FILED NOT FOR PUBLICATION JUL 1 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WAHIB SAEED MOHAMMED AL No. 20-71374 BANNA, Agency No. A215-820-829 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 15, 2021** Anchorage, Alaska Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges. Petitioner, a citizen and native of Yemen, seeks review of the BIA decision denying petitioner’s application for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). The BIA determined * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). that petitioner was ineligible for asylum and withholding pursuant to 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), because he had provided “material support” to the Houthi militia, a terrorist organization. The BIA also ruled that petitioner had not demonstrated that he was eligible for deferral of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we deny the petition.1 “We review only the BIA’s opinion, except to the extent that it expressly adopted portions of the IJ’s decision.” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020). The BIA expressly stated that it did not reach the IJ’s alternative determinations on nexus. The BIA’s factual findings underlying its determination that a petitioner is not eligible for asylum, withholding of removal, or CAT relief are reviewed for substantial evidence, Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007), and its determinations on questions of law are reviewed de novo, Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012). 1. Where the BIA concludes a petitioner is ineligible for asylum or withholding of removal pursuant to the material support bar, we retain jurisdiction to consider “colorable constitutional claims or questions of law,” including mixed questions of fact and law where the facts are undisputed. See Rayamajhi v. 1 The parties are familiar with the facts and we recount them only as necessary to resolve the issues on appeal. 2 Whitaker, 912 F.3d 1241, 1244 (9th Cir. 2019); see also 8 U.S.C. § 1252(a)(2)(D); Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009).. Petitioner contends the BIA erred as a matter of law by concluding that paying his household expenses and paying nominal tolls amounted to “material support” of the Houthi militia because the Houthi militia had taken over as the de facto government. The government characterizes petitioner’s brief as raising a duress argument. In Annachamy v. Holder, we held that “the material support bar does not include an implied exception for individuals . . . who provide support [to a terrorist organization] under duress.” 733 F.3d 254, 267 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder, 774 F.3d 517, 526 …
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