                                     NOT FOR PUBLICATION

                               UNITED STATES COURT OF APPEALS                    FILED
                                     FOR THE NINTH CIRCUIT                       NOV 19 2009

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

 IBRAHIM IBSSA MOHAMMED,                                     Nos. 07-73940 and 08-71182

                Petitioner,                                  Agency No. A071-772-799

  v.
                                                             MEMORANDUM*
 ERIC HOLDER, Attorney General,

                Respondent.


                              On Petitions for Review of Orders of the
                                  Board of Immigration Appeals

                         Argued and Submitted on November 6, 2009
                                 San Francisco, California

Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, ** District

Judge.

       Petitioner Ibrahim Ibssa Mohammed, a citizen of Ethiopia, brings these

consolidated petitions for review of two orders of the Board of Immigration



       *
          This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
           **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Appeals (“BIA”). In the first order, the BIA adopted and affirmed the decision of

the Immigration Judge (“IJ”) concluding that Mohammed’s conviction for

“robbery” under Arizona Revised Statutes § 13-1902 constituted a “particularly

serious crime,” making Mohammed ineligible for asylum and withholding of

removal, and that Mohammed failed to meet his burden for protection under the

Convention Against Torture (“CAT”). Petitioner’s first petition to this court

challenged this decision of the BIA.

      Mohammed filed a motion to reopen, alleging, among other things, that he

was incompetent to proceed pro se, and as a result, that the proceedings before the

IJ lacked due process. He also claimed that evidence of his mental illness

undermined the IJ’s determination that he was convicted for a particularly serious

crime. The BIA denied the motion. Petitioner’s second petition to this court

challenged this denial.

      We deny the first petition for review. We grant in part the second petition

for review, reversing the denial of the motion to reopen and remanding for a

hearing with all of the now-available evidence relevant to the CAT claim.

First Petition for Review

      The court reviews for substantial evidence the factual findings underlying

the agency’s determination that an applicant is not eligible for protection under

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CAT. See, e.g., Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir. 2007). This

standard requires the court “to uphold the BIA’s determination if supported by

‘reasonable, substantial, and probative evidence on the record.’” Id. (citations

omitted). Even if the court might have reached a different conclusion from that

reached by the BIA, it “may not reverse unless [it] determine[s] that any reasonable

factfinder would have been compelled to reach that conclusion.” Lolong v.

Gonzalez, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc).

      Here, because the BIA “adopt[ed] and affirm[ed] the decision of the

Immigration Judge,” citing Matter of Burbano, 20 I. &. N. 872, 874 (BIA 1994),

and did not express any disagreement with any aspect of the IJ’s decision, the court

reviews the IJ’s decision. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.

2009). In addition, because the BIA expressly adopted the reasoning of the IJ and

also added some of its own reasoning, this court’s review encompasses both

decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005).

      An applicant seeking relief under CAT must “establish that it is more likely

than not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R § 1208.16(c)(2); see Nuru, 404 F.3d at 1216. He or she must

show that the treatment he or she will likely suffer rises to the level of “torture.”

Id. at 1217. The regulations define torture as “any act by which severe pain or

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suffering, whether physical or mental, is intentionally inflicted on a person . . . by

or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” Villegas v. Mukasey, 523 F.3d 984,

988 (9th Cir. 2008) (quoting 8 C.F.R. § 1208.18(a)(1)). “[T]o constitute torture, an

act must be specifically intended to inflict severe physical or mental pain or

suffering.” Id. (citing 8 C.F.R. § 1208.18(a)(5)).

      The record initially before the IJ and BIA does not compel a conclusion that

Mohammed met his burden for protection under CAT. See Singh-Kaur v. INS, 183

F.3d 1147, 1150 (9th Cir. 1999) (noting that a contrary result is not compelled

where there is “[t]he possibility of drawing two inconsistent conclusions from the

evidence”) (internal quotation marks and citation omitted). Because substantial

evidence supports the conclusions of the IJ and BIA as the record had thus far been

created, the BIA’s order is affirmed. Mohammed’s first petition for review is

denied.

Second Petition for Review

      The court reviews the BIA’s denial of a motion to reopen for abuse of

discretion, reversing only if the BIA’s decision is “arbitrary, irrational, or contrary

to law.” See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). The




                                           4
BIA’s determination of purely legal questions is reviewed de novo. See Alali-Amin

v. Mukasey, 523 F.3d 1039, 1041 (9th Cir. 2008).

      Mohammed’s claim that the BIA abused its discretion in denying reopening

with respect to the “particularly serious crime” determination is without merit. The

court lacks jurisdiction to review the BIA’s discretionary determination of whether

a crime is “particularly serious,” Delgado v. Mukasey, 563 F.3d 863, 871 (9th Cir.

2009), but can “determine whether the BIA applied the correct legal standard in

making its determination,” Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.

2006), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d

1147 (9th Cir. 2008) (en banc); see Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1276

(9th Cir. 2009). Here, the BIA explicitly referred to its prior decision, which

applied the correct legal standard. The BIA’s failure to reiterate its prior analysis

is not “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039

(9th Cir. 2002).

      As to Mohammed’s CAT claim, Mohammed presented additional evidence,

including revised declarations from his father, his brother, and an expert, Professor

Ali. The new evidence provides much stronger support for Mohammed’s CAT

claim than the evidence initially before the IJ and BIA. The revised declarations

indicate that Mohammed was a youth member of the Oromo Liberation Front

                                           5
(“OLF”), an opposition group to the ruling party of the Ethiopian government, and

that his father and brother are currently well known among Oromos in Ethiopia as

OLF supporters.

      The BIA did not determine whether Mohammed’s proceedings before the IJ

lacked due process, because it denied the motion to reopen on the ground that

Mohammed failed to show prejudice. In doing so, it misstated the legal standard

for prejudice, concluding: “[t]he respondent’s burden is a high one, to show prima

facie that torture is more likely than not. Under these circumstances, the

respondent has not done so and thus has not demonstrated that the result of his

proceedings would have been different in the absence of the deficiencies he

alleges.” The BIA appears to have concluded that because Mohammed had not

demonstrated prima facie eligibility for relief, it follows that he could not have

shown prejudice. Mohammed is not required to show that the outcome “would

have been different” to show prejudice. See Cano-Merida v. INS, 311 F.3d 960,

965 (9th Cir. 2002). The BIA’s conclusion is thus an abuse of discretion, because

it is “contrary to law.” Singh, 295 F.3d at 1039.

      Accordingly, we grant in part Mohammed’s second petition for review and

reverse the BIA’s denial of the motion to reopen with respect to the CAT claim.

The BIA is instructed to reopen proceedings to allow a hearing with all of the now-

                                          6
available evidence relevant to Mohammed’s CAT claim. The second petition for

review is denied with respect to Mohammed’s remaining claims.




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