Lutfi Ghousheh v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 15-73386
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUTFI GHOUSHEH, No. 15-73386

Petitioner, Agency No. A070-064-547

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted March 14, 2018 Submission Deferred March 15, 2018 Resubmitted April 13, 2018 San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior District Judge.

Petitioner Lutfi Ghousheh challenges the Board of Immigration Appeals’

(“BIA”) determination that Ghousheh is subject to the “terrorism bar” and is thus

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. ineligible for cancellation of removal. We grant his petition and remand his case to

the agency for further proceedings.

An alien who “has received military-type training . . . from or on behalf of

any organization that, at the time the training was received, was a terrorist

organization” is barred from, among other forms of relief, cancellation of removal.

8 U.S.C. § 1182(a)(3)(B)(i)(VIII); see id. § 1229b(c)(4). As relevant here,

“terrorist organization” means “a group of two or more individuals, whether

organized or not, which engages in, or has a subgroup which engages in” terrorist

activities. Id. § 1182(a)(3)(B)(vi)(III). It is uncontested that, if not for this

terrorism bar, Ghousheh would be eligible for, and entitled to, cancellation of

removal.

In 1982, Ghousheh received three days of military training from the

Palestinian Liberation Army in Lebanon (“PLA in Lebanon”). The Immigration

Judge (“IJ”) found that, at the time, the PLA in Lebanon was a subgroup of the

Palestinian Liberation Organization (“PLO”) and that the PLO was a terrorist

organization. The BIA saw no clear error in these findings, and substantial

evidence supports both.1

1 As to the former finding, record evidence indicates that in 1982 countries such as Jordan, Iraq, Syria, and Egypt had PLA brigades attached to, and taking orders from, their respective militaries. The same evidence, however, indicates that Lebanon did not. Ghousheh testified that, instead, the PLA in Lebanon was taking at least some of its orders from the PLO.

2 Based on these findings, the BIA concluded that the terrorism bar applied,

reasoning that “the PLA [in Lebanon], as part of the PLO, thus was also a terrorist

organization,” and so Ghousheh had “received military-type training from a

terrorist organization.” This reasoning conflicts with the plain terms of the statute.2

Again, as relevant here the term “terrorist organization” means “a group of two or

more individuals, whether organized or not,” which either (1) “engages in” terrorist

activities itself, or (2) “has a subgroup which engages” in terrorist activities. Id.

§ 1182(a)(3)(B)(vi)(III). Although the PLA in Lebanon was clearly “a group of

two or more individuals,” nothing in the record suggests that, as it existed in 1982,

the PLA in Lebanon met either of the other two statutory criteria.

The government urges us to deny Ghousheh’s petition nevertheless, arguing

that although Ghousheh received military training “from” the PLA in Lebanon, his

training was still received “on behalf of” the PLO. But we “cannot deny a petition

for review on a ground that the BIA itself did not base its decision.” Hernandez-

As to the latter finding, an expert in Middle Eastern Studies testified that around the same time the PLO itself engaged in terrorist activities. Record evidence also indicates that a PLO subgroup called Al-Fatah engaged in terrorist activities, including the killing of thirty-four Israelis near Haifa in 1978. 2 “Where—as here—a BIA decision interpreting a statute is ‘unpublished and issued by a single member of the BIA,’” the decision receives only deference “proportional to its thoroughness, reasoning, consistency, and ability to persuade.” Lezama-Garcia v. Holder, 666 F.3d 518, 524-25 (9th Cir. 2011) (quoting Mejia- Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir.2011)).

3 Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir. 2011). And here the BIA denied

relief solely on the ground that Ghousheh received military training “from” the

PLA in Lebanon.3 Indeed, the body of the BIA’s decision never mentions the

statutory phrase “on behalf of.” We therefore grant the petition and remand to the

BIA so that the BIA may consider in the first instance whether Ghousheh is subject

to the terrorism bar for the reasons on which the Government now relies.

PETITION GRANTED AND REMANDED.

3 We review only the BIA’s decision, except where it expressly incorporates the IJ’s decision. See Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015).