Mumin Abass v. Jefferson Sessions

FILED NOT FOR PUBLICATION APR 27 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MUMIN ABASS, No. 16-74045 Petitioner, Agency No. A208-302-495 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 9, 2018 San Francisco, California Before: D.W. NELSON, KLEINFELD, and W. FLETCHER, Circuit Judges. Mumin Abass, a native and citizen of Ghana, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the agency’s factual findings. Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (citations omitted). We reverse the BIA’s finding of ineligibility for relief only if the evidence “compels” the reversal. Zi Zhi Tang v. Gonzales, 489 F.3d 987, 990 (9th Cir. 2007). We grant the petition for review and remand. I. Asylum The BIA’s only basis for denying Abass’s asylum application was that Abass had not met his burden to show that the Ghanian government is “unable or unwilling to protect him from anti-gay violence or harm.” In its answering brief, the government does not argue that Abass did not suffer past persecution; rather, the government only asks us to remand because, in light of our decision in Bringas-Rodriguez, 850 F.3d 1051 (9th Cir. 2017) (en banc), the agency should have another opportunity to elicit testimony from Abass about whether he reported his attack to the police, and if not, why not. Our “unable and unwilling” standard was already established at the time both the IJ and BIA rendered their decisions. Prior to Bringas-Rodriguez, we articulated several ways the government’s inability and unwillingness to control persecution could be proven. See, e.g., Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010) (“demonstrating that a country’s laws or customs effectively deprive the petitioner of any meaningful recourse to governmental protection”); Id. 2 at 922 (citing Avetova-Elisseva v. INS, 213 F.3d 1192, 1198 (9th Cir. 2000)) (“establishing that private persecution of a particular sort is widespread and well- known but not controlled by the government”); id. (quoting Ornelas-Chavez v. Gonzalez, 458 F.3d 1052, 1058 (9th Cir. 2006) (“convincingly establish[ing] that [reporting] would have been futile or [would] have subjected [the applicant] to further abuse”). We have also maintained that “reporting persecution to government authorities is not essential to demonstrating that the government is unable or unwilling to protect [a petitioner] from private actors.” Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010). Even under these already established standards, the BIA disregarded and mischaracterized substantial evidence demonstrating that Ghanian officials are unwilling to protect LGBT individuals. The record shows that police often partake in extortions targeting gay persons and are ...

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