Chhoeung v. Mukasey

294 F. App'x 340

Opinion

MEMORANDUM

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Vannak Chhoeung petitions for review of the Board of Immigration Appeals’ (“BIA”) adoption and affirmance of the Immigration Judge’s (“IJ”) denial of asylum, statutory withholding, and withholding of removal under the Convention Against Torture. Because the parties are familiar with the factual and procedural history of this case, we need not recount it here.

Where, as here, the BIA cites Matter of Burbano and does not express any disagreement with any part of the IJ’s decision, the BIA is understood to have undertaken an independent review of the record and adopted the IJ’s decision in its entirety. Abebe v. Gonzales, 432 F.3d 1037,1040 (9th Cir.2005). Where the BIA adopts the IJ’s decision, we review the IJ’s decision as if it were that of the BIA, and the final agency decision. Id. at 1039; Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005).

In reviewing Chhoeung’s petition for relief, the IJ determined that Chhoeung was statutorily ineligible for relief because he had persecuted others. Subsequent to the IJ and BIA decisions in this case, we decided Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir.2006), which established the analytical framework relevant to determining statutory ineligibility for asylum based on a petitioner’s persecution of others. Specifically, Miranda Alvarado requires “a particularized evaluation of both personal involvement and purposeful assistance in order to ascertain culpability.” Id. at 927. Because neither the BIA nor the IJ had the benefit of Miranda Alvarado when the respective agency decisions were issued, and because Chhoeung has a colorable argument for relief under the case, we grant the petition for review and remand for the BIA’s reconsideration of the case in light of Miranda Alvarado. We do not prejudge the results of that inquiry, nor do we place any limits on the scope of the BIA’s reconsideration.

REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.