Elhadji Seye v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0169n.06
Case No. 18-3651
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 02, 2019
DEBORAH S. HUNT, Clerk
ELHADI MANASSIR SEYE, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. After the Department of Homeland Security began
removal proceedings against Elhadji Manassir Seye, he sought asylum, withholding of removal,
and protection under the Convention Against Torture. An immigration judge denied him relief and
the Board of Immigration Appeals affirmed. For the following reasons, we DENY his petition for
review.
I.
Seye is a native and citizen of Senegal. For most of his life he was a member of an Islamic
sect called the Morite Brotherhood, like the rest of his family. At some point, he began to support
a competing Islamic sect called the Tijane Brotherhood. His family tried to convince him to return
to the Morite Brotherhood but failed.
What his family could not accomplish with words they later tried to accomplish with sticks
and fists: Seven members of Seye’s family beat him at his uncle’s home and demanded that he
Elhadi M. Seye v. William P. Barr, No. 18-3651
return to the Morite Brotherhood. The beating lasted about an hour and only stopped when he
agreed to return. As a result, Seye was left bruised and cut. But before leaving the house, Seye
recanted his support for the Morite Brotherhood. He then ran from the home and took a taxi to
Dakar.
In Dakar, Seye lived with a friend for one month until his friend told him that he could not
stay with him forever. Around this time, he encountered a man from Mbour who told him that his
family was still looking for him and would try to kill him if they found him. He never reported this
or his beating to the Senegalese police. Instead, he decided to leave Senegal and eventually found
his way to the United States.
The Department of Homeland Security (“DHS”) detained Seye when he arrived. Seye later
expressed a fear of retuning to Senegal and an asylum officer determined he had a credible fear of
persecution. DHS then placed Seye in removal proceedings and, proceeding pro se, he sought
asylum, statutory withholding of removal, and protection under the Convention Against Torture.
An immigration judge (“IJ”) denied Seye’s application for relief and the Board of Immigration
Appeals (“BIA”) affirmed. Seye now challenges the denial of his asylum and withholding of
removal claims.
II.
To be eligible for asylum, Seye must show that he is “unable or unwilling to return” to
Senegal “because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A). If Seye cannot establish his eligibility for asylum, he
necessarily fails to establish his eligibility for withholding of removal too. See Singh v. Ashcroft,
398 F.3d 396, 401 (6th Cir. 2005). Here, the BIA issued its own decision agreeing with and
2
Elhadi M. Seye v. William P. Barr, No. 18-3651
affirming portions of the IJ’s decision. So we review both the BIA’s decision and those parts of
the IJ’s decision relied on by the BIA. See Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir. 2005).
We review legal conclusions de novo and factual findings for substantial evidence. Zhao v. Holder,
569 F.3d 238, 246 (6th Cir. 2009). Under the substantial evidence standard, we “may not reverse
the Board’s determination simply because we would have decided the matter differently.” Id. at
247 (quoting Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008)). The BIA’s findings of fact
are conclusive unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” Zhaou, 569 F.3d at 247 (quoting 8 U.S.C. § 1252(b)(4)(B)).
III.
Seye begins his challenge by arguing that the IJ erred in two related ways: First, by
requiring him to corroborate certain aspects of his oral testimony. And second, by failing to analyze
whether that evidence was reasonably obtainable. Accordingly, Seye’s argument is based on the
premise that the IJ denied him relief because he failed to corroborate his testimony. But that
premise is mistaken.
To be sure, the IJ found “that there were elements of his claim that seem[ed] rather
implausible” so that “some corroborative evidence [was] in order.” [A.R. 47–48.] That said, in the
next section of its decision—aptly titled, “Corroboration”—the IJ noted “several exhibits” that
Seye submitted “[i]n support of his application.” [Id. at 48.] And it found “that [Seye] ha[d]
submitted evidence to corroborate some aspects of his claim.” [Id.]
The reason the IJ denied Seye relief is that he failed to “demonstrate that [he] was
persecuted on account of his religion.” [Id. at 49.] In other words, the IJ found that Seye had failed
to meet his burden of proof even though he corroborated parts of his claim. Seye’s remaining
evidentiary arguments are, at bottom, challenges to that factual finding.
3
Elhadi M. Seye v. William P. Barr, No. 18-3651
“When an asylum claim focuses on non-governmental conduct, its fate depends on some
showing either that the alleged persecutors are aligned with the government or that the government
is unwilling or unable to control them.” Abdramane v. Holder, 569 F. App’x 430, 437 (6th Cir.
2014) (citing Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009)). Seye failed to make that
showing here. As mentioned, Seye never reported his family’s attack to the Senagalese authorities.
And we have repeatedly held that a petitioner fails to meet his burden when his asylum claim arises
from non-governmental conduct and he has not sought the government’s protection. See, e.g., id.
at 437; El Ghorbi v. Mukasey, 281 F. App’x 514, 517 (6th Cir. 2008); Ralios Morente v. Holder,
401 F. App’x. 17, 24 (6th Cir. 2004).
Seye argues, however, that he was entitled to relief because he “credibly testified” that the
Senegalese police would not have helped him even if he had sought their protection. Although the
IJ found that Seye “was overall a credible witness,” [A.R. 47] he cites nothing to support his
assertion that the IJ had to accept everything he said as true. On the contrary, in both El Ghorbi
and Ralios Morente, we held that the petitioner failed to meet his burden even though the BIA and
IJ, respectively, had found the petitioners to be “credible.” See El Ghorbi, 281 F. App’x at 515;
Ralios Morente v. Holder, 401 F. App’x at 20.
Seye also cites State Department country reports, which detail evidence of corruption in
the Senegalese government, to support his claim that the police would not have helped him. But
these same country reports also show that Senegal’s justice system is capable of arresting,
prosecuting, and convicting criminals. And the reports show that Senegal allows its citizens to
freely associate and practice their religious beliefs “provided public order is maintained.”
[A.R. 234.] See also Perez-Aguilon v. Lynch, 674 F. App’x 457, 463 (6th Cir. 2016) (holding that
4
Elhadi M. Seye v. William P. Barr, No. 18-3651
an asylum applicant had failed to meet his burden where “his only evidence of [] corruption [came]
from the country-condition reports he submitted”).
We find that a reasonable adjudicator would not be compelled to evaluate the facts
differently. Based on those facts, Seye has not met his burden of establishing his eligibility for
asylum. We therefore hold that the IJ’s and BIA’s decisions denying Seye asylum and withholding
of removal were supported by substantial evidence.
Seye also makes several procedural arguments, including that the IJ violated the
Immigration and Nationality Act, the Administrative Procedure Act, and due process by
supposedly failing to develop the administrative record. But Seye did not properly preserve these
claims for our review.
We “may review a final order for removal ‘only if the alien has exhausted all administrative
remedies available to the alien as a matter of right.’” Tomaszczuk v. Whitaker, 909 F.3d 159, 167
(6th Cir. 2018) (quoting 8 U.S.C. § 1252(d)). “Accordingly, this Court may review only those
claims ‘properly presented to the BIA and considered on their merits.’” Id. (quoting Ramani v.
Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)). Seye “failed to satisfy the exhaustion requirement in
this case because these claims were not included in either [his] notice of appeal to the BIA or his
supporting brief.” Id. We therefore lack jurisdiction to review these claims. Id.Seye urges us to disregard our published precedents setting forth this exhaustion
requirement because he thinks 8 U.S.C. § 1252(a)(2)(D), as evidenced by its legislative history,
provides us jurisdiction to review these claims. That, of course, ignores the fact that we are
powerless to overrule the published decisions of a prior panel “unless an inconsistent decision of
the United States Supreme Court requires modification of the decision or this Court sitting en banc
5
Elhadi M. Seye v. William P. Barr, No. 18-3651
overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th
Cir. 1985).
Even so, Seye argues that the better reading of our cases is to view the exhaustion
requirement as a “case processing tool” rather than as a jurisdictional bar to our review. He asserts
that in several of those cases, we “ruled on the ‘due process’ issue” even though we were
jurisdictionally barred. See, e.g., Viluda de Mejia v. Sessions, 691 F. App’x 245, 250 (6th Cir.
2017) (holding that the petitioner’s claim would fail on the merits “even if it were before the
court”). But simply because we have sometimes explained in dicta why a petitioner’s unexhausted
claims would also fail on the merits does not mean we may grant relief on such claims.
Finally, Seye cites Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006), for the
proposition that “[g]enuine due process claims do not require exhaustion of administrative
remedies.” [Seye Reply Br. at 27.] While, in Sterkaj, we said that “an alien’s due process challenge
generally does not require exhaustion,” we also said that “the alien must raise correctable
procedural errors to the BIA.” Sterkaj, 439 F.3d at 279 (citing Ramani, 378 F.3d at 559 and 8
U.S.C. § 1252(d)(1)). We then held that we were precluded from reviewing the petitioner’s due
process claim because he had “failed to exhaust [his] administrative remedies.” Id.Similarly, even if we assume that the IJ had failed to adequately develop the record here,
this was correctable procedural error that Seye could have raised with the BIA. See In Re:
Fernando Saenz-Ledesma, 2014 WL 3795544, at *1 (B.I.A. June 13, 2014) (remanding to the IJ
to develop the record); In Re: Babak Moslemnejad Tork, 2007 WL 927137, at *2 (B.I.A. Feb. 27,
2007) (same). So Seye cannot circumvent our exhaustion requirements.1
1
Our recent decision in Mendoza-Garcia v. Barr, No. 18-3513, 2019 WL 1143956 (6th Cir. Mar.
13, 2019) (published) is not to the contrary. There, we held that due process requires IJs to “help
pro se parties develop the record.” Id. at *3. We did not hold, however, that we have jurisdiction
6
Elhadi M. Seye v. William P. Barr, No. 18-3651
For these reasons, we DENY Seye’s petition for review.
to review this issue where the petitioner has failed to exhaust his administrative remedies. And it
is worth noting that the petitioner in Mendoza-Garcia properly presented this issue to the BIA
before presenting it to our court. See id. at *2.
7