Uladzimir Sliusar v. Matthew Whitaker

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 8 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ULADZIMIR SLIUSAR, No. 16-74019 Petitioner, Agency No. A098-534-453 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 19, 2018 San Francisco, California Before: BOGGS,** PAEZ, and OWENS, Circuit Judges. Petitioner Uladzimir Sliusar came to the United States from Belarus and requested asylum, withholding of removal, and Convention Against Torture (“CAT”) protection. He claimed that as a member of a pro-democracy student group, he was arrested and beaten for his activism. But, as the government * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. demonstrated at a subsequent hearing, Sliusar plagiarized four paragraphs of his application from other Belarusians’ successful submissions.1 An immigration judge found that Sliusar’s asylum application was frivolous, denied his requests for relief, and ordered him removed. She apparently did so without considering documentary evidence—including two letters from fellow activists and hospital records—that corroborated much of his story.2 After years of unsuccessful motions and appeals, Sliusar hired new attorneys and filed a motion to reopen his case with the Board of Immigration Appeals (“BIA”). He alleged that his previous attorneys were ineffective because they had failed to raise our decision in Al-Harbi v. INS, 242 F.3d 882 (9th Cir. 2001). According to Sliusar, Al-Harbi required the immigration judge to consider his documentary evidence before ruling on his requests for withholding of removal and CAT protection. The BIA denied his motion to reopen, and he petitioned this court for review. We grant Sliusar’s petition, vacate the BIA’s decision, and remand to the BIA to exercise its discretionary authority under the correct legal framework. 1 Years later, Sliusar also admitted to lying about who helped him prepare his application and to fabricating a beating by a KGB agent that he claimed to have suffered in the rector’s office at his university. 2 The immigration judge listed these documents, which were admitted as exhibits at the hearing, in a “Summary of the Evidence” in her written decision, but she did not refer to them in her “Analysis and Findings.” 2 16-74019 When the BIA denies sua sponte a motion to reopen, we have jurisdiction “for the limited purpose of reviewing the reasoning behind the decision[ ] for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We “review purely legal questions de novo.” Id. at 581. The BIA based its decision on two legal errors. First, it held that Al-Harbi does not apply to Sliusar’s case, so his prior attorneys were not ineffective for failing to raise it. We disagree. In Al-Harbi, we held that an immigration judge must decide whether ...

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