Harry Freeman v. Eric Holder, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2013
• Docket: 09-73925
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 24 2013

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

HARRY FREEMAN, No. 09-73925

Petitioner, Agency No. A089-814-444

v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted August 29, 2013 Pasadena, California

Before: O’SCANNLAIN, BEA, and CHRISTEN, Circuit Judges.

Pursuant to 8 U.S.C. § 1252, Harry Freeman, a native and citizen of Liberia,

petitions for review of an order by the Board of Immigration Appeals (“BIA”)

denying his claim for withholding of removal. We grant the petition and conclude

that Freeman is entitled to withholding.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The agency found that Freeman was entitled to a presumption of eligibility

for withholding of removal because he had suffered past persecution on the basis

of ethnicity. As the Immigration Judge (“IJ”) noted, ethnicity appears to have been

“the basis of the civil war” in Liberia. The IJ’s finding of past persecution was not

contested. Contrary to the government’s argument, the issue of ethnicity cannot be

cleanly divorced from the involvement of Freeman and his family in the war.

To meet the burden of finding changed country conditions, the government

was “obligated to introduce evidence that, on an individualized basis, rebuts a

particular applicant’s specific grounds for his well-founded fear of future

persecution.” Popova v. INS, 273 F.3d 1251, 1259 (9th Cir. 2001) (internal

quotation marks omitted). “Information about general changes in the country is

insufficient for the government to overcome the presumption.” Lopez v. Ashcroft,

366 F.3d 799, 805 (9th Cir. 2004). State Department country reports may be a

good resource, but “they typically are not amenable to an ‘individualized analysis’

tailored to an [] applicant’s particular situation.” Kamalyan v. Holder, 620 F.3d

1054, 1057 (9th Cir. 2010).

The IJ found Freeman to be a credible witness. Freeman cited a fear of

retribution by former rebels arising from his family’s role in the war, and the fact

that his former rebel enemies had assumed powerful positions in Liberia. Given

2 the specificity of this fear in light of the details Freeman presented about the

particular acts of persecution he suffered, the government could not rebut his

presumption with the general information it cited from a 2008 country report.

In the immigration context, courts should remand when the agency has not

yet had the opportunity to consider a factual question regarding a petitioner’s

circumstances. See, e.g., INS v. Ventura, 537 U.S. 12, 17 (2002) (holding that

agency must be allowed to decide question of changed country conditions in the

first instance); Lopez, 366 F.3d at 806–07 (remanding where agency had applied

incorrect legal standard). But where BIA has fully considered the relevant

circumstances under the proper standard, and its conclusion is not supported by

substantial evidence, courts need not remand simply to give the agency the

opportunity to make its case more persuasively. See Mutuku v. Holder, 600 F.3d

1210, 1214–15 (9th Cir. 2010) (finding remand unnecessary where government

failed to meet its burden); Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.

2004) (finding remand unnecessary where agency did not present evidence of

changed conditions and represented that all relevant factual issues had been

considered in hearing).

Here, the agency applied the correct legal standard, as evidenced by BIA’s

citation to this court’s “individualized analysis” standard in its decision. But the

3 evidence BIA relied upon did not rebut Freeman’s presumption. We conclude that

remand is unnecessary, and that Freeman is entitled to withholding of removal.

GRANTED.