Lavern Neal v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                       MAY 12 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LAVERN M. NEAL, AKA Lavern Marie                No.    20-70024
    Neil,
    Agency No. A031-111-660
    Petitioner,
    v.                                             MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted May 7, 2021**
    Seattle, Washington
    Before: CHRISTEN and BENNETT, Circuit Judges, and KOBAYASHI,***
    District Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Leslie E. Kobayashi, United States District Judge for
    the District of Hawaii, sitting by designation.
    Lavern Neal petitions this court for review of her order of removal to
    Belize. We have jurisdiction under 
    8 U.S.C. § 1252
     and deny the petition.
    The government initiated removal proceedings against Neal in 2013, charging
    her with removability as an alien convicted of an aggravated felony. Following a
    merits hearing, in which Neal appeared pro se, the immigration judge (IJ) denied her
    relief from removal.
    First, after correctly citing the relevant factors from Matter of Frentescu, 
    18 I. & N. Dec. 244
     (BIA 1982), the IJ determined that Neal’s conviction for assault
    with a deadly weapon was a particularly serious crime, rendering her ineligible for
    withholding of removal under both the Immigration and Nationality Act (INA) and
    Convention Against Torture (CAT) regulations. Second, the IJ found that Neal was
    ineligible for deferral of removal under the CAT regulations, despite Neal’s credible
    fear of a particular gang member in Belize against whom she testified in the United
    States several decades before. Among other reasons, the IJ found that Neal could
    not prove “that her concerns regarding [that particular gang member], gang members
    in Belize, or other instances of gang violence [could] be attributed to the government
    in Belize or to sanctioned acts of torture,” but rather, that “[t]he level of gang
    violence appear[ed] to be related to criminal enterprises, drug trafficking, and turf
    wars.”
    2
    Neal appealed to the Board of Immigration Appeals (BIA), which dismissed
    the appeal in 2015. The BIA found that Neal waived any argument that her assault
    conviction was not for a particularly serious crime by failing to “cogently address
    [that] determination on appeal,” and that the IJ “did not clearly err in finding that it
    was unlikely that [Neal] would be tortured or killed if she returned to Belize.” The
    BIA also rejected Neal’s argument that “she [was] not a citizen of Belize, because
    she left Belize and entered the United States before Belize declared its independence
    from the United Kingdom in 1981, while it was still known as British
    Honduras.” “In doing so, [the BIA took] administrative notice of the Belize
    constitution and the Belizean Nationality Act of 1981,” which “clearly indicate[d]
    that individuals born in British Honduras before independence became citizens of
    the new country of Belize as an operation of law.”
    Neal petitioned this court for review, and we granted the government’s
    unopposed motion to remand the case to allow the BIA to take any actions necessary
    to comply with Franco-Gonzalez v. Holder, No. CV-10-02211, 
    2014 WL 5475097
    (C.D. Cal. Oct. 29, 2014). See Neal v. Lynch, No. 14-73590. The BIA, in turn,
    remanded the case to the IJ with instructions “to take the steps necessary to comply
    with Section III.B of the permanent injunction issued in Franco-Gonzales v. Holder
    . . . , including making a ‘Competency Review’ for the purpose of determining
    [Neal’s] mental competency to represent herself.” In 2018, the IJ “conclude[d] that
    3
    the record reflect[ed] that [Neal] was competent when she appeared before the [IJ]”
    in the initial proceedings. In 2019, the BIA dismissed Neal’s appeal of the IJ’s 2018
    decision, finding that it was “clear from the transcript of [Neal’s] removal
    proceedings that she had a rational and factual understanding of the nature and object
    of her removal proceeding, and understood and was able to exercise her rights within
    those proceedings—including the right to seek representation by counsel and the
    right to present evidence on her own behalf.”
    Now on appeal, Neal argues that she is entitled to withholding of removal
    because her 2010 conviction for assault with a deadly weapon was not for a
    particularly serious crime; that in the alternative, she is entitled to deferral of removal
    because it is more likely than not that she would be tortured by, or with the
    acquiescence of, the Belize government if returned there; that her removal case
    should be terminated because she is not a citizen of Belize; and that she should be
    able to present her case anew under Franco-Gonzalez. We address each argument
    in turn. In doing so, our “review is limited to the BIA’s decision[s], except to the
    extent that the IJ’s opinion[s are] expressly adopted.” Popova v. INS, 
    273 F.3d 1251
    ,
    1257 (9th Cir. 2001) (quotation marks and citation omitted).
    First, we agree with the BIA that when Neal first appeared before it, she failed
    to raise the argument that her assault conviction was not for a particularly serious
    crime. When a petitioner fails to exhaust her administrative remedies by raising
    4
    certain arguments before the proper administrative body, we will not review those
    arguments later on appeal. See Farhoud v. INS, 
    122 F.3d 794
    , 797 (9th Cir.
    1997). Thus, we deny Neal’s petition for review of this issue without reaching its
    merits.
    Second, substantial evidence supports the BIA’s determination that Neal is
    not more likely than not to face torture in Belize, and that Neal’s fear of possible
    torture is not attributable to the government of Belize or to sanctioned acts of torture.
    “In the 20 years since [her son’s sentencing, Neal] has not been harmed in the United
    States.” As the BIA found, “[t]here was . . . no evidence that the Belizean authorities
    would acquiesce to the torture of [Neal] by . . . gang members.” We are not
    compelled to disagree with the BIA that it is “unlikely that [Neal] would be tortured
    or killed if she returned to Belize.” See 
    8 U.S.C. § 1252
    (b)(4)(B).
    Third, Neal is a citizen of Belize, so it would be proper to remove her there.
    Under 
    8 U.S.C. § 1231
    (b)(2)(D), if an alien does not designate a country of removal,
    then “the Attorney General shall remove the alien to a country of which the alien is
    a subject, national, or citizen.” The Belize Constitution provides that “[e]very
    person who, immediately before [Independence Day], is a citizen of the United
    Kingdom and Colonies . . . shall become a citizen of Belize on Independence Day.”
    Constitution of Belize, pt. III, § 23(2); see also Belizean Nationality Act, ch. 161
    (implementing the constitution’s citizenship provisions). Thus, as a former citizen
    5
    of British Honduras, Neal is now a citizen of Belize, and it was proper for the BIA
    to order her removed there.1
    Finally, substantial evidence supports the IJ’s and BIA’s determinations that
    Neal was competent to represent herself during her initial immigration proceedings.
    In conducting the mental competency review required by Franco-Gonzalez, the IJ
    concluded that Neal was competent to represent herself without a qualified
    representative in her initial proceedings before the IJ, and the BIA affirmed. Given
    the record evidence demonstrating Neal’s understanding of the nature and purpose
    of her removal proceedings, as well as her understanding of and ability to exercise
    her rights within those proceedings, we are not compelled to reach an opposite
    conclusion.
    PETITION DENIED.
    1
    This is true even though Belize has yet to formally recognize Neal as its
    citizen. See Pelich v. INS, 
    329 F.3d 1057
    , 1061 (9th Cir. 2003).
    6