                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

DANIEL NEGA HADERA,                   
                        Petitioner,       No. 05-70496
               v.
                                          Agency No.
                                          A28-419-736
ALBERTO R. GONZALES, Attorney
General,                                    OPINION
                     Respondent.
                                      
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                  Argued and Submitted
            June 5, 2007—Seattle, Washington

                    Filed July 18, 2007

     Before: Harry Pregerson, Warren J. Ferguson, and
              Sandra S. Ikuta, Circuit Judges.

               Opinion by Judge Ferguson




                           8711
                     HADERA v. GONZALES                    8713


                         COUNSEL

Signe Dortch, Gibbs Houston Pauw, Seattle, Washington, for
the petitioner.

Eric W. Marsteller, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington, D.C.,
for the respondent.


                          OPINION

FERGUSON, Circuit Judge:

   Daniel Nega Hadera (“Hadera”) petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) sum-
marily affirming an order of removal. Hadera argues that the
Immigration Judge (“IJ”) in his case erred in designating Ethi-
opia as his country of removal and in denying his applications
for protection under the Convention Against Torture (“CAT”)
and withholding of removal under 8 U.S.C. § 1231(b)(3)(A).

   We grant the petition and remand to the IJ for a redetermi-
nation of the country of removal under 8 U.S.C. § 1231(b)
(2)(E). We do not reach Hadera’s other claims.

               FACTUAL BACKGROUND

  Hadera was born in Bari, Italy in 1978 to Nega Hadera and
Ghidei Ghebreghiorgis, members of Ethiopia’s Tigray ethnic
group. Both of Hadera’s parents were born in Ethiopia,
though they met later in Italy, each having left Ethiopia in the
8714                 HADERA v. GONZALES
1970s. Nega Hadera’s father, the petitioner’s grandfather,
served as a priest to Emperor Haile Selassie and was promi-
nent throughout the Tigray province. After the Derg, a mili-
tary junta, wrested command of Ethiopia from Selassie in
1974, Mengistu Haile Mariam took control of the country and
targeted former Selassie supporters and members of the Ethio-
pian Democratic Union (“EDU”), including the Hadera fam-
ily. The Mengistu regime tortured Hadera’s uncles, Asfaha,
Fikre, and Mulu, because of their family ties to Selassie and
participation in the EDU. Nega was also a member of the
EDU and actively promoted the overthrow of the Mengistu
regime by distributing pamphlets to Ethiopian sailors he met
in his travels as a merchant marine. The Hadera family fled
Ethiopia, and Asfaha, Fikre, Mulu, and Nega were all granted
asylum in the United States. The Mengistu regime was over-
thrown in 1991, but the Hadera family believes Ethiopia
remains inhospitable to members of the EDU.

   From his birth until the age of nine, Hadera lived with his
mother in Italy while his father lived in the United States,
working to bring the rest of the family to this country. In
1988, Hadera and his mother left Italy to join his father, who
had been granted asylum in the United States. The family
lived in New Jersey for several months, then moved to Seat-
tle, where Hadera attended elementary school, middle school,
and high school. In 1989, Hadera became a legal permanent
resident. His mother is also a legal permanent resident and his
father is a U.S. citizen.

   At his July 2, 2003 hearing, Hadera testified that during his
senior year of high school, he was taking Malcolm Crawford,
a homeless man, out to dinner when the two were approached
by an undercover Seattle police officer asking for drugs. As
Hadera walked on, Crawford sold crack to the officer, then
handed the money to Hadera. Hadera was arrested, charged
with delivery of cocaine, and convicted under Wash. Rev.
Code § 69.50.401(a)(1)(i) (1997). In October 2000, the trial
judge sentenced him to forty-five months in prison, enhanced
                     HADERA v. GONZALES                    8715
because the drug sale had taken place in a school bus zone.
Hadera had no prior criminal record. Hadera served two and
a half years in prison, during which time he converted to Mor-
monism.

                PROCEDURAL HISTORY

   After Hadera’s release from prison in March 2003, the for-
mer Immigration and Naturalization Service took Hadera into
custody and served him with a Notice to Appear, alleging that
he was deportable as an aggravated felon under 8 U.S.C.
§ 1227(a)(2)(A)(iii) because he had been convicted of a drug
trafficking crime.

   On July 2, 2003, the IJ held a hearing at which Hadera
sought a waiver of inadmissability under 8 U.S.C. § 1159(c),
withholding of removal under § 1231(b)(3), and relief under
CAT. Hadera argued that he would suffer persecution if
removed to Ethiopia because of his status as a member of the
Church of Jesus Christ of Latter-day Saints and because of his
family’s political connections to the EDU. Hadera asserted
that he was stateless and declined to designate a country of
removal. He explained that he has never been to Ethiopia,
does not speak either Amharic or Tigrinya, and has no
remaining relatives in Ethiopia. The IJ found Hadera remov-
able as charged, denied his petitions for relief, and designated
Ethiopia as the country of removal. The BIA affirmed without
opinion.

                STANDARD OF REVIEW

   Because the BIA affirmed the IJ’s decision without opinion
under 8 C.F.R. § 1003.1(e)(4), we review the IJ’s ruling as the
final agency decision. Acosta v. Gonzales, 439 F.3d 550, 552
(9th Cir. 2006) (citing Tapia v. Gonzales, 430 F.3d 997, 999
(9th Cir. 2005)). To the extent that we have jurisdiction, we
review the IJ’s legal determinations de novo and findings of
fact for substantial evidence. Morales v. Gonzales, 478 F.3d
8716                 HADERA v. GONZALES
972, 977 (9th Cir. 2007). The IJ’s “findings of fact are conclu-
sive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                        DISCUSSION

   [1] After determining that a noncitizen is removable, an IJ
must assign a country of removal. The Immigration and Natu-
ralization Act (“INA”) establishes the following process for
determining the country to which the individual shall be
removed. 8 U.S.C. § 1231(b)(2). The noncitizen is entitled to
designate a country of removal, and the Attorney General
must remove him or her to that country, subject to a few
exceptions. § 1231(b)(2)(A), (B), (C). If the noncitizen
declines to designate a country, or if the Attorney General
finds one of the exceptions applicable, then the noncitizen
shall be removed “to a country of which the alien is a subject,
national or citizen” unless the country fails to inform the
Attorney General that it will accept the individual, or unless
it is not willing to accept him or her. § 1231(b)(2)(C), (D). If
the individual is not removed to his or her country of choice
or citizenship, he or she shall be removed to any of the fol-
lowing countries:

    (i) The country from which the alien was admitted to
    the United States.

    (ii) The country in which is located the foreign port
    from which the alien left for the United States or for
    a foreign territory contiguous to the United States.

    (iii) A country in which the alien resided before the
    alien entered the country from which the alien
    entered the United States.

    (iv) The country in which the alien was born.

    (v) The country that had sovereignty over the alien’s
    birthplace when the alien was born.
                     HADERA v. GONZALES                      8717
    (vi) The country in which the alien’s birthplace is
    located when the alien is ordered removed.

§ 1231(b)(2)(E)(i)-(vi). If removal to any of these countries is
“impracticable, inadvisable, or impossible,” the individual
shall be removed to “another country whose government will
accept the alien into that country.” § 1231(b)(2)(E)(vii).

  In Jama v. ICE, 543 U.S. 335 (2005), the Supreme Court
organized this statutory framework into a four-stage inquiry:

    (1) An alien shall be removed to the country of his
    [or her] choice, unless one of the conditions elimi-
    nating that command is satisfied; (2) otherwise [s]he
    shall be removed to the country of which [s]he is a
    citizen, unless one of the conditions eliminating that
    command is satisfied; (3) otherwise [s]he shall be
    removed to one of the countries with which [s]he has
    a lesser connection; or (4) if that is impracticable,
    inadvisable or impossible, [s]he shall be removed to
    another country whose government will accept the
    alien into that country.

Id. at 341 (internal citations, parenthetical information, and
punctuation omitted).

   In the present case, Hadera declined to designate a country
of removal, so Step 1 of the Jama inquiry does not apply. See
id. at 341.

   [2] The IJ failed to apply Step 2. Evidently believing that
Hadera’s failure to designate a country of removal entitled
him to pick one on Hadera’s behalf, the IJ stated, “Respon-
dent declines to designate a country of removal so I will des-
ignate Ethiopia for whatever it may be worth.” In order for the
IJ to have removed Hadera to Ethiopia under Step 2, however,
he would have had to find that Hadera was “a subject,
national, or citizen” of Ethiopia. 8 U.S.C. § 1231(b)(2)(D).
8718                     HADERA v. GONZALES
The IJ made precisely the opposite finding. He stated, “I agree
with respondent that it is not likely that Ethiopia would recog-
nize him as being a citizen thereof. It may well be, as respon-
dent argues, that he is stateless.”1 Given this conclusion, the
IJ had no basis for designating Ethiopia as the country of
removal under Step 2. See 8 U.S.C. § 1231(b)(2)(D).

   [3] The IJ should have continued on to Step 3 and desig-
nated “one of the countries with which [Hadera] has a lesser
connection.” Jama, 543 U.S. at 341; 8 U.S.C.
§ 1231(b)(2)(E)(i)-(vi). As the government admits, the IJ
could not have removed Hadera to Ethiopia under Step 3.
Hadera has never set foot in Ethiopia. Ethiopia is not the
country from which Hadera was admitted to the United States,
the country in which is located the foreign port from which
Hadera left for the United States, the country in which Hadera
resided before entering the United States, the country from
which Hadera entered the United States, the country in which
Hadera was born, the country that had sovereignty over Had-
era’s birthplace when he was born, nor the country in which
Hadera’s birthplace was located when he was ordered
removed. See § 1231(b)(2)(E)(i)-(vi). The only country that
would have met any of these descriptions is Italy.

   [4] Without having properly designated a country under
Step 3, the IJ could not have determined that removal to such
a country was “ ‘impracticable, inadvisable, or impossible,’ ”
and he therefore could not have progressed to Step 4. Jama,
543 U.S. at 341 (quoting 8 U.S.C. § 1231(b)(2)(E)(vii)).

  [5] Accordingly, the IJ erred in designating Ethiopia as the
country of removal.

  The government argues that there was factual support in the
  1
   Although Hadera was born in Italy, he is not an Italian citizen. Unlike
the United States, Italy does not automatically recognize as citizens all
those born within its borders.
                     HADERA v. GONZALES                    8719
record for the IJ to conclude Hadera was a citizen of Ethiopia
under Step 2. For instance, Hadera’s parents listed Ethiopia as
the country of his citizenship on a “statistical data” sheet it
submitted in 1989 to the former INS, as well as on his appli-
cation for legal permanent residency. The IJ considered these
documents, however, and explicitly concluded that they did
not undermine his finding that Ethiopia was unlikely to recog-
nize Hadera as a citizen. The IJ concluded, “Notwithstanding
these statements, I agree with respondent that it is not likely
that Ethiopia would recognize him as being a citizen thereof.”
The IJ made a factual finding that Hadera is likely not an
Ethiopian citizen, and that finding is conclusive, since a rea-
sonable adjudicator would not “be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B).

   The government argues that under Pelich v. INS, 329 F.3d
1057, 1061 (9th Cir. 2003), only the Ethiopian government
can determine whether or not Hadera is a citizen. In Pelich,
we noted that it was “eminently reasonable” for the INS to
determine that Pelich was a Polish citizen based on the facts
that “Pelich was born in Poland, lived there for over twenty
years, and reported on his refugee application that he was a
Polish national.” Id. Under § 1231(b)(2)(D), the Attorney
General must remove the noncitizen to a country of which he
or she is a citizen “unless the government of the country . . .
(i) does not inform the Attorney General . . . whether the gov-
ernment will accept the alien into the country; or (ii) is not
willing to accept the alien into the country.” 8 U.S.C.
§ 1231(b)(2)(D) (emphasis added). Notwithstanding the INS’s
reasonable determination that Pelich was a citizen of Poland,
Pelich sought “to compel the INS to accept his assertion that
he is ineligible for Polish citizenship,” while at the same time
actively obfuscating the government’s attempt to obtain infor-
mation as to whether Poland would accept him. Pelich, 329
F.3d at 1061. We rejected Pelich’s efforts to short circuit the
INS’s efforts to follow through with Poland, noting (consis-
tent with the statute), “it’s not his place, the INS’s or the
court’s to determine whether Poland would admit him as a cit-
8720                  HADERA v. GONZALES
izen.” Id. We concluded that the petitioner’s argument that he
is ineligible for Polish citizenship was “thus somewhat prema-
ture: Until he provides the proper information, we can only
speculate as to the merit of his claim.” Id.

   However, unlike the petitioner in Pelich, Hadera did noth-
ing to subvert the government’s determination of his actual
citizenship or to prevent the government from obtaining input
from Ethiopia as to whether it would accept him into the
country. In the present case, the IJ himself concluded that
Hadera was likely not an Ethiopian citizen, a finding that is
supported by substantial evidence. Given the record before
the IJ, it would not have been “eminently reasonable” for him
to conclude that Hadera was an Ethiopian citizen, as it was for
the IJ in Pelich to conclude that Pelich was a Polish citizen.
Cf. id.

   The government reads Pelich as holding that whenever a
petitioner’s country of citizenship is in question, the IJ must
stop at Step 2 and presume the petitioner’s citizenship without
making a factual finding on that issue. Aside from being
administratively unworkable, this reading has little support in
Pelich itself and is inconsistent with the approach of other cir-
cuits, which permit the IJ to proceed to Step 3 if she cannot
determine the petitioner’s citizenship at Step 2. See, e.g.,
Haile v. Gonzales, 421 F.3d 493, 496-97 (7th Cir. 2005)
(remanding because IJ “did not determine whether the peti-
tioners are still considered citizens by Ethiopia”); Rife v. Ash-
croft, 374 F.3d 606, 610 (8th Cir. 2004) (affirming, in
relevant part, IJ’s order of removal of petitioners to country
in which they last resided (Step 3) because they “declined to
designate a country of removal [Step 1] or citizenship, and
because the IJ was unable to determine with certainty the
country of which [they] [we]re natives, subjects or citizens
[Step 2]” (internal punctuation omitted)).

  [6] Accordingly, the IJ acted within his powers in determin-
ing that Ethiopia was unlikely to accept Hadera as a citizen,
                        HADERA v. GONZALES                      8721
though he erred in nevertheless designating Ethiopia as the
country of removal under Step 2. We grant Hadera’s petition
and remand for a redetermination of the country of removal
under Step 3, § 1231(b)(2)(E)(i)-(vi).

   Because we hold that Ethiopia was not the proper country
of removal, we do not reach the remaining issues, each of
which presumes Hadera’s removal to Ethiopia. We recognize,
however, that there are circumstances under which the IJ
might re-designate Ethiopia as the country of removal on
remand. Should the country designated under Step 3 reject
Hadera or should removal under Step 3 prove to be “impracti-
cable, inadvisable, or impossible,” 8 U.S.C. § 1231(b)(2)
(E)(vii), the IJ might re designate Ethiopia under Step 4.2
Under such circumstances, Hadera’s CAT and withholding of
removal claims would again be applicable and subject to judi-
cial review.

  The petition is GRANTED.




  2
   Of course, under Step 4, Ethiopia would have to agree in advance to
accept Hadera prior to such a designation. See 8 U.S.C. § 1231(b)(2)
(E)(vii); Jama, 543 U.S. at 341-42.
