Lavern Neal v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED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
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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
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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