                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 11 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



PARWIN RAHMATI; et al.,                          No. 05-73868

             Petitioners,                        Agency Nos. A074-184-114
                                                            A075-521-621
  v.                                                        A075-521-622

ERIC H. HOLDER Jr., Attorney General,
                                                 MEMORANDUM *
             Respondent.



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

                            Submitted February 9, 2010**
                               Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, *** District
Judge.

       Parwin Rahmati, and Mohammad Rabi Rahmati, natives and citizens of

Afghanistan, and their daughter Mishal Rahmati, native and citizen of Germany,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
           This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
       ***
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
petition for review of the Board of Immigration Appeals' ('BIA') summary

affirmance without opinion of the Immigration Judge's ('IJ') order denying

asylum, withholding of removal, and relief under the Convention Against Torture

('CAT'). We grant the petition in part and deny it in part. Because the parties are

familiar with the factual and procedural history of this case, we need not recount it

here.

                                            I

        Substantial evidence supports the agency's conclusion that the petitioners

had firmly resettled in Germany and are therefore not eligible for asylum. 8 U.S.C.

y 1158(b)(2)(A)(vi). Pursuant to regulation, '[a]n alien is considered to be firmly

resettled if, prior to arrival in the United States, he or she entered into another

country with, or while in that country received, an offer of permanent resident

status, citizenship, or some other type of permanent resettlement.' 8 C.F.R. y

1208.15.

        Petitioner conceded she could have received lawful permanent resident

status in Germany through her husband if she had merely applied. The availability

of permanent resident status in another country is sufficient to constitute an offer

under the applicable regulations. Maharaj v. Gonzales, 450 F.3d 961, 977 (9th Cir.

2006) (en banc). That petitioners did not feel safe in Germany is not relevant to


                                            2
the calculation, given that they did not apply for asylum from Germany, only from

Afghanistan. In addition, the later cancellation of petitioner's status by Germany

after she allowed her travel documents to expire by overstaying her time in the

United States does not undermine such a finding. Id. at 969. Therefore, we must

deny the petition for review of the agency's denial of asylum.

                                         II

      Firm resettlement in another country does not preclude an application for

withholding of removal. See Siong v. INS, 376 F.3d 1030, 1041 (9th Cir. 2004).

The IJ rejected the application for withholding, but provided no meaningful

analysis supporting his conclusion. '[T]he BIA abuses its discretion when it fails

to provide a reasoned explanation for its actions.' Movsisian v. Ashcroft, 395 F.3d

1095, 1098 (9th Cir. 2005). 'Immigration judges, although given significant

discretion, cannot reach their decisions capriciously and must indicate how they

weighed factors involved and how they arrived at their conclusion.' Sagaydaµ v.

Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (internal quotation marµs and

alternation omitted). An IJ must address the actual arguments made by an

applicant. Id.

      Further, if the BIA or IJ relies on a State Department Country Reports to

deny an application, the analysis must include an individualized determination of


                                          3
how the changed conditions described in the report will affect petitioner's specific

situation. Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir. 2005).

       Because the IJ's decision lacµs a reasoned explanation of the withholding

decision and fails to acµnowledge the actual arguments made by the petitioner, we

must grant the petition for review on the withholding claim, and remand for further

proceedings consistent with this decision.

                                          III

        Substantial evidence supports the agency's decision on Petitioners also

moved for relief under the CAT. In order to be eligible for withholding of removal

under the CAT, the applicant has the burden of establishing that if removed to the

proposed country of removal 'he is more liµely than not to suffer intentionally-

inflicted cruel and inhuman treatment.' Nuru v. Gonzales, 404 F.3d 1207, 1221

(9th Cir. 2005). An applicant must demonstrate a chance greater than fifty percent

that she will be tortured in removed. Id. Substantial evidence in the record

supports the IJ's conclusion that the petitioners had not satisfied their burden of

proof. Although the record contains evidence of violence against women, the

record does not compel the conclusion that petitioner would liµely be subject to

torture by a public official.




                                             4
                                          IV

      Substantial evidence supports the agency's conclusion that petitioners were

not entitled to relief on humanitarian grounds. The BIA may grant humanitarian

asylum to a victim of past persecution, even where the government has rebutted the

applicants's fear of future persecution, if the applicant establishes one of two

things. First, the alien can show 'compelling reasons for being unwilling to or

unable to return to the country arising out of the severity of the past persecution.'

8 C.F.R. y 1208.13(b)(1)(iii)(A). Or, under the second prong of the humanitarian

asylum analysis, the alien can show 'a reasonable possibility that he or she may

suffer other serious harm upon removal to that country.' 8 C.F.R. y

1208.13(b)(1)(iii)(B).

      Petitioners did not establish past persecution and substantial evidence

supports the agency's conclusion that the petitioner did not establish a reasonable

possibility of suffering serious harm upon removal to that country.




    PETITION GRANTED IN PART; DENIED IN PART; REMANDED.




                                           5
                                                                          FILED
Rahmati v. Holder, 05-73868                                                  FEB 11 2010

                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S . CO U RT OF AP PE A LS




SILVERMAN, Circuit Judge, dissenting:




       I agree with Parts I and III of the Memorandum, but respectfully dissent

from Part II. In my opinion, the immigration judge adequately explained why

petitioner was not entitled to withholding of removal: She suffered no past

persecution (as the majority acµnowledges), and her claimed fear of future

persecution was not reasonable now that the Taliban were no longer in control.

Because the evidentiary record supports the IJ's reasoning and conclusion, I would

deny the petition in full.
