NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUTFI GHOUSHEH, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 15-73386 

Agency No. A070-064-547 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 14, 2018

Submission Deferred March 15, 2018

Resubmitted April 13, 2018

San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior 

District Judge.

Petitioner Lutfi Ghousheh challenges the Board of Immigration Appeals’ 

(“BIA”) determination that Ghousheh is subject to the “terrorism bar” and is thus 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, Senior United States District Judge for 

the Southern District of New York, sitting by designation.

FILED

APR 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

ineligible for cancellation of removal. We grant his petition and remand his case to 

the agency for further proceedings.

An alien who “has received military-type training . . . from or on behalf of 

any organization that, at the time the training was received, was a terrorist 

organization” is barred from, among other forms of relief, cancellation of removal. 

8 U.S.C. § 1182(a)(3)(B)(i)(VIII); see id. § 1229b(c)(4). As relevant here, 

“terrorist organization” means “a group of two or more individuals, whether 

organized or not, which engages in, or has a subgroup which engages in” terrorist 

activities. Id. § 1182(a)(3)(B)(vi)(III). It is uncontested that, if not for this 

terrorism bar, Ghousheh would be eligible for, and entitled to, cancellation of 

removal.

In 1982, Ghousheh received three days of military training from the 

Palestinian Liberation Army in Lebanon (“PLA in Lebanon”). The Immigration 

Judge (“IJ”) found that, at the time, the PLA in Lebanon was a subgroup of the 

Palestinian Liberation Organization (“PLO”) and that the PLO was a terrorist 

organization. The BIA saw no clear error in these findings, and substantial 

evidence supports both.

1

 

1 As to the former finding, record evidence indicates that in 1982 countries 

such as Jordan, Iraq, Syria, and Egypt had PLA brigades attached to, and taking 

orders from, their respective militaries. The same evidence, however, indicates 

that Lebanon did not. Ghousheh testified that, instead, the PLA in Lebanon was 

taking at least some of its orders from the PLO. 
3 

Based on these findings, the BIA concluded that the terrorism bar applied, 

reasoning that “the PLA [in Lebanon], as part of the PLO, thus was also a terrorist 

organization,” and so Ghousheh had “received military-type training from a 

terrorist organization.” This reasoning conflicts with the plain terms of the statute.

2

 

Again, as relevant here the term “terrorist organization” means “a group of two or 

more individuals, whether organized or not,” which either (1) “engages in” terrorist 

activities itself, or (2) “has a subgroup which engages” in terrorist activities. Id.

§ 1182(a)(3)(B)(vi)(III). Although the PLA in Lebanon was clearly “a group of 

two or more individuals,” nothing in the record suggests that, as it existed in 1982,

the PLA in Lebanon met either of the other two statutory criteria.

The government urges us to deny Ghousheh’s petition nevertheless, arguing 

that although Ghousheh received military training “from” the PLA in Lebanon, his

training was still received “on behalf of” the PLO. But we “cannot deny a petition 

for review on a ground that the BIA itself did not base its decision.” Hernandez-

 

As to the latter finding, an expert in Middle Eastern Studies testified that 

around the same time the PLO itself engaged in terrorist activities. Record 

evidence also indicates that a PLO subgroup called Al-Fatah engaged in terrorist 

activities, including the killing of thirty-four Israelis near Haifa in 1978.

2

 “Where—as here—a BIA decision interpreting a statute is ‘unpublished 

and issued by a single member of the BIA,’” the decision receives only deference 

“proportional to its thoroughness, reasoning, consistency, and ability to persuade.”

Lezama-Garcia v. Holder, 666 F.3d 518, 524-25 (9th Cir. 2011) (quoting MejiaHernandez v. Holder, 633 F.3d 818, 822 (9th Cir.2011)).
4 

Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir. 2011). And here the BIA denied 

relief solely on the ground that Ghousheh received military training “from” the 

PLA in Lebanon.

3

 Indeed, the body of the BIA’s decision never mentions the

statutory phrase “on behalf of.” We therefore grant the petition and remand to the 

BIA so that the BIA may consider in the first instance whether Ghousheh is subject 

to the terrorism bar for the reasons on which the Government now relies.

PETITION GRANTED AND REMANDED.

 

3 We review only the BIA’s decision, except where it expressly incorporates 

the IJ’s decision. See Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015).