                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUN 13 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
YASAR SAEED,                                     No. 13-71399

              Petitioner,                        Agency No. A038-082-206

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                        Argued and Submitted May 12, 2016
                             San Francisco, California


Before: McKEOWN, SACK**, and FRIEDLAND, Circuit Judges.

      Yasar Saeed petitions for review of the Board of Immigration Appeals’

(BIA) opinion denying Saeed’s application for cancellation of removal. Saeed

does not dispute that he is removable, but argues that the BIA failed to follow its


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
own precedent by not engaging in an individualized analysis of Saeed’s contacts

with law enforcement and that it infringed Saeed’s free speech rights by

considering jail-cell stories about bomb threats and terrorist associates as an

adverse discretionary consideration. We have jurisdiction to review the BIA’s

decision pursuant to 8 U.S.C. § 1252(a),1 and we grant Saeed’s petition, vacate the

decision, and remand for clarification.

      The BIA’s analysis of Saeed’s numerous contacts with law enforcement was

sufficient to comply with the BIA’s and this court’s precedents. See Paredes-

Urrestarazu v. INS, 36 F.3d 801, 810 (9th Cir. 1994); Matter of C-V-T-, 22 I. & N.

Dec. 7 (BIA 1998); Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995). The BIA

need not conduct an individualized assessment of each contact on which it relies; it

is sufficient that the BIA considered the nature of the contacts in the aggregate and

determined whether they can be considered “adverse factors evidencing the alien’s

undesirability as a permanent resident.” Matter of C-V-T-, 22 I. & N. Dec. 7, 11

(BIA 1998) (quoting Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978)). As

part of this analysis, Matter of Thomas requires the BIA to consider the “nature of


      1
         Saeed also argues that the BIA improperly disregarded the Immigration
Judge’s (IJ) fact finding by concluding that Saeed intended to follow through on
the jail-cell conversations. See 8 C.F.R. § 1003.1(d)(3)(i)-(ii). This argument fails
because the BIA in fact accepted the IJ’s finding that Saeed’s jail-cell
conversations were “merely part of a fabricated story.”
                                           2
[contacts with law enforcement]” and counsels that “the stage to which those

proceedings have progressed should be taken into account and weighed

accordingly.” 21 I. & N. Dec. 20, 24 (BIA 1995). There is no indication here that

the BIA failed to conduct this analysis. The BIA separated its analysis of Saeed’s

arrest record from its analysis of his convictions, and, in fact, clarified that two of

the incidents recognized by the IJ as convictions were of lesser weight because

they were in fact only arrests.

      We do not reach the merits of Saeed’s argument that the BIA violated the

First Amendment by considering his jail-cell conversations regarding terrorist

associates and an alleged bomb threat. The BIA’s opinion does not clearly indicate

whether this speech was actually considered in reaching its determination, and we

are therefore forced to vacate the judgment and remand to the BIA to clarify

whether and to what extent Saeed’s speech was a basis for denying cancellation of

removal.

      Under familiar administrative law principles, we “may affirm the [BIA] only

on grounds set forth in the opinion under review.” Recinos De Leon v. Gonzales,

400 F.3d 1185, 1189 (9th Cir. 2005) (citing SEC v. Chenery Corp. (Chenery I),

318 U.S. 80, 87 (1943)); see also Altamirano v. Gonzales, 427 F.3d 586, 595 (9th

Cir. 2004) (“We ‘may not accept appellate counsel’s post hoc rationalizations for


                                            3
agency action; Chenery requires that an agency’s discretionary order be upheld, if

at all, on the same basis articulated in the order by the agency itself . . . .’” (quoting

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962))).

“‘[A]n important corollary’ to that rule is that the basis for an agency

determination ‘must be set forth with such clarity as to be understandable. It will

not do for a court to be compelled to guess at the theory underlying the agency’s

action.’” Recinos De Leon, 400 F.3d at 1189 (alteration in original) (quoting SEC

v. Chenery Corp. (Chenery II), 332 U.S. 194, 196-97 (1947)).

       Here, it is not clear from the BIA’s opinion whether the BIA intended to

offer Saeed’s alleged terroristic speech as an alternative grounds for denying

cancellation of removal, or as an integral part of the discretionary analysis

prescribed by Matter of C-V-T-. The BIA appeared to rely on Saeed’s “extensive

criminal history,” and noted Saeed’s speech separately. At oral argument, the

government argued that the court should read the word “[f]urthermore” as an

indication that the BIA intended its discussion of Saeed’s speech as an alternative

holding. Whether the BIA so intended to offer alternative bases for its action, “we

cannot, with any confidence, discern the grounds for the agency’s action,” Recinos

De Leon, 400 F.3d at 1193, and we therefore cannot review the BIA’s decision




                                             4
without clarification. On remand, the BIA should clarify whether it viewed

Saeed’s speech as part of its holding or as an alternative holding.

      PETITION GRANTED; DECISION VACATED AND REMANDED.




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