Zoghbi v. Gonzales

MEMORANDUM * Wassim Zoghbi appeals the decision of the Board of Immigration Appeals (“BIA”), adopting the ruling of an Immigration Judge (“IJ”) that deemed his asylum application abandoned because he left the country for 19 days to go to Lebanon — the country from which he seeks refuge — where his father was undergoing heart surgery. We hold that the IJ improperly decided that petitioner had abandoned his application. Because petitioner sought advance parole prior to departure, his claim is governed by 8 C.F.R. 208.8(b), which provides that: An applicant who leaves the United States pursuant to advance parole under — 598 — § 212.5(f) of this chapter and returns to the country of claimed persecution shall be presumed to have abandoned his or her application, unless the applicant is able to establish compelling reasons for such return. The IJ reasoned that Zoghbi “went with a father who chose to go there because medical care was cheaper.” “Since, in fact, his father didn’t have a compelling reason to go there, he just went there to save money on the operation, I find the respondent did not have a compelling reason to go.” We agree with Zoghbi that the IJ’s focus should have been on whether petitioner had a compelling reason to accompany his father to Lebanon, not whether Zoghbi’s father had a compelling reason for seeking medical treatment there. Tending to the serious illness and surgery of his father provided petitioner with a compelling reason to go to Lebanon. See e.g., 8 U.S.C. § 1229a(e)(1) (noting that “exceptional circumstances” in excusing failure to appear at hearing refers to “serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances beyond the control of the alien”). In the alternative, the IJ concluded that even if petitioner had not abandoned his asylum application, he nonetheless was ineligible for asylum or withholding of removal because he failed to demonstrate that he was persecuted. The BIA also affirmed this holding. To demonstrate past persecution, a petitioner “must show that he was harmed on account of his race, religion, nationality, membership in particular social group, or political opinion.” Montoya-Ulloa v. INS, 79 F.3d 930, 931 (9th Cir.1996). The main incident petitioner detailed in support of his claim for refugee status involved his beating at the checkpoint border on his way from West to East Beirut. The beating, which caused him to go to the hospital and seek treatment, constitutes persecution or harm within the meaning of the act. Id. The IJ, however, found that the beatings were not on account of petitioner’s religion but instead were a general response to individuals who attempted to enter the Hezbollah-controlled area of Lebanon. The IJ categorized the beating as done in furtherance of a war, rather than arising from a religious conflict, saying that Zoghbi was beaten “primarily and almost entirely because that serve [sic] the military purposes of the Hesbollah to keep potential opponents out of their area.” However, the IJ also stated that “I’m sure Hesbollah, as Muslims, dislike the respondent because he was a Christian and viewed him as an opponent.” Although the IJ found that Zoghbi suffered persecution primarily because of the military dispute in that region, he acknowledged petitioner’s religion was another basis for Hezbollah’s actions. “[P]ersecutory conduct may have more than one motive, and so long as one motive is one of the statutorily enumerated grounds, the requirements have been satisfied.” Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir.1995). Petitioner thus has established that he was persecuted, under a mixed motive theory. Zoghbi’s past persecution creates a rebuttable presumption of a well-founded fear of future persecution, 8 C.F.R. § 208.13(b)(1), and therefore potentially qualifies him for a discretionary grant of asylum status under 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A), or withholding of removal under 8 C.F.R. § 208.16(b)(1)(i). Therefore, we remand to the BIA to determine whether Zoghbi — 599 — qualifies for asylum and -withholding of removal and, if appropriate, to exercise discretion on behalf of the Attorney General with regard to asylum. INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Our remand is without prejudice to the BIA considering evidence that there has been a fundamental change in circumstances such that Zoghbi no longer has a well-founded fear of persecution in Lebanon or that he could avoid persecution by moving to another part of Lebanon. See 8 C.F.R. §§ 208.13(b)(1)(i)(A)-(B), 208.16(b)(1)(i)(A)-(B). PETITION GRANTED; REMANDED. Footnotes [*] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.