NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAMZA EWEEDAH, AKA Hamza Nabil 

Eweedah, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 19-71214 

Agency No. A200-569-716 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 6, 2020

Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District 

Judge.

Hamza Eweedah, a native of Saudi Arabia, petitions for review of a decision 

of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the order 

of an immigration judge (“IJ”) denying Eweedah’s applications for asylum, 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Edward R. Korman, United States District Judge for 

the Eastern District of New York, sitting by designation.

FILED

MAR 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction over Eweedah’s petition for review under 8 U.S.C. 

§ 1252, grant the petition, and remand for further proceedings.

In the original appeal from the IJ’s order, the BIA held that Eweedah’s 

conviction under California Vehicle Code § 20001(b)(2) for hit-and-run driving 

constituted a particularly serious crime making him ineligible for asylum or 

withholding of removal under the Immigration and Nationality Act and the CAT.

1

 

See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).

After Eweedah petitioned for review, we granted the parties’ joint motion to remand 

to allow agency consideration of our intervening opinion in Gomez-Sanchez v. 

Sessions, 892 F.3d 985 (9th Cir. 2018), which held that in determining whether a 

conviction constitutes a “particularly serious crime,” the IJ “must take all reliable, 

relevant information into consideration . . . including the defendant’s mental 

condition at the time of the crime, whether it was considered during the criminal 

proceedings or not,” id. at 996.

2

 

1

In this petition for review, Eweedah challenges only the IJ’s denial of 

withholding of removal under the Immigration and Nationality Act and the CAT. 

He has not appealed the IJ’s denial of deferral of removal under the CAT.

2 Before Gomez-Sanchez, the BIA had held that “mental health is not a factor 

to be considered in a particularly serious crime analysis.” Matter of G-G-S-, 26 I. & 

N. Dec. 339, 339 (B.I.A. 2014).
3 

On remand, Eweedah asked the BIA either to “remand the case back to the 

[IJ] to re-evaluate her decision” in light of Gomez-Sanchez, or, in the alternative, to 

“reverse[] the IJ’s decision and find that the hit-and-run was not a particularly serious 

crime.” Declining to take either suggested course, the BIA held that Eweedah’s

mental health condition at the time of the hit-and-run accident did not affect its prior 

holding that his crime was particularly serious. Eweedah again petitioned for 

review, arguing that the BIA erred by not remanding for the IJ to make this 

determination in the first instance. We agree. 

In determining whether a crime is particularly serious, the agency must

consider all “reliable, relevant” facts, with a focus on whether the alien poses a 

danger to the community. Gomez-Sanchez, 892 F.3d at 996; see Matter of Carballe, 

19 I. & N. Dec. 357, 360 (B.I.A. 1986). This is the type of fact-intensive inquiry 

that the IJ, not the BIA, should ordinarily undertake in the first instance. See Reyes 

v. Lynch, 842 F.3d 1125, 1142 & n.18 (9th Cir. 2016); 8 C.F.R. § 1003.1(d)(3)(iv) 

(“[T]he Board will not engage in factfinding in the course of deciding appeals.”). 

The IJ did not do so here, presumably because Gomez-Sanchez had not yet 

been decided when the original order denying relief was issued. Although Eweedah 

testified about his mental condition at the time of the hit-and-run incident, the IJ did 

not explicitly weigh that testimony in concluding that Eweedah’s crime was 

particularly serious. The BIA therefore should have remanded the matter to the IJ 
4 

for an initial determination of whether Eweedah’s crime was particularly serious 

considering this mental health evidence. Although Eweedah suggested to the BIA

that it could decide the issue on its own, a petitioner cannot confer fact-finding 

powers on the BIA. See Reyes, 842 F.3d at 1142-43.

PETITION GRANTED; REMANDED.