Opinion
NOT FOR PUBLICATION
Argued and Submitted September 15, 2006 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A96-148-678
Before: HAWKINS and BERZON, Circuit Judges, and SILVER, District Judge.
The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation.
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.
Christopher Kiankok Yeoh (§Yeoh§), a native and citizen of Singapore, petitions for review of an order of the Board of Immigration Appeals (§BIA§) summarily affirming the Immigration Judge§s (§IJ§s§) decision to deny his application for asylum, as well as his requests for withholding of removal and Convention Against Torture (§CAT§) relief.
Because counsel conceded the issue of past persecution at argument, we focus on Yeoh§s argument that the IJ failed to fully consider all the evidence presented on the issue of future persecution. See Tukhowinich v. INS, 64 F.3d 460, 463-64 (9th Cir. 1995) (abuse of discretion to fail to consider §all pertinent facts§); see also Guo v. Gonzales, -- F.3d --, 2006 WL 2588089 (2d Cir. Sept. 6, 2006) (remand necessary when, §in light of [the IJ§s] failure§ to consider documents presented by the asylum applicant, the court is §not in a position to confidently predict what the outcome would have been without such an error§).
The IJ was correct to conclude that there is §no evidence that the government of Singapore is actively seeking out and prosecuting homosexual relationships or individuals engaging in those relationships, § and that there is §no evidence at all presented that the government of Singapore is prosecuting homosexuals for private acts§.
However, the IJ§s statement that there is §no evidence that the government of Singapore enforces its laws unequally or imposes punishment unequally or selectively against homosexuals§ is, from our reading of the record, not accurate. There was, in fact, evidence of unequal or selective enforcement and punishment of homosexuals in Singapore, including documents suggesting that: (1) gay men are §singled out as subjects§ of a law that is broad enough to include heterosexual conduct; (2) Singapore§s Penal Code criminalizes, without an opposite gender analogue, the abetting of certain male-to-male sexual activity; (3) Singaporean plainclothes police officers routinely pose as decoys and arrest gay men who approach them; and (4) Singapore§s sentencing regime permits punishing gay men in a manner that is disproportionate to the crimes they have committed. Because the IJ did not acknowledge, let alone weigh, this evidence in his oral decision, we cannot confidently determine that the IJ fulfilled his duty to consider all the evidence of record.
Therefore, pursuant to INS v. Ventura, 537 U.S. 12 (2002), we remand to the BIA for it, in turn, to remand to the IJ to consider all record evidence relating to the unequal or selective prosecution or punishment of homosexual males in Singapore and, having done so, to redetermine, in light of the full record, whether Yeoh has met his burden of establishing a §well-founded fear of [future] persecution§ on account of his sexual orientation if forced to return to Singapore. Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003); see also Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir . 2005) (persecution on the basis of sexual orientation may warrant a grant of asylum).
While we express no view as to the ultimate determination whether the record§viewed as a whole§supports Yeoh§s eligibility for asylum, we agree that, if he cannot establish asylum eligibility, he also cannot satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). In that event, Yeoh§s CAT claim would also fail because Yeoh will not have established a reasonable fear of persecution§much less torture§upon his return to Singapore. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001).
PETITION GRANTED.