FILED NOT FOR PUBLICATION JAN 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JANAMJET SODHI, No. 18-73348 Petitioner, Agency No. A072-117-532 v. MEMORANDUM* JEFFREY A. ROSEN, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 11, 2020 Pasadena, California Before: N.R. SMITH and LEE, Circuit Judges, and KENNELLY,** District Judge. Partial Concurrence and Partial Dissent by Judge LEE Janamjet Sodhi, a native and citizen of India, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), which affirmed an immigration judge’s (“IJ”) conclusion that his conviction was a particularly serious * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. crime and an IJ’s denial of his application for deferral of removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part, deny in part, and remand for further proceedings. 1. The BIA properly concluded that Sodhi was ineligible for asylum and withholding of removal, because his conviction of four counts of mail fraud under 18 U.S.C. § 1341 was a particularly serious crime. Our review is limited “to ensuring that the agency relied on the appropriate factors and proper evidence to reach this conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (internal quotation marks and alteration omitted) (quoting Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010)). Accordingly, the record shows that the BIA applied the correct legal standard by properly applying and weighing the factors set forth in Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982). The BIA was not bound by the district court’s statements in the criminal proceeding, nor was it required to specifically address the danger-to-community prong. See Anaya-Ortiz, 594 F.3d at 679. 2. Substantial evidence does not support the BIA’s denial of CAT relief. Despite finding that Sodhi was credible, neither the IJ nor the BIA credited Sodhi’s testimony or the declarations of his parents that the Punjabi police were aware that 2 Sodhi was in removal proceedings and that they were going to arrest Sodhi when he returned to India. Further, the IJ and the BIA concluded that Sodhi was not active in the Khalistan movement; however, neither the IJ nor the BIA explained why Sodhi’s credible testimony that he believed in and supported the Khalistan movement (including taking part in rallies) was insufficient to establish that he was an active supporter. This was error.1 See Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011) (“[W]here there is any indication that the BIA did not consider all of the evidence before it, . . . the decision cannot stand. Such indications include misstating the record and failing to mention ...
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