                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           SEP 17 2013

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

KHALIL ABDULAZIZ MOHAMAD AL                      No. 09-70089
TAREB,
                                                 Agency No. A079-656-259
              Petitioner,

  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 August 16, 2013
                            San Francisco, California


Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.


       Khalil Abdulaziz Mohamad-Al-Tareb (“Al-Tareb”), a native and citizen of

Yemen, petitions for review of a decision of the Board of Immigration Appeals

affirming an immigration judge’s denial of his applications for asylum,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
withholding of removal, and protection under the Convention Against Torture

(“CAT”). Al-Tareb asserted past persecution and a fear of future persecution as

well as a claim for humanitarian asylum relief. We remand.

      This court’s jurisdiction is governed by 8 U.S.C.A. § 1252. This court

reviews the relevant legal conclusions de novo, Hamazaspyan v. Holder, 590 F.3d

744, 747 (9th Cir. 2009), and the IJ’s factual findings under the substantial

evidence standard, Lopez-Rodriquez v. Mukasey, 536 F.3d 1012, 1015 (9th Cir.

2008).

      We conclude that the BIA properly rejected Al-Tareb’s CAT claim.

However, in denying relief the IJ did not afford a presumption of future fear of

persecution to Al-Tareb, despite having assumed past persecution. This constituted

error and requires a remand.

      We had previously remanded this matter to the Board for a determination as

to whether humanitarian asylum should be granted to Al-Tareb. Although the

issue of humanitarian asylum was not before the IJ at the initial hearing, the Board

decided the question on the record before the IJ. The factual findings relevant to

Al-Tareb’s humanitarian asylum claim were thus made in the first instance by the

Board. Because we are remanding to the IJ to address the future persecution issue,

a remand is also appropriate on this issue.


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We REMAND for further proceedings consistent with this disposition.




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