Doissaint v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VOLSAINT DOISSAINT, aka Dolsin 
Volsin, Nos. 06-73218
Petitioner, 06-75390
v.  Agency No.
MICHAEL B. MUKASEY, Attorney A72-385-953
General, OPINION
Respondent.

On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted
May 7, 2008—Seattle, Washington
Filed August 18, 2008
Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Graber
10975
DOISSAINT v. MUKASEY 10977
COUNSEL
Christopher Strawn, Northwest Immigration Rights Project,
Seattle, Washington, for the petitioner.
Deitz P. Lefort and Lyle D. Jentzer, Office of Immigration
Litigation, Civil Division, United States Department of Jus-
tice, Washington, D.C., for the respondent.
OPINION
GRABER, Circuit Judge:
The Board of Immigration Appeals (“BIA”) denied Peti-
tioner Volsaint Doissaint’s request for relief under the Con-
vention Against Torture (“CAT”) and his motion to reopen
proceedings. He petitions this court for review from those
denials. We grant in part and dismiss as moot in part.
Petitioner, a Haitian citizen, entered the United States in
1992. He was granted asylum in 1993 and became a lawful
permanent resident in 1995. In 2000, a jury convicted Peti-
tioner of three counts of second-degree assault under Oregon
law. He was sentenced to 70 months’ imprisonment. Upon
release from prison, the government placed Petitioner in
removal proceedings.
Petitioner applied for asylum, withholding of removal, and
relief under the CAT. The immigration judge (“IJ”) ruled that
Petitioner was statutorily ineligible for asylum or withholding
10978 DOISSAINT v. MUKASEY
of removal because he had conceded removability as an
aggravated felon. The IJ denied Petitioner’s CAT claim
because he did not believe that Petitioner was credible and,
therefore, concluded that Petitioner had not shown a “clear
probability” of a risk of torture if returned to Haiti.
Petitioner appealed the IJ’s decision to the BIA. The BIA
dismissed the appeal, ruling: “[Petitioner] does not contest on
appeal the denial of his application for cancellation of
removal or his request for protection under the Convention
Against Torture. We thus deem those issues abandoned and
need not address them here.” The BIA proceeded to discuss
and reject the merits of Petitioner’s claims for asylum and
withholding of removal. Petitioner timely petitioned for
review of the BIA’s order dismissing his appeal (No. 06-
73218). In connection with that petition, he now concedes that
he is removable and ineligible for asylum and withholding of
removal, but he challenges the BIA’s denial of his CAT
claim.
Petitioner then filed a motion to reopen with the BIA. He
argued that the BIA should reopen his removal proceedings
and remand to an IJ to consider new evidence, not previously
available, concerning his CAT claim. Petitioner also
requested a discretionary waiver of inadmissibility under
Immigration and Nationality Act (“INA”) § 209(c), 8 U.S.C.
§ 1159(c).
The BIA denied Petitioner’s motion to reopen. The BIA
denied Petitioner’s request for discretionary relief, finding
that he was precluded from adjustment of status under INA
§ 209(a), 8 U.S.C. § 1159(a). In a footnote, the BIA stated:
With regard to [Petitioner’s] request for a section
209(c) waiver, we also note that [Petitioner] has a
serious history of criminal misconduct in this coun-
try. Consequently, we will also deny [Petitioner’s]
DOISSAINT v. MUKASEY 10979
motion because we do not find that he would merit
such relief in the exercise of discretion.
The BIA also found that Petitioner could have submitted his
new evidence earlier and ruled that he had failed to make a
prima facie showing of eligibility for CAT relief. The BIA
stated in a footnote: “We find no clear error in the Immigra-
tion Judge’s finding of fact; nor do we find that the Immigra-
tion Judge erred in concluding that [Petitioner] failed to
provide sufficient credible evidence to demonstrate that he, or
his family members, have been victims of past persecution.”
Petitioner timely petitioned for review of the BIA’s order
denying his motion to reopen (No. 06-75390). Pursuant to 8
U.S.C. § 1252(b)(6), we consolidated the two petitions for
review.
In No. 06-73218, Petitioner argues that the BIA erred in
finding that he had abandoned his CAT claim. The govern-
ment does not dispute that Petitioner substantively briefed his
CAT claim—the record clearly demonstrates that he did.1 See
Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006)
(The “[p]etitioner raised the issue . . . before the BIA, and our
precedent requires nothing more.” (internal quotation marks
omitted)). Nor does the government dispute that the BIA
declined to consider the CAT claim in its order dismissing
Petitioner’s appeal. Rather, the government argues, without
citation to any authority, that the BIA cured any error “by
reviewing and affirming the immigration judge’s adverse
1
In his Notice of Appeal to the BIA, Petitioner stated that the IJ “erred
in denying [his] renewed application for asylum, withholding, and relief
under the Convention Against Torture,” that “[t]he credibility decision of
the IJ was in error,” and that “[t]he IJ erred in concluding that [he] [wa]s
ineligible for asylum, withholding and relief under the Convention Against
Torture.” In his brief to the BIA, Petitioner summarized: “The IJ ruled that
he was ineligible for asylum and withholding. The IJ denied his applica-
tion for relief under the Convention Against Torture on the grounds that
his testimony was not credible.” Petitioner then proceeded to use half of
his brief to challenge the IJ’s adverse credibility finding.
10980 DOISSAINT v. MUKASEY
credibility determination” in its order denying Petitioner’s
motion to reopen.
[1] “[I]t goes without saying that IJs and the BIA are not
free to ignore arguments raised by a petitioner.” Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). The BIA thus
erred as a matter of law when it construed Petitioner’s prop-
erly raised and briefed CAT claim as abandoned. Although
we typically review for substantial evidence the BIA’s denial
of CAT relief, Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.
2004), we review de novo the BIA’s resolution of a question
of law, Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.
2003). The question whether the BIA can cure this legal error
in its subsequent consideration of Petitioner’s motion to
reopen is a legal question of first impression in our circuit.
We hold that the answer is “no.”
“In reviewing the decision of the BIA, we consider only the
grounds relied upon by that agency.” Andia v. Ashcroft, 359
F.3d 1181, 1184 (9th Cir. 2004) (per curiam). “[T]his court
cannot affirm the BIA on a ground upon which it did not
rely.” Ernesto Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir.
2000). In examining the petition of the BIA’s dismissal of
Petitioner’s appeal, No. 06-73218, the BIA relied only on the
ground that Petitioner abandoned his CAT claim. As previ-
ously stated, this ground is erroneous.
[2] The government argues that the BIA analyzed the mer-
its of Petitioner’s CAT claim when denying his motion to
reopen. However, a motion to reopen is not a means by which
the BIA can correct its own legal error. A motion to recon-
sider seeks to correct alleged errors of fact or law. 8 U.S.C.
§ 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b). A motion to reopen,
on the other hand, is purely fact-based, seeking to present
newly discovered facts or changed circumstances since a peti-
tioner’s hearing. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.
§ 1003.2(c). As described by this court: “A motion to recon-
sider does not present new law or facts, but rather challenges
DOISSAINT v. MUKASEY 10981
determinations of law and fact made by the BIA. In contrast,
a motion to reopen seeks to present new facts that would enti-
tle the alien to relief from deportation.” Mohammed v. Gon-
zales, 400 F.3d 785, 792 n.8 (9th Cir. 2005). Consequently,
the legal basis for the IJ’s denial of Petitioner’s CAT claim—
the IJ’s adverse credibility finding—was not before the BIA
on Petitioner’s motion to reopen.
[3] If and when the BIA realized its error in this case, it
should have reconsidered its original decision and addressed
Petitioner’s CAT claim on the merits. See 8 C.F.R.
§ 1003.2(a) (“The Board may at any time reopen or recon-
sider on its own motion any case in which it has rendered a
decision.”). The BIA could not, as a procedural shortcut, deny
Petitioner’s motion to reopen and proceed as if its legal error
had never occurred.
Moreover, it is not clear, as the government contends, that
the BIA ever reviewed the IJ’s adverse credibility determina-
tion. On his direct appeal, Petitioner raised numerous chal-
lenges to the IJ’s adverse credibility finding. But the issue
was not briefed in Petitioner’s motion to reopen, and the lim-
ited extent of the BIA’s analysis in denying that motion was:
“We find no clear error in the Immigration Judge’s finding of
fact.” The BIA never specified which finding of fact it meant
or why it found no clear error.2 See Ghaly v. INS, 58 F.3d
1425, 1430 (9th Cir. 1995) (stating that “the Board’s opinion
must contain a statement of its reasons for denying the peti-
tioner relief adequate for us to conduct our review”).
[4] We hold that, when the BIA commits legal error in a
petitioner’s direct appeal, the BIA cannot cure that error in a
denial of the petitioner’s motion to reopen. Consequently, we
grant the petition on the BIA’s dismissal of Petitioner’s
appeal (No. 06-73218). We remand for the BIA to examine
2
The fact that the adverse credibility determination was not before the
BIA at that time may explain this lack of specificity.
10982 DOISSAINT v. MUKASEY
Petitioner’s CAT claim in the first instance.3 See INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam)
(“Generally speaking, a court of appeals should remand a case
to an agency for decision of a matter that statutes place pri-
marily in agency hands.”).
In No. 06-75390, Petitioner argues that the BIA abused its
discretion in failing to balance the equities of his request for
a 209(c) waiver. Because we reverse the BIA’s original deci-
sion, we therefore dismiss as moot Petitioner’s petition for
review of the BIA’s denial of his motion to reopen that deci-
sion. See Goldeshtein v. INS, 8 F.3d 645, 646 n.1 (9th Cir.
1993) (“In light of our decision [granting] the first petition for
review, we need not reach the issues raised in the subsequent
petitions. Those petitions are dismissed as moot.”); Moran-
Enriquez v. INS, 884 F.2d 420, 423 n.2 (9th Cir. 1989) (hold-
ing that, because the court granted the petition on the BIA’s
dismissal of the petitioner’s appeal, “we need not consider
[the petitioner’s] other arguments and dismiss his petition for
review of the motion to reopen (No. 89-70010) as moot”).
Should Petitioner file another motion to reopen, he is free to
raise his claims anew.
Petition for review in No. 06-73218 GRANTED; petition
for review in No. 06-75390 DISMISSED AS MOOT.
3
When neither the BIA nor the IJ makes an adverse credibility finding,
we must accept the petitioner’s testimony as true. Knezevic v. Ashcroft,
367 F.3d 1206, 1209 (9th Cir. 2004). Here, however, the IJ found Peti-
tioner not credible. Although the BIA acknowledged this determination
and failed to rule on it in dismissing Petitioner’s direct appeal, we remand
credibility determinations “when the IJ or the BIA has raised a doubt as
to a petitioner’s credibility.” Leiva-Montalvo v. INS, 173 F.3d 749, 751 n.2
(9th Cir. 1999); see also Hartooni v. INS, 21 F.3d 336, 343 (9th Cir. 1994)
(“Here, however, we cannot say that no doubts have been raised about [the
petitioner’s] credibility. We therefore remand to the Board so that it may
make a determination of [the petitioner’s] credibility in the first instance
. . . .” (internal quotation marks omitted)).