NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BOREY AI, No. 18-70032 Petitioner, Agency No. A027-737-360 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 16, 2020 San Francisco, California Before: WATFORD, FRIEDLAND, and MILLER, Circuit Judges. Borey Ai, a native of Thailand and citizen of Cambodia, seeks review of an order of the Board of Immigration Appeals affirming an immigration judge’s denial of Ai’s application for deferral of removal under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition and remand. Ai claims that he will be tortured if removed to Cambodia because he is a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. cultural outsider to Cambodia with a criminal record and family ties to the Khmer Rouge. Before Ai was born, the Khmer Rouge captured Ai’s mother, forced her into a labor camp, and killed most of her family. The Khmer Rouge also captured Ai’s aunt and conscripted her into the military. Ai’s mother fled to Thailand, where he was born. At age five, Ai came to the United States. At age 14, he was convicted of second-degree murder and robbery in a California state court. After serving his sentence, Ai was placed in removal proceedings. He has never set foot in Cambodia. Ai presented the testimony of Dr. Peg Levine, a clinical psychologist and medical anthropologist with specialized knowledge of Cambodia and the Khmer Rouge regime. Dr. Levine stated that Ai’s personal history makes it “probable” that he would be tortured in Cambodia. Specifically, Dr. Levine explained that Ai’s criminal record, outsider status, and family ties to the Khmer Rouge would place him at risk of wrongful conviction by the Cambodian government and torture in a Cambodian prison, or of extrajudicial abduction and murder. Dr. Levine concluded that there was a 70 percent chance that the connection between Ai’s mother and the Khmer Rouge would be discovered and a 60 to 80 percent chance that Ai would be tortured. The immigration judge “g[ave] Dr. Levine’s risk assessment very limited weight because [Dr. Levine] failed to provide a satisfactory basis for her statistical 2 conclusion,” and “her assessment [was] not based on established principles of statistics, but largely on her own interpretation of soft data.” The immigration judge also emphasized that “Dr. Levine is not an expert on the treatment of U.S. deportees to Cambodia or prisoners.” For the same reasons, the Board agreed that Dr. Levine’s testimony was “not entitled to great weight.” The Board concluded that the remaining evidence was insufficient to establish that it was more likely than not that Ai would be tortured if removed to Cambodia. We conclude that the Board’s rejection of Ai’s claim was not supported by substantial ...
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