Wahib Al Banna v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 1, 2021
• Docket: 20-71374
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 1 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WAHIB SAEED MOHAMMED AL No. 20-71374 BANNA, Agency No. A215-820-829 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 15, 2021** Anchorage, Alaska

Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.

Petitioner, a citizen and native of Yemen, seeks review of the BIA decision

denying petitioner’s application for asylum, withholding of removal, and deferral

of removal under the Convention Against Torture (CAT). The BIA determined

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). that petitioner was ineligible for asylum and withholding pursuant to 8 U.S.C.

§ 1182(a)(3)(B)(iv)(VI), because he had provided “material support” to the Houthi

militia, a terrorist organization. The BIA also ruled that petitioner had not

demonstrated that he was eligible for deferral of removal. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a) and we deny the petition.1

“We review only the BIA’s opinion, except to the extent that it expressly

adopted portions of the IJ’s decision.” Velasquez-Gaspar v. Barr, 976 F.3d 1062,

1064 (9th Cir. 2020). The BIA expressly stated that it did not reach the IJ’s

alternative determinations on nexus. The BIA’s factual findings underlying its

determination that a petitioner is not eligible for asylum, withholding of removal,

or CAT relief are reviewed for substantial evidence, Arteaga v. Mukasey, 511 F.3d

940, 944 (9th Cir. 2007), and its determinations on questions of law are reviewed

de novo, Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).

1. Where the BIA concludes a petitioner is ineligible for asylum or

withholding of removal pursuant to the material support bar, we retain jurisdiction

to consider “colorable constitutional claims or questions of law,” including mixed

questions of fact and law where the facts are undisputed. See Rayamajhi v.

1 The parties are familiar with the facts and we recount them only as necessary to resolve the issues on appeal. 2 Whitaker, 912 F.3d 1241, 1244 (9th Cir. 2019); see also 8 U.S.C. § 1252(a)(2)(D);

Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009)..

Petitioner contends the BIA erred as a matter of law by concluding that

paying his household expenses and paying nominal tolls amounted to “material

support” of the Houthi militia because the Houthi militia had taken over as the de

facto government.

The government characterizes petitioner’s brief as raising a duress argument.

In Annachamy v. Holder, we held that “the material support bar does not include an

implied exception for individuals . . . who provide support [to a terrorist

organization] under duress.” 733 F.3d 254, 267 (9th Cir. 2013), overruled in part

on other grounds by Abdisalan v. Holder, 774 F.3d 517, 526 (9th Cir. 2015) (en

banc). To the extent petitioner raises duress, that argument is foreclosed by our

caselaw.

Petitioner also raises a policy argument, urging us to adopt a reading of 8

U.S.C. § 1182(a)(3)(B)(iv)(VI) that would exempt those who transfer funds to a

terrorist organization for necessary services when the terrorist organization

becomes the de facto government in an area. Even if we were to agree with

petitioner that the BIA’s broad reading of “material support” leads to troubling

results, he has not provided any statutory analysis of § 1182(a)(3)(B)(iv)(VI) to

3 suggest that Congress intended a different meaning. See Fed. R. App. P. 28(a)(8)

(Appellant’s brief must contain “appellant’s contentions and the reasons for them,

with citations to the authorities and parts of the record on which the appellant

relies”). Petitioner has not shown that the BIA misapplied the material support bar.

2. Petitioner failed to show his claim for deferral of removal under the CAT

was incorrectly dismissed. Substantial evidence supports the BIA’s conclusion

that petitioner could reasonably relocate within Yemen to avoid torture. The IJ

found large areas of southern Yemen are beyond Houthi control, and Petitioner did

not show he would be unable to relocate to an area outside of Houthi control.

Petitioner also contends he could not relocate to other areas of Yemen

because they were controlled by Al Qaeda, a group to which petitioner is opposed.

This argument presents a false dichotomy, suggesting petitioner’s only options are

to live in an area under the Houthi control or Al Qaeda control. A map of Yemen

in the record shows areas of Yemen that are not controlled by either the Houthi

militia or Al Qaeda. Accordingly, the record does not compel a finding that it

would be unreasonable for petitioner to relocate within Yemen.

PETITION DENIED.