Cissy Mazzi v. Loretta Lynch
UNPUBLISHED AUTHORED OPINION filed. Originating case number: A087-177-648 Copies to all parties and the district court/agency. .. [15-1408]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CISSY SEGUJJA MAZZI,
LORETTA E. LYNCH, Attorney General,
On Petition for Review of an Order of the Board of Immigration
October 26, 2016
December 1, 2016
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior
Petition for review granted in part and case remanded by
Senior Judge Davis wrote the opinion, in
which Chief Judge Gregory and Judge Wynn joined.
ARGUED: Lori Beth Schoenberg, LAW OFFICES OF LORI B. SCHOENBERG,
Los Angeles, California, for Petitioner.
Lance Lomond Jolley,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
ON BRIEF: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, Jesse M. Bless, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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DAVIS, Senior Circuit Judge:
Cissy Segujja Mazzi (“Mazzi”), a native and citizen of Uganda,
petitions for review of the final order of the Board of Immigration
Appeals (“BIA”) regarding her asylum and withholding of removal
For the reasons that follow, we grant in part Mazzi’s
petition and remand the case to the BIA for further proceedings.
Mazzi is a native and citizen of Uganda.
When Mazzi was
eleven years old, she moved with her family to a village in Bukwo,
a district in eastern Uganda, where her maternal grandparents
Mazzi’s mother and maternal grandparents belonged to the
mutilation (“FGM”). 1
Mazzi’s mother passed away in 1990, the year
We provide the following description of the underlying act:
Female genital mutilation, commonly called FGM, is the
designation generally given to a class of surgical
procedures involving the removal of some or all of the
external genitalia, performed primarily on girls and
young women in Africa and Asia. Often performed under
instruments, FGM is extremely painful, permanently
disfigures the female genitalia, [and] exposes the girl
or woman to the risk of serious, potentially lifethreatening
infection, urine retention, stress, shock, psychological
trauma, and damage to the urethra and anus.
result in the permanent loss of genital sensation in the
victim and can adversely affect sexual function.
Haoua v. Gonzales, 472 F.3d 227, 230 n.5 (4th Cir. 2007)
(alteration in original) (internal quotation marks and citations
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that Mazzi’s sister turned sixteen.
Some months later, Mazzi’s
grandmother arranged for her sister to undergo FGM so she could
marry a village elder.
Fearing she would be next to forcibly
undergo FGM, Mazzi began to save money to purchase a bus ticket to
Kampala, where her father lived.
When Mazzi was fifteen years old, she was taken by her sister
to the village elders to undergo circumcision.
Mazzi was able to
escape with the assistance of a friend, who gave her enough money
to purchase a bus ticket to Kampala.
When she found her father,
he allowed her to live with him and his new family.
tribe, the Baganda, did not practice FGM, and none of her halfsiblings
Mazzi enrolled in a nearby secondary school and was
later admitted to Makerere University.
encountered a girl from her Bukwo village, Lumonya, who recognized
Upon returning from class one day, Mazzi found her sister
and her brother-in-law waiting for her in her dorm room.
had informed her mother where Mazzi lived, and Mazzi’s sister used
omitted). FGM has also been described as genital circumcision or
cutting. See Gomis v. Holder, 571 F.3d 353, 355 (4th Cir. 2009);
Kourouma v. Holder, 588 F.3d 234, 242 (4th Cir. 2009). We have
long recognized that FGM constitutes persecution within the
meaning of the Immigration and Nationality Act. Haoura, 472 F.3d
at 231-32 (citations omitted).
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this information to find Mazzi.
Although the visit was short,
Mazzi’s sister promised to come back and visit soon.
believed it was no longer safe to live in the campus dorms, and
she moved off-campus and commuted during her four years at the
Believing that her village elders were afraid of
challenging her father, Mazzi rented a two-room house close to her
In 2003, Mazzi obtained a job at Kyambogo University.
Mazzi’s father promised to check up on her, Mazzi moved to a new
house closer to her work.
Three months later, Mazzi learned that
her neighbor recognized her as a Sabiny woman who had escaped
This neighbor threatened to reveal Mazzi’s identity
and location to Sabiny elders, and she extorted goods and services
from Mazzi in exchange for her silence.
In 2004, Mazzi moved in
the middle of the night to escape this neighbor.
After she fled,
Mazzi kept to herself and did not talk to others.
months later, she boarded a taxi whose conductor was a man from
her Bukwo village.
The conductor told the taxi driver that Mazzi
was the girl from the Sentambule family, her brother-in-law’s
family, who had escaped FGM.
Mazzi left the taxi at the next stop;
thereafter, she avoided public transportation.
that she could not travel freely in Uganda due to fear she would
be recognized and turned over to the Sabiny or her sister’s family.
She also explained that FGM was considered a rite of passage for
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girls in the Sabiny tribe, and uncircumcised girls and women were
often blamed for any misfortunes that befell their families.
Mazzi’s sister suffers from chronic back pain and an inability to
conceive, and these misfortunes are blamed on Mazzi’s refusal to
undergo the knife.
Mazzi testified that her brother and her
friend, John Cabonga, told her over the phone that she will be
forcibly cut if she returns to Uganda.
In September 2003, Mazzi entered the United States before
returning to Uganda after a few weeks.
On or about August 28,
2005, Mazzi entered the United States on a valid student visa.
She later sought to adjust her status to a legal permanent resident
based on her marriage to a U.S. citizen, but her application was
denied due to a finding of fraud.
Mazzi subsequently fell out of
On August 18, 2008, the Department of Homeland Security
served Mazzi with a Notice to Appear (“NTA”).
The NTA charged
Mazzi with removability under § 237(a)(1)(B) of the Immigration
and Nationality Act as someone who remained beyond the period
authorized by her visa.
Mazzi admitted she was removable as
charged, but she requested time to apply for adjustment of status.
Mazzi filed an I-360 Petition as a self-petitioning spouse of an
abusive U.S. citizen, which was denied for insufficient evidence.
Mazzi then sought a continuance to apply for adjustment of status
in light of her second marriage.
The IJ denied this request given
the earlier finding of fraud, which would prohibit any future
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adjustment applications on the basis of marriage.
Mazzi applied for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).
was filed, at the earliest, on February 25, 2013.
In 2010, before
the filing of this application, Mazzi’s father passed away.
Mazzi submitted country reports and articles in support of
her claims for relief.
Her reports explained the significance of
FGM within Sabiny culture, and one report indicated that the
practice of FGM was estimated at approximately 50% among the
Other reports indicated that after the Ugandan government
prohibited genital cutting in 2010, the Sabiny have continued —
and may have increased — their practice of FGM.
provided testimony of her experiences in Uganda, including her
encounters with members of the Sabiny community, her sister, and
her brother-in-law while living 300 miles away from her Bukwo
Given her father’s passing in 2010, Mazzi believes there
is now no one in Uganda who can protect her from the Sabiny tribe
if she were forced to return.
Following a hearing, the Immigration Judge (“IJ”) denied all
requested relief. The IJ first determined that Mazzi’s application
for asylum was time-barred under 8 U.S.C. § 1158(a)(2)(B). Turning
to the merits, the IJ ruled that Mazzi’s claimed fear of future
persecution was not objectively reasonable.
The IJ found this
claimed fear was inconsistent with evidence proffered by both Mazzi
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and the Government, which demonstrated that only 1% of the female
population in Uganda is subjected to FGM, the practice of FGM is
targeted at unmarried girls under the age of 18, and FGM is now
prohibited by the Ugandan government.
Mazzi was 37 years old.
At the time of the hearing,
The IJ further opined that Mazzi’s own
experiences in Uganda undermined the objective reasonableness of
her fear of future persecution.
The IJ noted that Mazzi was never
kidnapped or taken for the procedure after she fled her Bukwo
village, and the IJ concluded that Mazzi can avoid persecution by
relocating to a different part of the country.
objectively credible, the IJ denied Mazzi’s requests for asylum
and withholding of removal.
Then, finding that Mazzi failed to
demonstrate a clear probability of torture at the instigation of
or with the consent or acquiescence of a public official, the IJ
also denied Mazzi’s request for protection under CAT.
The BIA dismissed Mazzi’s appeal in a two-page opinion.
the outset, the BIA found Mazzi’s claim of ineffective assistance
of counsel to be unsupported by documentation.
Turning to the
IJ’s denial of relief, the BIA provided two grounds for dismissing
Mazzi’s remaining claims.
First, the BIA stated that Mazzi “ha[d]
not meaningfully challenged the Immigration Judge’s decision, or
its underlying reasoning, as it pertains to the timeliness of her
application, the credibility of her claim, or the basis of her
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“In any event,” however, the BIA provided a second
ground for dismissal: it “f[ound] no clear error in the Immigration
Judge’s findings of fact and otherwise adopt[ed] and affirm[ed]
h[er] decision” to deny Mazzi’s requests for relief.
Mazzi timely filed a petition for review as to her asylum and
pursuant to 8 U.S.C. § 1252.
Where, as here, the BIA adopts and supplements an IJ decision,
we review both decisions.
Cordova v. Holder, 759 F.3d 332, 337
(4th Cir. 2014) (citing Ai Hua Chen v. Holder, 742 F.3d 171, 177
(4th Cir. 2014)).
We must uphold the BIA’s determinations unless
Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011).
Legal conclusions are reviewed de novo.
Cordova, 759 F.3d at 337.
conclusive “unless any reasonable adjudicator would be compelled
Because Mazzi did not raise any arguments regarding the
dismissal of her CAT claim, she has waived any issues regarding
this form of relief. See Karimi v. Holder, 715 F.3d 561, 565 n.2
(4th Cir. 2013). In a mere footnote, the Government argues that
Mazzi also waived her withholding of removal claim by failing to
address this issue in her opening brief.
This contention is
unavailing. Throughout her opening brief, Mazzi repeatedly argues
that the IJ and BIA erred when denying both her claims for asylum
and withholding of removal.
to conclude to the contrary.”
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Id. (quoting Chen, 742 F.3d at 178).
However, the agency abuses its discretion where it “fail[s] to
offer a reasoned explanation for its decision, or if it distort[s]
Tassi, 660 F.3d at 719 (citing Jian Tao Lin v. Holder, 611 F.3d
228, 235 (4th Cir. 2010)).
In reviewing the agency’s decisions,
it is “our responsibility to ensure that unrebutted, legally
Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)
Mazzi first contends that the BIA erred when it summarily
concluded that Mazzi “ha[d] not meaningfully challenged the [IJ]’s
decision, or its underlying reasoning, as it pertains to the
timeliness of her application, the credibility of her claim, or
the basis for her fear.”
Pet’r’s Br. 34 (quoting J.A. 3).
argues that this failure warrants a remand for further explanation.
The Supreme Court has instructed that “the process of review
requires that the grounds upon which the administrative agency
acted be clearly disclosed and adequately sustained.”
Chenery Corp., 318 U.S. 80, 94 (1943).
We “cannot review the BIA’s
decision [when] the BIA has given us nothing to review.”
Holder, 585 F.3d 818, 822 (4th Cir. 2009) (alteration in original)
(quoting Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir.
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Where, as we conclude occurred here, “a BIA order does
not demonstrate that the agency has considered an issue, ‘the
proper course, except in rare circumstances, is to remand to the
(quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)).
its order, the BIA did not define what constitutes a “meaningful
challenge” to an order of removal, nor did it explain why Mazzi’s
challenges were deemed inadequate.
Moreover, from this conclusory
assertion, it is impossible to identify which specific challenges,
if any, were considered by the BIA when it found Mazzi’s appeal
Well-established precedent dictates that a court must
“restrict itself to what the agency actually did say” rather than
“guess[ing] at what the agency meant to say,” id., and the BIA’s
“cursory statement . . . does not provide us enough information to
conduct a meaningful review of the BIA’s conclusion,” Fang Lin,
517 F.3d at 693.
If this were the only ground for the BIA’s denial order, “the
proper course . . . [would be] to remand to the agency for
additional investigation or explanation.”
338 (citation omitted).
Cordova, 759 F.3d at
However, the BIA provided an alternative
basis for its decision: it reached the merits of the IJ’s decision
and found no clear error in her findings.
No remand is
necessary if the BIA correctly found no clear error in the IJ’s
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arguments challenging the IJ’s denial of relief.
Mazzi argues that the IJ’s findings were not supported by
In assessing this contention, we must note
an important distinction between Mazzi’s claims for asylum and
withholding of removal.
An individual applying for asylum must
show “by clear and convincing evidence that the application has
been filed within one year after the date of [her] arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). Withholding of removal,
on the other hand, is not subject to the one-year limitation bar.
Accordingly, given that Mazzi filed her application for asylum
years after she entered the United States in 2005, she may pursue
asylum only if she “qualifies for an exception to the one-year
8 C.F.R. § 1208.4(a)(2)(i)(B).
The IJ rejected Mazzi’s contentions that she could identify
§ 1158(a)(2)(D) that would excuse her untimely filing.
analysis,” and she concluded Mazzi is thereby “barred from asylum.”
The BIA found no clear error in any of the IJ’s
determinations, and it adopted and affirmed her denial of asylum.
Absent a colorable constitutional claim or question of law, “we
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demonstrated changed or extraordinary circumstances to excuse her
Gomis v. Holder, 571 F.3d 353, 359 (4th Cir.
Mazzi contends that the BIA’s “refusal” to review the IJ’s
assessment of her asylum claim was “prejudicial,” given this
Court’s inability to consider “questions concerning the timeliness
of [her] asylum application.”
Pet’r’s Br. 38.
In making this
assertion, however, Mazzi mischaracterizes the BIA’s order; the
BIA reached the findings of fact articulated in the IJ’s decision
and expressly adopted the IJ’s reasoning.
Mazzi then challenges
the conclusory nature with which the BIA affirmed and adopted the
IJ’s order, arguing that the BIA “effectively insulated” the IJ’s
determinations from review.
Id. at 39.
This argument is without
merit. In Gomis, despite the BIA’s conclusory assertion that there
was “no error in the [IJ]’s decision” regarding timeliness, we
held we lacked jurisdiction to review the IJ’s determination.
Gomis, 571 F.3d at 358-59.
timeliness basis for the denial of Mazzi’s application for asylum.
regarding her eligibility for asylum, and her Petition for Review
is denied as it relates to her asylum claim.
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We now turn to Mazzi’s withholding of removal claim.
qualify for withholding of removal, an applicant must show a clear
probability that her life or freedom would be threatened in the
country of removal because of her “race, religion, nationality,
membership in a particular social group, or political opinion.”
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2).
removal is mandatory if the applicant satisfies her burden of
Gomis, 571 F.3d at 359 (citation omitted).
applicant must prove her “removal would create a ‘reasonable
possibility’ — as low as a ten percent chance — of persecution”
for asylum purposes, Crespin-Valladares v. Holder, 632 F.3d 117,
126 (4th Cir. 2011) (citing INS v. Cardoza-Fonseca, 480 U.S. 421,
431 (1987)), an applicant must prove it is more likely than not
she will suffer persecution to qualify for withholding of removal,
Gomis, 571 F.3d at 359.
Here, Mazzi asserts she is a member of a particular social
group: women in the Sabiny tribal group in Uganda that, due to
their gender and kinship ties, are subjected to the practice of
The IJ found that Mazzi’s fear of persecution was not
objectively reasonable, and it found her testimony to be not
credible exclusively on this basis.
Mazzi argues that the IJ and
BIA erred by relying exclusively on general country conditions and
failing to consider compelling, contradictory evidence specific to
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Mazzi’s individual experiences. We find that this failure warrants
remand for further explanation.
Although our task as the “reviewing court is not to reweigh
legally significant evidence is not arbitrarily ignored by the
Chen, 742 F.3d at 179 (quoting Baharon, 588 F.3d at
The agency may not “base [its] decision on only isolated
snippets of [the] record while disregarding the rest,” Baharon,
588 F.3d at 233, and the agency may not “selectively consider
evidence, ignoring that evidence that corroborates an alien’s
attempting to reach,” Chen, 742 F.3d at 179 (quoting Tang v. U.S.
Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009)).
offered numerous pieces of compelling evidence, including, most
tellingly, evidence specific to her individual experiences, for
which the BIA and IJ failed to adequately account.
First, the IJ failed to analyze Mazzi’s proposed social group
Failure to analyze an immigrant’s proposed
social group is an abuse of discretion requiring remand.
Cordova, 759 F.3d at 338 (4th Cir. 2014).
Mazzi testified that
she is considered Sabiny due to her kinship and family ties, and
thus her proposed social group was Sabiny women who had not yet
been subjected to FGM.
Yet the IJ asserted that Mazzi’s protected
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analyzed Mazzi’s claim in light of general statistics regarding a
different proposed social group: Ugandan women fearing FGM.
The IJ either failed to analyze Mazzi’s proposed social
group completely, or the IJ disregarded Mazzi’s proposed social
group and failed to account for Mazzi’s compelling evidence that
she is a Sabiny woman subject to the practice of FGM.
The IJ may
have had reason to disregard Mazzi’s proposed social group or her
testimony about her Sabiny ties, but the IJ failed to address
either element in her analysis.
Second, the IJ relied heavily on the evidence that only 1% of
all Ugandan girls and women are subjected to FGM.
least one article submitted by Mazzi indicates that approximately
50% of Sabiny girls and women undergo FGM.
that Mazzi, as a Sabiny woman, faces a higher risk of FGM than
others outside her specific ethnic group is not inconsistent with
country reports documenting a low rate of FGM across all ethnic
Yet the IJ did not account for this higher, relevant risk
in her analysis of the evidence, nor did she explain why she
dismissed this evidence in favor of general statistics. Base rates
Third, although the IJ emphasizes that the Ugandan government
has prohibited the use of FGM, reports also acknowledge that the
Sabiny have continued to practice FGM despite this ban.
Indeed, at least one report acknowledged an increase in the
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prevalence of FGM among Sabiny communities arising from defiance
to the new law.
J.A. 282, 286.
The IJ did not discuss or
acknowledge this defiance to, if not failure of, enforcement and
instead, relied only on evidence that FGM was outlawed in Uganda.
Fourth, the IJ emphasized that “not one single article”
indicates a previously married woman, or a woman over the age of
18, has been subjected to FGM in Uganda.
the IJ, Mazzi’s age and marital status likely save her from
However, at least one article submitted by Mazzi
states: as it has “often [been] reported, married women who had
avoided FGM as girls are swelling the ranks of those being cut in
J.A. 273 (emphasis added).
testified that uncircumcised women continue to be blamed for the
misfortunes of their family, no matter their age or marital status.
Mazzi’s sister suffers from chronic back pain and an inability to
conceive, which she blames on Mazzi’s refusal to undergo the knife.
An article submitted by Mazzi corroborates her testimony that
“uncircumcised women were seen by the Sabiny as the source of
infertility in the household.”
According to Mazzi’s
testimony, multiple individuals have informed her that, due to
this cultural belief, she will be forcibly cut if she returns to
Uganda. Although these reasons for enforcing circumcision on Mazzi
appear pressing and relevant despite her age and marital status,
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the above evidence was not identified or discussed in the IJ’s
analysis regarding Mazzi’s objective fear or credibility.
individual experiences in Uganda: she noted it was “interesting”
that Mazzi lived with her mother’s Sabiny family until she was
fifteen years old and was never taken for FGM during this time,
and she noted that when Mazzi moved away from her mother’s family,
“[n]o one came after her and stole her into this ritual.”
However salient they may be, these assertions comprise an
incomplete narrative insofar as they fail to acknowledge other
compelling aspects of Mazzi’s testimony.
That is, Mazzi was able
precisely because she fled her home at the moment she was taken
Moreover, even when Mazzi lived 300 miles away from her
Sabiny community, she was identified on at least three separate
On one occasion, she was extorted with threats of
revealing her identity and location to Sabiny elders.
occasion, her sister and brother-in-law successfully tracked down
Mazzi’s location and visited her with promises to return, despite
her distance from her home village.
The threat of persecution is
especially troubling now that her father, the only person Mazzi
believed could protect her from her Sabiny family and elders, has
since passed away.
Mazzi’s testimony that she continued to be
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recognized and threatened by the Sabiny community, even when living
300 miles away from her Bukwo village, further call into question
“reasonably relocate within the country of Uganda to avoid any
We have determined that country conditions reports should not
be viewed “‘as Holy Writ’ immune to contradiction,” and Mazzi is
“entitled to have the expert agency, the BIA, evaluate in a
transparent way the evidence that [she has] presented.”
F.3d at 179, 181 (citations omitted).
The evidence identified
regarding an objective likelihood of persecution and credibility
as it relates to Mazzi’s specific circumstances, and we believe it
is “strong enough that it requires the agency to account for it in
a meaningful way.”
Id. at 181.
We are persuaded that the IJ and
BIA failed to adequately “offer a specific, cogent reason for
rejecting [the significant] evidence” identified above in favor of
general statistics, Tassi, 660 F.3d at 720, and they failed to
reviewing court to perceive that they have heard and thought and
not merely reacted,” Chen, 742 F.3d at 179 (quoting Ayala v. U.S.
Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010)).
We are restricted
by this silence; even if the IJ or BIA had sound reasons for
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evidence, we are not permitted to “guess at what an agency meant
Nken, 585 F.3d at 822 (emphasis added).
To the extent
evidence, it was plainly “insufficient to demonstrate that the
agency gave it more than perfunctory consideration.”
F.3d at 181.
ignored by the factfinder.”
Baharon, 588 F.3d at 233 (citation
omitted). Thus, given the deficiencies identified above, we remand
this case for further explanation.
See Chen, 742 F.3d at 179-81
(remanding where the BIA and IJ failed to adequately account for
petitioners’ “powerful contradictory evidence”); Nken, 585 F.3d at
822 (remanding where the BIA failed to explain why a strong piece
of evidence provided insufficient justification for reopening the
For the foregoing reasons, we grant the Petition for Review
as it relates to the denial of withholding of removal, and we
remand for the agency to reevaluate it in accordance with this
PETITION FOR REVIEW
GRANTED IN PART AND CASE REMANDED
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