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Nuru v. Gonzales

United States Court of Appeals for the Ninth Circuit

March 24, 2005, 1 Resubmitted, Pasadena, California; April 21, 2005, Filed

No. 03-71391

Opinion

 [*1212]  REINHARDT, Circuit Judge:

Warfare still continues to produce cruel, inhuman, and degrading acts of torture sanctioned or tolerated by government officials and committed even in lands that consider themselves civilized. The case before us involves one of those occurrences and requires us to decide whether the law permits the United States government to remove a victim of such treatment to his home country where he would likely, once again, be subjected to the infliction of severe physical pain and suffering, if not death.

Ukashu Nuru, a native and citizen of Eritrea, petitions for review [**2]  of the Board of Immigration Appeals' ("BIA" or "Board") final order of removal, including the order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT" or "Convention"). The immigration judge found Nuru to be a credible witness but denied him relief on the grounds that he had not suffered past persecution as a result of his political opinion and that he would not be tortured if he were returned to Eritrea. The BIA adopted these findings and further found that Nuru's punishment by the Eritrean military was not disproportionately harsh and that he had not presented evidence that any punishment he would receive in the future would be disproportionately harsh or would be inflicted on account of his political beliefs.

On review, Nuru argues that it is more probable than not that he will be tortured if he is returned to Eritrea, that he suffered persecution "on account of" his political opinion in the past, that he has a well-founded fear that he will be similarly persecuted in the future, and that he is eligible for asylum and entitled to withholding of removal, [**3]  as well as protection under the Convention. We agree, and remand for the grant of relief under CAT, the award of withholding of removal, and for the exercise of the Attorney General's discretion with respect to the grant of asylum.

FACTUAL AND PROCEDURAL BACKGROUND

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404 F.3d 1207 *; 2005 U.S. App. LEXIS 6836 **

UKASHU NURU, aka Ukasha Nuru, Petitioner, v. ALBERTO R. GONZALES, 2 Attorney General, Respondent.

Prior History:  [**1]  On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-954-387.

CORE TERMS

torture, persecution, asylum, immigration judge, removal, military, desertion, political opinion, withholding, circumstances, well-founded, subjected, inflicted, harsh, immigration, sanctions, disproportionately, army, beat, pain, conditions, fighting, punished, motivation, credible, inhuman, cruel, military service, suffering, grounds

Administrative Law, Judicial Review, Reviewability, Reviewable Agency Action, Environmental Law, Administrative Proceedings & Litigation, Judicial Review, Governments, Courts, Judges, Factual Determinations, Immigration Law, Judicial Proceedings, Scope of Review, Civil Procedure, Appeals, Standards of Review, De Novo Review, Questions of Law, De Novo Standard of Review, Substantial Evidence, Asylum, Refugees & Related Relief, Convention Against Torture, International Law, Individuals & Sovereign States, Human Rights, Torture, General Overview, Evidence, Burdens of Proof, Restriction on Removal, Administrative Proceedings, Exceptions to Removal Restriction, Evidence, Burden of Respondent, Asylum, Inferences & Presumptions, Criminal Law & Procedure, Sentencing, Capital Punishment, Cruel & Unusual Punishment, Authority to Regulate, Treaty Interpretation, Sources of International Law, Asylum, Eligibility Requirements, Eligibility for Asylum, Appellate Briefs, Reviewability of Lower Court Decisions, Preservation for Review, Judicial Officers, Judges