Sanbur Shire v. Attorney General United States

DLD-220 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 18-1116 ___________ SANBUR AGOLE SHIRE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A208-676-080) Immigration Judge: Honorable Roxanne C. Hladylowycz ____________________________________ Submitted on Respondent’s Motion to Remand the Matter to the Board of Immigration Appeals, Petitioner’s Motion to Stay Removal and Petitioner’s Motion for Appointment of Counsel May 24, 2018 Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges (Opinion filed: May 31, 2018) ___________ OPINION* ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Sanbur Agole Shire petitions for review of a decision by the Board of Immigration Appeals (BIA). For the reasons below, we will grant the Government’s motion to remand. Shire, a citizen of Somalia, applied for admission to the United States in October 2015. In December 2015, he was charged as removable as an immigrant who did not possess a valid entry document. Proceeding pro se, Shire applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He alleged that he had been persecuted as a member of the Yibir tribe and accused of practicing witchcraft. An Immigration Judge (IJ) denied his applications, and Shire waived his right to appeal. Shire then retained counsel. He filed a motion to reconsider with the IJ, asserting that he did not knowingly waive his appeal to the BIA. He also sought to reopen his proceedings because he had recently learned that his father was killed by a terrorist group, Al-Shabaab, who believed his father was practicing witchcraft. Another IJ granted the motion to reconsider and reissued the first IJ’s decision, which Shire then appealed. The BIA remanded the matter for a written decision because the IJ had not issued “a separate oral or written decision setting out the reasons for the decision.” A.R. at 79. After a written decision was issued by the first IJ, Shire appealed again. He asked the BIA to consider the motion to reopen he had filed before the IJ. The BIA dismissed the appeal and denied the motion to reopen. Shire filed a pro se petition for review and a motion to stay removal. He has also filed a motion for counsel. The Government does not oppose the stay motion and has filed a motion to remand the matter to the BIA. Disclaiming any error by the BIA, the Government states 2 that a remand will allow the BIA to reconsider whether the harm Shire suffered was on account of his tribal membership. The Government does not explain why the BIA’s decision would be any different on remand. But for the reasons below, we agree that the BIA should reconsider its decision and will grant the motion to remand. Asylum and Withholding of Removal To establish eligibility for asylum, Shire needs to demonstrate either past persecution ...

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