Case: 19-60807 Document: 00516027931 Page: 1 Date Filed: 09/24/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 24, 2021 No. 19-60807 Lyle W. Cayce Clerk Muntaser B. Abubaker Abushagif, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals No. A 200 910 227 Before Smith, Higginson, and Engelhardt, Circuit Judges. Jerry E. Smith, Circuit Judge: Muntaser Abushagif, a Libyan national, applied for asylum, with- holding of removal, and protection under the Convention Against Torture (“CAT”) in September 2011. At his hearing, he voluntarily withdrew his application and agreed to pre-conclusion voluntary departure; the immigra- tion judge (“I.J.”) ordered him to leave the country by April 5, 2012. In 2019, Abushagif moved to reopen his proceedings, seeking the same relief on the basis that country conditions in Libya had worsened and that he feared reprisal for his role in the former regime’s national guard. Moreover, he asserted that he had converted to Christianity and was bisexual and feared Case: 19-60807 Document: 00516027931 Page: 2 Date Filed: 09/24/2021 No. 19-60807 persecution on those bases too. The I.J. denied his motion, and the Board of Immigration Appeals (“BIA” or “Board”) dismissed his appeal. Abushagif petitioned for this court’s review. We grant in part, deny in part, and remand for the limited purpose of the Board’s assessing his CAT claim. I. A. Abushagif was admitted to the United States as a non-immigrant stu- dent but failed to carry a full course of study despite a condition that he do so. For that reason, the Department of Homeland Security (“DHS”) sought to have him removed in September 2010. Shortly afterward, Libya was engulfed in a civil war that erupted in February 2011. In September 2011, with the war raging in Libya but with Muammar Qadhafi still leading the country, Abushagif applied for asylum, withholding of removal, and protection under CAT. In his application, Abushagif alleged that his brother had been jailed for declining to join Qadhafi’s forces in killing civilians. Abushagif was afraid that if he returned to Libya, he would be conscripted to fight for Qadhafi “against [his] own people,” “just like . . . all young people in Libya.” Abu- shagif noted that Qadhafi’s forces had asked his father about Abushagif’s whereabouts. Abushagif stated that he did not want to participate in the civil war. In the part of his application for asylum and for withholding of removal that asked about political, religious, and military affiliations, Abushagif stated only that he had organized a group of friends to talk about Libyan poli- tics and economics, and he explicitly disclaimed that that group had engaged in any subversive activities. In response to a question that asked specifically about his involvement in “military or paramilitary group[s], civil patrol[s], [and] guerilla organization[s],” Abushagif failed to indicate that either he or 2 Case: 19-60807 Document: 00516027931 Page: 3 Date Filed: 09/24/2021 No. 19-60807 any family members …
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