On Petition for Review of Orders of the Board of Immigration Appeals Agency No. A078-357-911
The opinion of the court was delivered by: Gould, Circuit Judge:
Argued and Submitted May 10, 2011-San Francisco, California
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Algenon L. Marbley, District Judge.*fn1
In these consolidated petitions for review, Petitioner Letekidan Ukabanikiel Haile challenges two decisions of the Board of Immigration Appeals ("BIA"). The first challenge is to the finding that she was statutorily ineligible for asylum, withholding of removal and protection under the Convention Against Torture ("CAT") in the form of withholding of removal based on the terrorism bars in 8 U.S.C. § 1158(b)(2)(A)(v), and the second is to the finding that she is not entitled to deferral of removal under the CAT. Because we hold that the BIA's conclusions that the ELF is a terrorist organization and that Haile engaged in terrorist activities are supported by substantial evidence and that we lack jurisdiction to address other arguments raised by Haile, we deny in part and dismiss in part those aspects of the petitions for review. However, because the record compels the conclusion that the Petitioner has demonstrated that it is more likely than not that upon a return to Eritrea she will be tortured by or with the acquiescence of the Eritrean government, we grant the relief of deferral of removal under the CAT.
Haile is a native of Ethiopia and a citizen of Eritrea.*fn2 She entered the United States with a tourist visa in 1999 but stayed beyond the authorized period. In 2000, Haile filed an application for asylum but her application was denied, and the Department of Homeland Security ("DHS") initiated removal proceedings against her on the charge that she had remained in the United States without authorization. 8 U.S.C. § 1227(a)(1)(B). In removal proceedings, Haile conceded removability and applied for relief from removal in the form of asylum, withholding of removal, and protection under the CAT.
According to Haile's testimony, which the Immigration Judge ("IJ") found credible, she joined the Eritrean Liberation Front ("ELF") in 1977. The ELF is an organization that fought for Eritrea's independence from Ethiopia. Haile stated that the ELF used violence and employed weapons (i.e., guns) in the fight for independence and for the forcible overthrow of the Ethiopian government. Haile had "heard about" members of the ELF attempting to hijack an Ethiopian airline flight, but denied knowing about other specific ELF activities. DHS submitted a set of "incident profiles" from the website of the Memorial Institute for the Prevention of Terrorism ("MIPT") that described terrorist acts perpetrated by the ELF, including kidnappings, hijackings of aircraft, shootings, and car bombings. The incident profiles were admitted over the general objection of Haile's counsel.
As a member of the ELF, Haile "organiz[ed] women" and "would gather and collect fund [sic] or contribute fund [sic]" to the ELF. Using the funds she collected, she sent "provisions like sugar, cigarettes, and shoes" to the ELF through a contact. Haile also collected and passed on documents, the precise contents of which she did not know, but she believed that the documents contained information about how to attack or target the enemy and that the documents would have had a negative impact on the Ethiopian government. A letter from an ELF official confirmed that Haile was "a member of the under-ground cells" in Asmara and that she "was participating in collecting informations [sic] of the enemy, gathering necessary materials for the ELF army, and organi[z]ing Eritrean women to join the organi[z]ation and struggle for their emancipation secretly."
Haile testified that, in 1978, she was arrested by members of the Eritrean People's Liberation Front ("EPLF"), a rival pro-independence organization and detained for a month under poor conditions. Haile was arrested again in 1979, this time by agents of the Ethiopian government, and detained for about a year. She was interrogated and subjected to brutal treatment.*fn3 A judge sentenced Haile to five years' imprisonment, and she served about three years of that sentence. Conditions in prison were poor: there were mice and rats, few bathrooms for many prisoners, and "criminals and crazy people" mixed in with political prisoners. When she returned to Asmara, the ELF "had left the area," but she remained an ELF member until 2002.
Haile fled Eritrea in 1999. A local official and EPLF member named Mohammed Ibrahim had asked to marry her and she had declined. He then showed her a list of members of the ELF who were targeted for arrest, and the list had her name on it. Haile believes that because she refused his marriage offer, if she returns anywhere in Eritrea, Ibrahim would have her killed. Haile testified that ELF members are arrested in Eritrea for voicing their views. She also testified that soldiers had taken her father from his home about ten months prior to the removal hearing, and that her father was interrogated by local officials about Haile and her escape from the country. This account was in part corroborated by a letter from Haile's son that was admitted into evidence, although Haile blamed Ibrahim for the arrest of her father while the letter referred to "soldiers." The letter said that Haile's father died at home from pneumonia after his three-day period of detention, during which he was made to sleep on a cold cement floor. Haile's sister was also arrested, and Haile's son was taken to the police station because he accused the government of causing the death of Haile's father. Haile also submitted supportive reports and articles regarding country conditions in Eritrea, including information on human rights abuses and treatment of political prisoners.
The IJ denied all relief and ordered Haile removed. After reviewing all testimony and evidence, the IJ found, among other things, that the ELF falls within the definition of a terrorist organization, that Haile was a member of the ELF, and that Haile had engaged in terrorist activities. The IJ concluded that Haile was statutorily barred from eligibility for asylum, withholding of removal, and CAT protection in the form of withholding. The IJ denied CAT protection in the form of deferral of removal because Haile did not show that it is "more likely than not" that she would suffer torture upon removal to Eritrea.
Haile appealed to the BIA, but to no avail because the BIA dismissed the appeal, agreeing with the IJ that Haile was ineligible for asylum and withholding and that she did not demonstrate entitlement to deferral of removal under CAT. The BIA found no error in the IJ's finding that the ELF was a terrorist organization. While the IJ appeared to have found Haile ineligible for relief because she had engaged in terrorist activities under § 1182(a)(3)(B)(i)(I), the BIA held that the IJ properly found that Haile was ineligible based on her membership in a terrorist organization, citing § 1182(a)(3)(B)(i)(VI).
After Haile filed an opening brief on appeal to us, the government filed a motion to reopen with the BIA. The BIA agreed sua sponte to reconsider its decision and issued a second decision supplementing its earlier decision. In its second decision the BIA (1) reaffirmed its decision that the IJ correctly determined that the ELF was a terrorist organization; (2) affirmed the IJ's conclusion that Haile was barred from relief for engaging in terrorist activities "based on her activities with and material support of ELF;" and (3) expanded its reasoning with respect to the denial of deferral of removal under CAT. Haile petitioned for review of the second decision of the BIA.
We have jurisdiction over the petitions for review under 8 U.S.C. § 1252(a). See Khan v. Holder, 584 F.3d 773, 779-80 (9th Cir. 2009) (noting jurisdiction over similar claims and recognizing that Bellout v. Ashcroft, 363 F.3d 975 (9th Cir. 2004), which held to the contrary, was decided before passage of the REAL ID Act). Where, as here, the BIA conducts a de novo review of the IJ's decision, the court's review is "limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted." Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quotation marks omitted). Questions of law are reviewed de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). We review factual findings and determinations of mixed questions of law and fact for substantial evidence. Khan, ...