Nouxay Vixaysack v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOUXAY VIXAYSACK,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-74388
Agency No. A070-344-378
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 11, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Nouxay Vixaysack, a native and citizen of Laos, petitions for review of the
decision of the Board of Immigration Appeals (BIA) affirming the decision of an
immigration judge (IJ) to deny Vixaysack’s application for asylum, withholding of
removal, and protection under the Convention Against Torture. Because the BIA
ignored relevant information from the State Department’s profile of asylum claims
FILED
APR 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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for Laos, we grant the petition for review and remand to the BIA for further
proceedings.
Vixaysack was born in Laos in 1956. During the Vietnam War, Vixaysack’s
brother-in-law, Sourath Sihanat, worked for American CIA agents and reported
movement of the Pathet Lao to American warplanes to assist in bombing
campaigns. At that time, Vixaysack lived in the same house as his sister (Sihanat’s
wife). Sihanat and his wife eventually fled to the United States and are now U.S.
citizens. Vixaysack, who was drafted into the Laotian military, deserted the
military in 1988, in part because he believed that his coworkers suspected him of
being a traitor because he received money from his sister in the United States.
After a year in hiding in Laos, Vixaysack entered the United States in 1990
on a visitor’s visa and immediately applied for asylum. He received a Notice to
Appear in May 2003, alleging that he had overstayed his non-immigrant visa
status. Vixaysack admitted the allegations and removability but requested political
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). Sihanat submitted a declaration stating that he was considered an enemy
collaborator by the Laotian government and that if Vixaysack returned to Laos he
would be in danger as a family member of an enemy collaborator.

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After a hearing, the IJ denied Vixaysack’s application for relief, concluding
that while Vixaysack’s beliefs and testimony were sincere, they did not have a
reasonable basis in fact and did not establish that Vixaysack had a well-founded
fear of future persecution. The BIA agreed with the IJ and dismissed Vixaysack’s
appeal in a per curiam order.
We have jurisdiction over Vixaysack’s petition for review of the BIA’s final
order of removal under 8 U.S.C. § 1252. Where, as here, “the BIA conducts its
own review of the evidence and [applicable] law, our review is limited to the
BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.”
Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir. 2011) (citation and internal
quotation marks omitted). Factual findings, including those underlying the BIA’s
decision that an applicant is not eligible for asylum, withholding of removal, or
CAT protection, are reviewed for substantial evidence. Abufayad v. Holder, 632
F.3d 623, 629 (9th Cir. 2011); Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th
Cir. 2006).
In order to be eligible for asylum, an applicant must show a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. Sharma v. Holder, 633 F.3d 865, 869
(9th Cir. 2011). Here, the BIA found that Vixaysack’s fear of future persecution is

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not objectively reasonable. The BIA noted that Vixaysack had not suffered
mistreatment while in the military and that his sister (Sihanat’s wife) had recently
visited Laos without any problems. Given that context, the BIA found that it was
appropriate for the IJ to give Sihanat’s declaration relatively little weight.
But in making this finding, the BIA ignored highly relevant evidence
contained in the State Department’s Profile of Asylum Claims from Laos. The
BIA quoted from that document to support its decision:
We also note that the Department of State Profile of Asylum Claims
from Laos states the following:
A Lao[] citizen generally can return to Laos without fear
of retribution unless his activities o[r] those of his family
might cause the government to charge the individual with
crimes against the [S]tate. This would involve [the]
holding [of] high status in the pre-1975 government . . .
Exh. 8B at 5-6. The respondent has not shown that anyone in his
family held high status in the pre-1975 government of Laos or that the
current regime suspects that any of his family members held such
status.
This quotation, however, omitted the most relevant language from the State
Department Profile. The portion edited in the BIA decision reads in full:
This would involve the holding of high status in the pre-1975
government or participation at that time in activities looked upon with
particular disfavor by the present regime, such as close association
with Vang Pao, a Hmong leader who worked with American officials
during the war in Vietnam.

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We note that Vixaysack recently informed the court that he intends to file a1
motion to reopen with the BIA based on the approval of an I-130 petition filed on
his behalf by his U.S.-citizen wife, whom he married while this appeal was
pending. Our disposition of this appeal has no impact on Vixaysack’s ability to
continue to pursue adjustment of status based on his marriage.
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There is no dispute that Sihanat worked with American officials during the war in
Vietnam. Thus, rather than supporting the BIA’s decision, the State Department
profile seems to support Vixaysack’s assertion that family members of someone
like Sihanat cannot “generally . . . return to Laos without fear of retribution.”
Given this omission of the most relevant evidence from the State
Department report, we cannot find that the BIA’s decision was supported by
substantial evidence. We remand for the BIA to consider the report in its entirety,
and to consider Vixaysack’s other evidence, particularly the declaration of Sihanat,
in light of that report. The petition for review is GRANTED.1

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