Odei v. Garland ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1315
EBENEZER ODEI,
Petitioner,
v.
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Selya and Gelpí, Circuit Judges.
Stella B. Angwafo and Stella B. Angwafo Law Office on brief
for petitioner.
Brian M. Boynton, Principal Deputy Attorney General, Civil
Division, United States Department of Justice, John S. Hogan,
Assistant Director, Office of Immigration Litigation, and Andrea
Gevas, Trial Attorney, Office of Immigration Litigation, on brief
for respondent.
June 15, 2023
SELYA, Circuit Judge. This case has its roots in a land
grab that occurred long ago and far away. The petitioner, Ebenezer
Odei, traces his membership in a particular social group back to
events that occurred in his native Ghana in 1984 and claims that
— if repatriated — he has a reasonable fear of persecution on
account of his membership in that social group. The immigration
judge (IJ) and the Board of Immigration Appeals (BIA) both rejected
the petitioner's claim. He now seeks judicial review. After
careful consideration, we deny the petition.
I
We briefly rehearse the relevant facts and travel of the
case. On November 14, 2001, the petitioner entered the United
States on a B-2 visa as a nonimmigrant visitor. He overstayed
that visa but nonetheless attempted to secure legal status — well
after the visa's expiry — through marriage to a United States
citizen. By virtue of this marriage, he applied for an adjustment
of status, and his wife concurrently petitioned, on his behalf,
for an I-130 immigrant visa. Those efforts, though, came to
naught: in September of 2009, the United States Citizenship and
Immigration Services (USCIS) denied the visa petition on the ground
that the couple had failed to prove the bona fides of their
marriage. Consequently, the application for adjustment of status
also was denied.
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The Department of Homeland Security then notified the
petitioner that he was subject to removal and ordered him to appear
before the immigration court for removal proceedings. Those
proceedings were stayed for some time to adjudicate additional
successive I-130 petitions filed on the petitioner's behalf. In
June of 2011, the petitioner's wife again sought an I-130 immigrant
visa, which was denied when the couple failed to appear for a
required interview with USCIS officials. In September of 2012,
the couple divorced. The petitioner remarried in June of the
following year, and his second citizen-spouse, like the first,
filed an I-130 petition to his behoof. That petition was also
denied.
Removal proceedings resumed in December of 2015. The
petitioner conceded removability but cross-applied for withholding
of removal and protection under the United Nations Convention
Against Torture (CAT). In support, he testified that his family
had been displaced from their cocoa farm in Ghana when a local
chieftain expropriated the property in 1984. According to the
petitioner, the chieftain demanded that his father relinquish the
farm, and when his father refused, the chieftain retaliated by
burning the farm and beating his parents. Still, the family
remained in place. The chieftain was not pleased and had the
petitioner and his brothers beaten.
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Following this second act of violence, the family fled
to the capital city of Accra, where they lived for fifteen years.
Eventually, the petitioner travelled from there to the United
States. He claimed that if returned to Ghana, he would be tortured
and killed because his family never surrendered formal title to
the land that was taken from them.
The IJ was unpersuaded. She found that the petitioner
was not a credible witness; that he had failed to show that he
belonged to a persecuted social group; and that the persecution he
claimed to have suffered was not on account of a statutorily
protected ground but, rather, was due to the chieftain's desire to
give the land to another family. The IJ also found that the
petitioner had failed to establish a clear probability that he
would be persecuted in the future should he be returned to Ghana.
Accordingly, the petitioner's applications for withholding of
removal and protection under the CAT were denied, and the IJ
ordered him removed to Ghana.
The petitioner appealed the IJ's denial of his
application for withholding of removal (but not the denial of his
CAT application) to the BIA. The BIA affirmed the IJ's decision,
holding that the IJ's determination that the petitioner had failed
to establish a causal connection between the chieftain's
predations and a statutorily protected ground was not clearly
erroneous. Because that issue was dispositive of the appeal, the
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BIA refrained from addressing any other aspects of the IJ's
decision. After the BIA dismissed the petitioner's appeal, this
timely petition for judicial review ensued.
II
"Where the BIA does not adopt the IJ's findings, we
review the BIA's decision rather than the IJ's." Aguilar-Escoto
v. Garland, 59 F.4th 510, 515 (1st Cir. 2023) (quoting Lin v.
Mukasey, 521 F.3d 22, 26 (1st Cir. 2008)). In this instance, the
BIA did not expressly adopt the IJ's decision. Instead, it held
only that the IJ's finding on a dispositive issue was not clearly
erroneous. Our review thus focuses on the BIA's decision. See
id.We review the BIA's legal conclusions de novo, albeit
with "some deference to the agency's reasonable interpretation of
statutes and regulations that fall within its sphere of authority."
Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). "Our
review of the factual findings of the agency proceeds pursuant to
the substantial evidence standard." Sanchez-Vasquez v. Garland,
994 F.3d 40, 46 (1st Cir. 2021). Under that deferential standard,
we accept the BIA's findings "so long as they are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Id. (quoting Perez-Rabanales v. Sessions,
881 F.3d 61, 65 (1st Cir. 2018)). Thus, we will uphold those
findings unless "the record is such as to compel a reasonable
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factfinder to reach a contrary determination." Id. (quoting Perez-
Rabanales, 881 F.3d at 65).
III
To secure withholding of removal, a noncitizen must
demonstrate a clear probability that, if removed to his homeland,
he would be persecuted on account of his race, religion,
nationality, membership in a particular social group, or political
opinion. See Barnica-Lopez v. Garland, 59 F.4th 520, 527-28 (1st
Cir. 2023); see also 8 U.S.C. § 1231(b)(3)(A). In order to
establish that such persecution awaits him, the noncitizen must
prove "a threshold level of past or anticipated serious harm, a
nexus between that harm and government action or inaction, and a
causal connection" between that harm and one of the statutorily
protected grounds. Barnica-Lopez, 59 F.4th at 528. That burden
can be satisfied by the petitioner's testimony if he is deemed
credible, although the IJ may also require the submission of
additional corroborating evidence, as long as it can reasonably be
expected that such evidence can be obtained. See 8 U.S.C.
§§ 1158(b)(1)(B)(ii); 1231(b)(3)(C).
The petitioner mounts four challenges in his petition
for review. First, he assigns error to the IJ's adverse
credibility determination. Second, he assigns error to the IJ's
determination that he is not a member of a particular social group
consisting of members of his own family who are opposed to the
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chieftain and corruption. Third, he argues that he is entitled to
withholding of removal because he is not free to return to his
family's farm in Ghana. Fourth, he assigns error to the BIA's
affirmance of the IJ's determination that the seizure of his
family's farm was not on account of a statutorily protected ground.
We address each of these challenges in turn.
A
The first two challenges can be quickly dispatched. The
BIA did not address either the IJ's credibility determination or
her rejection of the proposed definition of the social group to
which the petitioner allegedly belonged (comprising members of the
petitioner's own family who are opposed to the chieftain and
corruption). The BIA affirmed the IJ's decision exclusively on
the ground that the IJ did not clearly err in determining that the
harm the petitioner suffered was not causally connected to his
membership in a particular social group. In reaching this
determination, the BIA implicitly assumed that the petitioner was
credible and that he is a member of a particular social group. As
we are reviewing the decision of the BIA, see Aguilar-Escoto, 59
F.4th at 515, those assumptions hold here.1
1 We note that in one instance in his briefing, the petitioner
recharacterizes his particular social group as members of his
family "who have been deprived due to corruption from their
patrimony." That group, albeit similar, would nonetheless be
distinct from the particular social group that the petitioner
proffered before the BIA. The petitioner, however, never argued
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B
As to his third challenge, the petitioner argues that
because 8 U.S.C. § 1231(b)(3)(A) prohibits the removal of a
noncitizen to a country in which the noncitizen's "life or freedom
would be threatened," he cannot lawfully be removed to Ghana as he
would lack the "freedom" there to return to his family's farm.
But this is too parochial a view, and the petitioner offers no
case law or other relevant authority to support the proposition
that so narrow a restriction on his freedom can amount to
persecution. It is firmly settled in our jurisprudence that
"arguments advanced in a perfunctory manner, unaccompanied by
citations to relevant authority, are deemed waived." Ahmed v.
Holder, 611 F.3d 90, 98 (1st Cir. 2010); see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). That stricture is
controlling.2
to the BIA that he belonged to the former group, so a question of
exhaustion emerges. Because the government has raised the
exhaustion requirement and because the petitioner failed to argue
before the BIA that he was a member of some additional social
group, we find that such an argument is unexhausted. We therefore
decline to consider it. See 8 U.S.C. § 1252(d)(1); see also
Santos-Zacaria v. Garland, ___ S. Ct. ___, ___-___ (2023) [No. 21-
1436, slip op. at 3-11] (holding that administrative exhaustion
requirement set forth by 8 U.S.C. § 1252(d)(1) is not
jurisdictional in nature but, rather, a claims-processing rule
subject to forfeiture and waiver).
In all events, the case law is antithetic to the petitioner's
2
position. See Miranda-Bojorquez v. Barr, 937 F.3d 1, 5 (1st Cir.
2019) (explaining that government can rebut presumption that
asylum applicant faces threat of future persecution in country of
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C
This brings us to the petitioner's fourth challenge,
which addresses the BIA's determination that the IJ did not commit
clear error in finding that the harm suffered by the petitioner
was not attributable to any statutorily protected ground. A causal
connection between the harm incurred and the petitioner's
statutorily protected ground exists only if the protected ground
"was 'one central reason' for the harm alleged." Sanchez-Vasquez,
994 F.3d at 47 (quoting Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir.
2008)). "[T]he statutorily protected ground need not be the sole
factor driving the alleged persecution . . . ." Barnica-Lopez, 59
F.4th at 528 (quoting Loja-Tene v. Barr, 975 F.3d 58, 61 (1st Cir.
2020)). But a "central reason" cannot be "incidental, tangential,
superficial, or subordinate to another reason for harm." Sanchez-
Vasquez, 994 F.3d at 47 (quoting Singh, 543 F.3d at 5).
The petitioner does not squarely address this issue in
his opening brief other than to suggest that because chieftains
play a significant role in Ghanaian governance, the BIA incorrectly
characterized the family's dispute with the chieftain as a personal
dispute unconnected to any statutorily protected ground. That
suggestion, though, conflates two different elements of the
persecution analysis: one element that requires a connection
his nationality by showing that he can relocate to different part
of that country); see also 8 C.F.R. § 208.13(b)(1)(i)(B).
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between the harm suffered and government action or inaction and
another that requires that the harm be connected to a statutorily
protected ground. See Barnica-Lopez, 59 F.4th at 528.
The BIA decision is not contrary to the petitioner's
contention that the chieftain acted on behalf of the government.
The BIA simply stated that reprisals perpetrated by government
actors based on personal animosities are insufficient to establish
a causal connection between the alleged harm and a protected
ground. That statement is correct. See Sompotan v. Mukasey, 533
F.3d 63, 71 (1st Cir. 2008) ("Events that stem from personal
disputes are generally not enough to show the required nexus.").
And — mindful of the teachings of the case law — the BIA affirmed
the IJ's finding that the interpersonal conflict between the
petitioner's family and the chieftain was unconnected to a
statutorily protected ground for relief.
The petitioner demurs. Attempting to parry the BIA's
finding, he argues that it was legal error for the BIA to
countenance one motive for the chieftain's actions to the exclusion
of others. We agree, of course, that a noncitizen seeking relief
need not demonstrate an unalloyed motive for persecution. All
that is required is that a motive implicating a statutorily
protected ground be "'one central reason' for the harm alleged."
Sanchez-Vasquez, 994 F.3d at 47 (quoting Singh, 543 F.3d at 5).
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Here, however, the discussion is academic. The
petitioner waited until his reply brief to raise this argument.
It is thus waived. See Xin Qiang Liu v. Lynch, 802 F.3d 69, 75
(1st Cir. 2015).
IV
We need go no further. For the reasons elucidated above,
we deny the petition.
So Ordered.
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