                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 08 2011

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


IMAN KHALIL SURADI, AKA Iman                     No. 10-70660
Suradj,
                                                 Agency No. A089-859-189
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted April 15, 2011
                              Pasadena, California

Before: KOZINSKI, Chief Judge, D.W. NELSON and BYBEE, Circuit Judges.

       Iman Khalil Suradi (“Suradi”), a native and citizen of Jordan, petitions for

review of the Board of Immigration Appeals’ (BIA) rejection of her application for

deferral of removal under the Convention Against Torture (CAT). We grant the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition and remand to the BIA for further proceedings consistent with this

disposition.

      To establish eligibility for deferral of removal under CAT, Suradi must

demonstrate “only a chance greater than fifty percent that [she] will be tortured if

removed” to Jordan. Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004)

(citations omitted); see 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). The torture may be

“inflicted by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such activity.” Id.

§ 1208.18(a)(7); see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th

Cir. 2006) (“It is enough that public officials could have inferred the alleged

torture was taking place, remained willfully blind to it, or simply stood by because

of their inability or unwillingness to oppose it.”).

      When, as here, the BIA does not express disagreement with any portion of

the IJ’s decision, cites Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994),

and adds its own review of the evidence and the law, this court reviews both the

BIA’s and the IJ’s decisions. See Joseph v. Holder, 600 F.3d 1235, 1239-40 (9th


                                           2
Cir. 2010). We review the agency’s findings of fact in connection with a denial of

CAT relief for substantial evidence. Morales v. Gonzales, 478 F.3d 972, 983 (9th

Cir. 2007). “The substantial evidence standard requires us to uphold the BIA’s

determination if supported by reasonable, substantial, and probative evidence on

the record.” Id. (internal quotation marks and citation omitted). To overturn the

agency’s decision, Suradi must show that “the evidence not only supports . . . but

compels” reversal. Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000)

(citation omitted).

      In evaluating the propriety of relief under CAT, a petitioner’s testimony

alone, if credible, “may be sufficient to sustain the burden of proof without

corroboration.” 8 C.F.R. § 1208.16(c)(2). Because the IJ did not make an adverse

credibility finding in Suradi’s removal hearings, the BIA was required to accept

Suradi’s testimony, and all reasonable inferences to be drawn from it, as true.

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006). In addition,

“[t]he regulations . . . explicitly require the IJ to consider ‘all evidence relevant to

the possibility of future torture.’” Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6

(9th Cir. 2010) (quoting 8 C.F.R. § 208.16(c)(3)) (rejecting the government’s

contention that the Board is not required to cite and refute every piece of evidence

on appeal).


                                            3
      A.     Likelihood of Torture

      The record compels the conclusion that Suradi will more likely than not be

killed in an honor killing if she is removed to Jordan. Suradi testified that it is

“something definite” that she will be killed due to the shame of her extramarital

affairs and drug conviction. Under § 1208.16(c)(2), this testimony alone, even if

not corroborated, may be sufficient to sustain her burden. However, her brother

corroborated her testimony, stating, “It’s not I think. I know that she will [be

killed].” In addition, Suradi provided several articles and country reports

describing the problem of honor killings in Jordan, a fact which the IJ

acknowledged.

      Substantial evidence does not support the IJ’s finding that Suradi has not

reported any threats from her family or husband. This finding is directly contrary

to Suradi’s credible testimony; her declaration in support of her asylum application

asserts that her husband has explicitly threatened to kill her to “cleanse the

dishonor” caused by her extramarital affairs in the U.S. Suradi also declares that

her family has “threatened that I must end [an extramarital] relationship otherwise I

would pay the price.”

      Because the IJ and BIA were required to accept Suradi’s testimony as true,

Ornelas-Chavez, 458 F.3d at 1056, and the testimony of both Suradi and her


                                           4
brother indicate it is nearly certain that Suradi will be killed, the record compels

the conclusion that it is more likely than not that Suradi will be subjected to an

honor killing by her family or estranged husband. There is no evidence in the

record rebutting her credible testimony.

      B.     Government Acquiescence

      The IJ’s finding that the Jordanian government does not acquiesce in honor

killings is not supported by substantial evidence. Purporting to rely on the State

Department’s human rights report on Jordan, the IJ found that there were only

sixteen honor killings in Jordan in 2008, and that these killings were prosecuted by

the government. Therefore, the IJ concluded that Suradi had failed to meet her

burden to show that the government would more likely than not be unable or

unwilling to prevent the harm. However, the IJ’s finding was based on a clear

misreading of the State Department report. The report simply noted that there were

only sixteen prosecutions of honor killings in 2008, and that many more instances

of honor killings may have gone unprosecuted or unreported. The Human Rights

Watch report in the record agreed, stating, “Undoubtedly there are more ‘honor’

killings than the average of fifteen per year that the government has recorded since

1999. . . . The Jordan Times . . . has consistently reported higher numbers than the

government . . . .”


                                           5
      Moreover, even if the IJ’s statement accurately reflected the record evidence,

he failed to explain how the relative rarity of honor killings is relevant to the

question presented here. Namely, assuming that only sixteen women are murdered

each year, this would be cold comfort if Suradi were among that unfortunate cohort

and the government was unable or unwilling to prevent those murders, as she

alleges. Indeed, even if the government had prosecuted all honor killings,

whatever their number, this finding is not probative to the question of whether the

Jordanian government acts to prevent honor killings. Indeed, according to the

State Department, the only action the government takes before these murders take

place is to “regularly place[] potential victims of honor crimes in involuntary

protective custody in . . . a detention facility where some have remained for more

than 20 years.” Thus, the record suggests that the government’s purported

“protection” amounts to forced imprisonment. Worse, according to Human Rights

Watch, an imprisoned woman may only be released to a male family member.

Because a family member is usually the perpetrator of an honor killing, a male

relative may pick a woman up from prison only to kill her.

      The IJ also fails to address Suradi’s credible testimony regarding

government acquiescence. Suradi presented evidence that Jordanian officials are

willfully blind to—if not supportive of—honor killings. In addition to her own


                                           6
declaration that the “Jordanian government cannot and will not protect me from

death,” and her testimony that in the past the mayor and the police would not

intervene when her husband abused her, Suradi’s brother Ismail stated that the

police will not be able to protect Suradi from her family if she is returned to

Jordan. He explained, “There’s no such a thing as police protection in Jordan. I

mean it just doesn’t exist.”

      Other evidence in the record supports their statements. A Human Rights

Watch report states that “[p]olice rarely investigate ‘honor’ killings, seldom take

any initiative to deter these crimes, and typically treat the killers as vindicated

men.” Provisions of the Jordanian criminal code (Articles 98 and 340) provide for

drastically reduced sentences for perpetrators of honor killings, and the State

Department report itself states that the typical sentence was less than six months,

Jordan’s government has blocked efforts at reform. A news report indicates that

Jordan’s parliament has refused to repeal these leniency provisions on grounds that

tougher penalties for honor killings would lead to more adultery.

      Since the IJ’s and BIA’s decision rested on a misreading of the State

Department’s report, however, they did not address and weigh the evidence in the

record detailed above, including Suradi’s credible testimony. Instead of making

factual determinations in the first instance, therefore, we remand to the BIA to


                                           7
consider fully the reports cited above and the record as a whole. See She v. Holder,

629 F.3d 958, 963-64 (9th Cir. 2010) (remand to the BIA for further factfinding is

appropriate where the BIA’s fails to provide a proper explanation for its findings).



      Petition GRANTED and REMANDED.




                                          8
                                                                                FILED
Suradi v. Holder, No. 10-70660.                                                  JUN 08 2011

                                                                            MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

Chief Judge KOZINSKI, dissenting:


      1. The majority first errs in finding the testimony of Suradi and her brother

compels the conclusion that she will be subjected to an honor killing if returned to

Jordan. See maj. at 4. Their testimony, if believed, proves only that they have a

genuine subjective belief that Suradi will be killed; it does not prove that their

prediction is objectively reasonable or factually accurate. Cf. Zhao v. Mukasey,

540 F.3d 1027, 1029 (9th Cir. 2008). Although this evidence might have

supported a finding that Suradi will be tortured, “[t]o reverse the BIA . . . we must

find that the evidence not only supports that conclusion, but compels it.” INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). It does not.

      The majority compounds its error by mischaracterizing the IJ’s finding that

Suradi has not reported any threats. See maj. at 4. The IJ noted that, “in the three

years since her conviction, [Suradi] has not reported that she received any threats

from fellow narcotics traffickers, or from her family members, or from her

exhusband indicating that they had intentions to harm her if she returned.” [AR

51] This finding was clearly a rejection of her claim that she would be tortured

based on her narcotics conviction, not of her claim that she would be subjected to

an honor killing based on her extramarital affairs, which is addressed separately in
                                                                                 page 2
the following paragraph. Compare IJ Decision at 4 (rejecting claim “with respect

to the fellow narcotics traffickers”), with id. at 5 (rejecting claim “[w]ith respect to

the honor killings”). Thus, this finding is in no way “contrary to Suradi’s credible

testimony . . . that her husband has explicitly threatened to kill her to ‘cleanse the

dishonor’ caused by her extramarital affairs.” Maj. at 4 (emphasis added).


      2. The majority next errs in rejecting the IJ’s determination that the

Jordanian government does not acquiesce in honor killings. Suradi was required to

show that the torture would be “inflicted by or at the instigation of or with the

consent or acquiescence of a public official.” Afriyie v. Holder, 613 F.3d 924, 937

(9th Cir. 2010) (quoting 8 C.F.R. § 208.18(a)(1)) (internal quotation mark

omitted). The record here shows that, far from being complicit in the torture, the

Jordanian government took an active stance against honor killings by outlawing the

practice, putting potential victims in protective custody and prosecuting known

offenders. The majority’s criticism of the IJ’s conclusion is wholly unfounded.

      The majority’s assertion that “the IJ’s finding was based on a misreading of

the State Department report” is plain wrong. Maj. at 5. The report advises that

“authorities prosecuted 16 reported instances of honor crimes that resulted in death

of the victim, although activists reported that numerous additional unreported cases
                                                                               page 3
likely occurred.” [AR 261] The State Department report clearly does not adopt

these estimates of “likely” additional honor killings as fact. The report adopts 16

as the figure of known honor killings and the IJ was entitled to rely on that figure.

The majority’s contrary suggestion borders on the frivolous. See Zehatye v.

Gonzales, 453 F.3d 1182, 1189 (9th Cir. 2006).

      Even assuming there were more killings than prosecutions, this hardly

compels a finding of government acquiescence. In any system of justice, there are

necessarily some crimes that go unsolved, and some perpetrators who escape

punishment. In the United States, for example, nearly 30% of non-negligent

homicides went unresolved in 2009, yet no one seriously contends that the U.S.

Government acquiesces in murder. See Federal Bureau of Investigation, Crime in

the United States: Offenses Cleared,

http://www2.fbi.gov/ucr/cius2009/offenses/clearances/index.html (last visited May

29, 2011). And when we speak of the number of homicides committed, we rely on

the number of crimes reported to the police, even though we know that many

crimes go unreported and undetected. As the majority must be aware, honor

killings are very difficult to prosecute because there are frequently no witnesses

willing to talk to the police, and family members conspire to conceal the crime.

What the State Department report does not say is that there are any prosecutable
                                                                               page 4
crimes that the Jordanian government left un-prosecuted.

      Nor do “drastically reduced sentences for perpetrators of honor killings”

reflect government approval. Maj. at 7. In our own country, many people consider

a husband who explodes into a murderous frenzy upon catching his wife in bed

with another man as less culpable than a cold, calculating killer. See Rowland v.

State, 35 So. 826, 827 (Miss. 1904). In such situations, these accused murderers

are entitled to claim provocation and try to earn the sympathy of the jury. Id. If

successful, the verdict returned may be voluntary manslaughter rather than murder,

and sentences are accordingly “drastically reduced.” The common law

embodiment of our collective sentiment that some murders are more forgivable

than others doesn’t mean that the government acquiesces in killing homewreckers.

      And, of course, whether the Jordanian government does anything to

“prevent” honor killings has absolutely no bearing on whether it affirmatively

acquiesces in them. Maj. at 6. The majority’s contrary assertion inverts the

traditional burden of proof by requiring the U.S. Attorney General to prove that the

Jordanian government will succeed in protecting Suradi, rather than requiring

Suradi to prove government acquiescence. Contra Reyes-Reyes v. Ashcroft, 384

F.3d 782, 787 (9th Cir. 2004).

      The majority’s decision boils down to a concern that the Jordanian
                                                                                   page 5
government isn’t doing enough to protect women in Suradi’s situation. But it’s not

our job to sit in judgment of the domestic policy of a foreign nation. Instead, we

must faithfully apply the standard articulated in the Convention Against Torture

and ask whether the government has acquiesced in these crimes. See 8 C.F.R.

§ 208.18(a)(1). Here, the IJ could reasonably find that it has not.


                              *             *              *

      The majority scours the IJ and BIA’s decisions with a fine-tooth comb to

find any misstep on which to base its relief, but this is not our role as an appellate

court reviewing an agency’s decision. See Aruta v. INS, 80 F.3d 1389, 1393 (9th

Cir. 1996). Because I do not believe the record compels the conclusion that it is

more likely than not that Suradi will be tortured, or that, if she is tortured, it will be

at the behest of the government, I dissent.
