Mussie Gebreweldi v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUSSIE GEBREWELDI, No. 20-71009
Petitioner, Agency No. A215-816-451
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2021
Seattle, Washington
Before: HAWKINS and CALLAHAN, Circuit Judges, and FITZWATER,**
District Judge.
Mussie Gebreweldi, a native and citizen of Eritrea, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal of an
immigration judge’s denial of Gebreweldi’s motion to reopen his removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part
and deny in part the petition for review.
Gebreweldi contends for the first time that, as an alien seeking entry into the
United States for the purpose of applying for asylum, he is not inadmissible under 8
U.S.C. § 1182(a)(7)(A)(i)(I) as charged. Generally, we lack jurisdiction over legal
claims not presented in the administrative proceedings below. Alvarado v. Holder,
759 F.3d 1121, 1127 (9th Cir. 2014). Although he concedes that he failed to raise
this challenge before the IJ or BIA either in his original removal proceedings or in
his motion to reopen, Gebreweldi argues that he is exempt from the normal
exhaustion requirement because exhaustion would have been futile. See id. at 1129(explaining that exhaustion is not required “if the BIA—bound by our prior
precedent—would be precluded from granting relief”). Contrary to Gebreweldi’s
contention, our decision in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017),
overruled by Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc), did not address
the specific issue he now raises or “entirely foreclose[] [the issue] such that the
agency [could not] give it unencumbered consideration.” Alvarado, 759 F.3d at
1128. Accordingly, we lack jurisdiction to consider Gebreweldi’s challenge to his
inadmissibility charge. See id. at 1127.
Gebreweldi next contends that the BIA erred in its conclusion that he failed
to demonstrate changed country conditions to support his motion to reopen. The
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BIA did not abuse its discretion. See Toufighi v. Mukasey, 538 F.3d 988, 992 (9th
Cir. 2008). The BIA reasonably concluded that the evidence submitted in support
of Gebreweldi’s motion indicated that the conditions in Eritrea were largely
unchanged and that Gebreweldi failed to demonstrate that he was similarly situated
to the individuals discussed in the reports and articles. See Najmabadi v. Holder,
597 F.3d 983, 989–90 (9th Cir. 2010).
The BIA also did not err by declining to address Gebreweldi’s challenge to
the adverse credibility determination that the IJ rendered in connection with
Gebreweldi’s applications for relief from removal. Gebreweldi did not challenge
the adverse credibility determination by way of a direct appeal of the IJ’s denial of
his applications for relief from removal, nor did he challenge it in his motion to
reopen. Instead, he raised this challenge for the first time in his appeal of the IJ’s
denial of his motion to reopen, and the BIA acted within its discretion by declining
to address the merits of the argument. See Honcharov v. Barr, 924 F.3d 1293, 1296–
97 (9th Cir. 2019).
Gebreweldi’s corrected motion to stay removal [Docket Entry #15] is denied
as moot.
PETITION DISMISSED, in part; DENIED, in part.
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