and actions of an alien in his flight from the country where he fears persecution.” Id. at 473 . The use of a false passport “is only one of a number of factors which should be balanced in exercising discretion, and the weight accorded to this factor may vary depending on the facts of a…