                                                                            FILED
                            NOT FOR PUBLICATION                             APR 08 2015

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



                            FOR THE NINTH CIRCUIT


IMRAN SHAMS,                                     No. 11-71386

              Petitioner,                        Agency No. A029-807-991

  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 December 12, 2014
                               Pasadena, California

Before: PREGERSON, WARDLAW, and BERZON, Circuit Judges.

       Imran Shams (“Shams”), a native and citizen of Pakistan, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order affirming the

Immigration Judge’s (“IJ”) denial of withholding of removal and protection under

the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8

U.S.C. § 1252. Because the IJ and the BIA erred by failing to properly consider all


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of the evidence in the record, we grant the petition and remand for further

proceedings.

      1. Substantial evidence does not support the agency’s denial of withholding

of removal for failure to demonstrate an objectively reasonable fear of future

persecution. In reaching its conclusion, the agency ignored evidence from Shams’s

expert witness, Professor Shaul Gabbay, that Shams was highly likely to be in

danger if returned to Pakistan. Professor Gabbay testified that it was very likely

that Shams, who has lived in the United States for an extended period of time,

would be suspected of being an American spy. He reported that the “most extreme

punishment is meted out” to people considered to be spies. Moreover, Professor

Gabbay testified that because Shams is Pakistani, suspicion against him will be

much greater than against most Americans. Professor Gabbay noted that Pakistan

is a tribal, conservative country where a person like Shams cannot “just blend and

hide.” Rather, everyone will know that he has been living in the United States for

nearly twenty-five years, making him a target.

      The IJ acknowledged that Islamist militant groups execute people they

accuse of being spies. The IJ noted Professor Gabbay’s testimony that Shams was

especially at risk of persecution because he may be suspected of being an

American spy. Yet, the IJ concluded, without additional comment, that there was


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“no evidence to suggest that natives of Pakistan who have lived in the United

States for an extended period of time face any threat to their life or freedom.” The

IJ provided no explanation for disregarding Professor Gabbay’s uncontroverted

testimony, which was supported by the country conditions report. The agency

erred by failing to provide a reason for disregarding the potentially dispositive

testimony of an expert witness. See Cole v. Holder, 659 F.3d 762, 772 (9th Cir.

2011).

      Furthermore, the BIA erroneously determined that the IJ concluded that

Professor Gabbay’s testimony was insufficient to demonstrate eligibility for

withholding of removal “given that the country conditions materials in the record

do not adequately address how Pakistanis who return after living in the United

States . . . for an extended period of time are treated.” The IJ did not conclude that

Professor Gabbay’s testimony was insufficient; rather, the IJ acknowledged

Professor Gabbay’s testimony, and then ignored it without explanation.

      Even assuming that the IJ concluded that Professor Gabbay’s testimony was

insufficient, that finding is not supported by substantial evidence. The country

conditions evidence suggests that militant groups target people they accuse of

being American spies. Professor Gabbay testified that Shams will likely be

suspected of being an American spy because he has lived in the United States for


                                           3
nearly twenty-five years. The agency failed to explain how the country conditions

report contradicted Professor Gabbay’s testimony. Although the agency is not

required to take Professor Gabbay’s testimony as true, it must reasonably consider

his highly probative and potentially dispositive testimony.1 See id. Because it did

not, we grant the petition for review on Shams’s withholding of removal claim, and

remand to the BIA to properly consider Professor Gabbay’s uncontradicted, expert

testimony.

      2. Similarly, because the agency failed to consider “all evidence relevant to

the possibility of future torture,” 8 C.F.R. § 1208.16(c)(3), we grant Shams’s

petition for review on his CAT claim, and remand to the agency for further

proceedings. The BIA affirmed the denial of CAT relief “for the reasons stated by

the immigration judge.” The IJ, however, erroneously denied Shams’s CAT claim

because the claim depended on the same evidence as Shams’s withholding claim.

      As with its withholding of removal analysis, the agency failed to provide any

reason for rejecting Professor Gabbay’s testimony in relation to Shams’s CAT

claim. The agency was required to “state[ ] reasons in the record why the [expert]

      1
         The government contends that Shams’s argument is a dispute over the
weight given to the evidence. Under substantial evidence review, we may not
reweigh evidence. Singh v. I.N.S., 134 F.3d 962, 969 n.14 (9th Cir. 1998). But
Shams does not argue that this court should reweigh the evidence; rather, he argues
that the agency failed to weigh the evidence at all, and we agree.

                                          4
testimony was insufficient to establish the probability of torture necessary to grant

CAT relief.” Cole, 659 F.3d at 772 (internal quotation marks omitted). Because

the agency “failed to give reasoned consideration to the potentially dispositive

testimony” of expert witness Professor Gabbay, we must grant the petition for

review, and remand to the agency to reconsider Shams’s CAT claim with

appropriate consideration of the expert testimony. Id. at 773.

      GRANTED and REMANDED.




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