Bodagh v. Gonzales

MEMORANDUM ** Rafid Bodagh, a native and citizen of Iraq, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252 . Where, as here, the BIA reviewed the IJ’s decision and specifically incorporated portions of it as its own, we review the incorporated parts of the IJ’s decision as the BIA’s. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). We review for substantial evidence, see INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992), and we grant the petition for review in part and remand, and deny in part. The IJ was unclear about whether Bo-dagh had established past persecution, whether a rebuttable presumption of a well-founded fear was applied, and who had the burden of proof to show changed country conditions. Thus, we cannot conduct a proper review of this case, and we grant and remand to the BIA for clarification as to Bodagh’s asylum and withholding of removal claims. See Recinos De Leon v. Gonzales, 400 F.3d 1185, 1192, 1194 (9th Cir.2005). However, substantial evidence supports the denial of CAT relief because Bodagh did not establish that it is more likely than not that he will be tortured if returned to Iraq. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003). Accordingly, we deny the petition as to the CAT claim. PETITION FOR REVIEW GRANTED in part and REMANDED, and DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.