Brezilien v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN YVES BREZILIEN, aka Jean 
Yves Brezilieh, No. 06-73693
Petitioner,
v.  Agency No.
A071-894-056
ERIC H. HOLDER, Attorney General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued July 15, 2008
Submitted May 5, 2009
San Francisco, California
Filed May 12, 2009
Before: Richard A. Paez and Marsha S. Berzon,
Circuit Judges, and Harold Baer,* District Judge.
Opinion by Judge Paez
*The Honorable Harold Baer, Jr., Senior United States District Judge
for the Southern District of New York, sitting by designation.
5675
5678 BREZILIEN v. HOLDER
COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner.
BREZILIEN v. HOLDER 5679
Peter D. Keisler, Richard M. Evans, and David E. Dauen-
heimer, Office of Immigration Litigation, U.S. Department of
Justice, Washington, DC, for the respondent.
OPINION
PAEZ, Circuit Judge:
Petitioner Jean Yves Brezilien, a native and citizen of Haiti,
petitions for review of the final decision of the Board of
Immigration Appeals (“BIA”) sustaining the government’s
appeal of an Immigration Judge’s (“IJ”) grant of asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). The IJ initially found Brezilien
removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien
who had been convicted of a crime involving moral turpitude.
Brezilien, appearing pro se, conceded removability but
applied for asylum, withholding of removal, and CAT relief.
He asserted a fear of future persecution on account of his ties
to former Haitian president Jean-Bertrand Aristide and the
Lavalas political party, and a fear of torture on account of his
criminal status in the United States, which he argued would
subject him to indefinite detention in deplorable conditions in
Haiti.
On three separate occasions, the IJ granted Brezilien relief
from removal. The government appealed the IJ’s rulings to
the BIA, and each time the BIA reversed the IJ’s decision.
The BIA held that Brezilien’s fear of future persecution was
speculative, that he could avoid harm through internal reloca-
tion, and that there was no pattern or practice of persecution
of Aristide or Lavalas supporters in Haiti.
All of the BIA’s decisions leading up to its final decision
are properly before us in this proceeding. Brezilien raises a
number of challenges to the BIA’s rulings, some of which are
5680 BREZILIEN v. HOLDER
unexhausted or the BIA failed to address, and therefore we do
not reach the merits of those arguments. We agree, however,
with Brezilien’s main argument that the BIA violated its own
regulation—8 C.F.R. § 1003.1(d)(3)(i)-(iii)—when it engaged
in factfinding to deny Brezilien’s asylum, withholding, and
CAT claims. The BIA also improperly reversed the IJ’s fac-
tual finding, without applying the “clearly erroneous” stan-
dard of review, that Brezilien and his family suffered
persecution because of their ties to the Lavalas party. The
BIA’s errors of law require that we grant the petition and
remand for further proceedings. In light of our disposition on
this issue, we need not address Brezilien’s remaining chal-
lenges to the BIA’s disposition of his asylum and withholding
claims.
I.
Flight from Haiti
Brezilien is a native and citizen of Haiti. From 1989 until
he fled Haiti in 1991, Brezilien was an active supporter of for-
mer Haitian president Aristide.1 He distributed leaflets and
attended rallies for Aristide, wore an Aristide T-shirt that had
been personally autographed by Aristide, and posted many
pictures of Aristide in his neighborhood, including one in
front of his family home. He also canvassed the countryside
and urban neighborhoods before and on the day of the 1990
election, garnering support for Aristide. When Brezilien stood
at the polls on election day and showed voters how to vote for
Aristide’s party, several government soldiers observed his
activities.
1
Jean-Bertrand Aristide was democratically elected President of Haiti in
1990 and took office in February 1991. He resigned after a no-confidence
vote by Parliament in September 1991 and spent several years in exile
before returning to Haiti in October 1994 to complete his term. After Aris-
tide left office in 1996, he created a new political party, Lavalas. Lavalas
won the 2000 elections, and Aristide served again as President from 2001
until 2004, when he was ousted by rebels and forced to leave Haiti.
BREZILIEN v. HOLDER 5681
Brezilien’s family was associated with Aristide and Aris-
tide’s party, Lavalas, primarily through Brezilien’s father
Remon. Remon had known Aristide from a young age and
served as his personal bodyguard during his election cam-
paign and presidency. Two of Brezilien’s older brothers, Cor-
lod and Renoll, also worked for Aristide. As a 15-year-old
boy, Brezilien sometimes accompanied his father to work and
thus was seen with Aristide.
On September 28, 1991, the night before the coup d’etat
that displaced Aristide, Brezilien was at home in Port-au-
Prince with his father and his younger brother, Gerald. His
father was not on duty that day as Aristide’s bodyguard.
Insurgent soldiers known as Ton Ton Macoutes, who would
eventually oust Aristide, shot at Brezilien’s house that morn-
ing. In the evening, Brezilien’s father received phone calls
from friends warning him to stay at home. Later that night,
the soldiers returned and shot at the house again. When Brezi-
lien’s father opened the door to see who was outside, the Ton
Ton Macoutes shot and killed him.
Brezilien and Gerald hid in the basement while the Ton
Ton Macoutes, who knew the boys were inside, continued fir-
ing at the house. After spending a day in the basement, Brezi-
lien came out when he heard a neighbor talking outside. The
neighbor allowed Brezilien and Gerald to spend that night at
his house, and the next day drove them forty kilometers to
Leogane, where they stayed with the neighbor’s relative for
one month. After about one month of living in fear and hiding
from the rebel military’s search for Aristide supporters, Brezi-
lien and his brother fled by bus to a remote village, St. Louis.
On November 13, 1991, when Brezilien was 16 years old,
he and Gerald left Haiti in a boat with 67 other people. After
two or three days, the U.S. Coast Guard intercepted the boat
and transported its occupants to the Guantanamo Naval Base
in Cuba. Immigration officials interviewed Brezilien and
paroled him into the United States. He was subsequently
5682 BREZILIEN v. HOLDER
granted asylum on June 12, 1993 and lawful permanent resi-
dent status in 1994.
1993-2003: Visits to Haiti
Brezilien subsequently returned to Haiti three times, each
time for less than two weeks. In 1998, Brezilien traveled to
Haiti because two of his older brothers had been killed by the
Ton Ton Macoutes. His mother told him that they had been
working in a political office for Rene Preval and Aristide in
Port-au-Prince. According to Brezilien’s mother, one of his
brothers was gunned down as he entered the office, and then
the Ton Ton Macoutes went inside the office and shot his
other brother. No one was arrested in connection with the
murders.
Although he was afraid to do so, Brezilien returned to Haiti
for his brothers’ funerals. Fearing that someone would recog-
nize and kill him, Brezilien dressed as a woman after his
arrival in Haiti. Because the Ton Ton Macoutes knew that
Brezilien’s mother and his deceased father were affiliated
with Aristide, he felt that he could not safely stay at his moth-
er’s house. Brezilien stayed instead with his aunt, who was
not well-known, and did not travel to Port-au-Prince at all.
Brezilien attended his brothers’ funerals, both held on the
same day, though he felt that it was dangerous for him to do
so. When he left Haiti, Brezilien again took precautions so as
not to be recognized.
Despite ongoing political turmoil in Haiti, Brezilien
returned on two other occasions, in 2000 and 2003, to visit his
mother, who was hospitalized with heart problems. Although
Brezilien did not want to return to Haiti, his mother thought
she was going to die, and asked him to come see her. During
both trips, Brezilien disguised himself at the airport. He
stayed with his aunt and uncle and did not go out, fearing that
his life was in danger.
BREZILIEN v. HOLDER 5683
Arizona Criminal Conviction
On February 23, 2000, following an encounter with Sonya
White, who is the mother of Brezilien’s United States citizen
daughter, Brezilien was charged with aggravated assault
under Arizona Revised Statutes Sections 13-1204(A)(11), (B),
-1203(A)(1), -1001, -3601(A), -701, -702, -702.01 and -801
(2000). He ultimately pled guilty to attempted aggravated
assault and was sentenced to a deferred period of four months
in Maricopa County Jail with furlough consideration and three
years probation, which he completed in one year and six
months. Thereafter, Brezilien’s conviction was reduced from
a felony to a misdemeanor.
When Brezilien returned from Haiti in July 2003 after visit-
ing his ailing mother, he applied for admission as a returning
lawful permanent resident at the Miami International Airport.
He was told to report to the Department of Homeland Security
(“DHS”) office in Phoenix with court-certified copies of his
criminal record. When Brezilien reported to DHS, he was
taken into custody and issued a Notice to Appear, which
charged him as removeable under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) as an alien who has been convicted of a
crime involving moral turpitude. Brezilien admitted the fac-
tual allegations in the Notice to Appear, but applied for asy-
lum, withholding of removal, and relief under CAT, arguing
that he would be subject to persecution and torture if returned
to Haiti.
Additional Facts Relevant to Asylum and CAT Claims
Brezilien testified before the IJ in 2003 that it would be
dangerous for him to live anywhere in Haiti. He testified that
if he were to return, the Ton Ton Macoutes would kill him,
as they had killed his father and brothers. Brezilien further
testified that although many of the Ton Ton Macoutes left
Haiti, some of them remain, hoping to return to power. Brezi-
lien fears that they will recognize him as a Lavalas supporter.
5684 BREZILIEN v. HOLDER
Brezilien continues to support Lavalas and believes that Aris-
tide’s reelection in 2000 represented a positive change for the
people of Haiti.
Brezilien also fears that if he is removed to Haiti, he will
be imprisoned upon his return because of his assault convic-
tion, and will be killed in prison by incarcerated affiliates of
the Ton Ton Macoutes.
While Brezilien was in custody, he was unable to speak
with his family in Haiti. When Brezilien spoke in September
2005 with his younger brother Gerald (who lives in Phoenix),
he learned that his two older brothers, Osni and Jean Lobar,
are in the Dominican Republic. The whereabouts of Brezi-
lien’s mother, sister (Jeana), and brother (Osnar) are
unknown.
First Hearing and Appeal
On August 22, 2003, Brezilien appeared before an IJ for his
initial asylum hearing. Brezilien requested a continuance to
consult with an attorney, which the IJ granted. At his next
hearing, on September 4, 2003, Brezilien appeared without
counsel, though he stated that a lawyer with whom he had
spoken told him she would be at the hearing. The IJ decided
to proceed in her absence because Brezilien was not on his list
of detainees represented by counsel. Upon questioning by the
IJ, Brezilien admitted that he was a citizen of Haiti who had
been granted asylum in 1993 and that he had been convicted
of attempted aggravated assault in 2000. On the basis of these
two admissions, the IJ found Brezilien removable as charged.
Although Brezilien had previously been granted asylum, he
reapplied for asylum, and also applied for withholding of
removal and CAT relief. On December 17, 2003, the IJ
granted Brezilien’s second application for asylum. The IJ
found that because he had admitted the factual allegations in
the Notice to Appear, Brezilien had conceded the charge of
removability, a finding he now contests. The IJ then found by
BREZILIEN v. HOLDER 5685
clear and convincing evidence that the removal charge had
been sustained. Nevertheless, the IJ noted that Brezilien had
been granted asylum in 1993, and at that time had established
a well-founded fear of persecution. The IJ determined that the
government bore the burden of showing that circumstances in
Haiti had changed so dramatically that Brezilien’s well-
founded fear was no longer valid.
The IJ found that Brezilien was a credible witness. Because
Brezilien had been in Haiti when the coup occurred and when
the Ton Ton Macoutes had stormed his house, kidnapped and
killed his father, and fired shots into the house, the IJ found
that Brezilien was entitled to the presumption of future perse-
cution upon which his previous grant of asylum had been
based. The IJ also assessed the record and found that Brezi-
lien had suffered past persecution. The IJ granted Brezilien
asylum and withholding of removal, but did not rule on the
application for CAT relief.
The government appealed, and on September 8, 2004, the
BIA reversed the IJ’s decision. Rejecting the IJ’s determina-
tion that Brezilien had suffered past persecution, the BIA
stated that its review of the record revealed no evidence that
Brezilien had ever been the intended target of harm, and that
therefore he had no objective fear of persecution. Without
reversing the IJ’s credibility finding, the BIA remanded to the
IJ to allow Brezilien to demonstrate that changed country con-
ditions qualified him for asylum, withholding of removal, and
CAT relief.
Second Hearing and Appeal
On remand, the IJ once again found Brezilien credible and
examined his testimony in light of changed country conditions
in Haiti. The IJ concluded that Brezilien had established a
well-founded fear of persecution on account of his political
opinion or imputed political opinion. In so ruling, the IJ did
not specifically consider whether it would be reasonable for
5686 BREZILIEN v. HOLDER
Brezilien to relocate within Haiti. On December 16, 2004, the
IJ again granted asylum and withholding of removal, and
again declined to rule on the application for CAT relief.
The government appealed, and on November 21, 2005, the
BIA again reversed. The BIA noted that the IJ provided no
analysis as to whether Brezilien would be identified as a Lav-
alas supporter and concluded that Brezilien had failed to dem-
onstrate that he would be recognized as such. Relying on its
determinations that Brezilien (1) had failed sufficiently to
explain how anyone would recognize him after approximately
12 years outside of Haiti, (2) had not shown that the deaths
of his brothers and aunt were tied to their political involve-
ment with the Lavalas party, and (3) did not claim that his
mother or brother had been harmed on account of their
involvement with the Lavalas party, or that Brezilien had been
threatened or harmed during his trips to Haiti since his origi-
nal grant of asylum, the BIA found that Brezilien had failed
to demonstrate a well-founded fear of persecution in Haiti.
The BIA further found that Brezilien could avoid identifica-
tion as a Lavalas supporter by living outside of Port-au-
Prince. The BIA reversed the grant of asylum and withholding
of removal and remanded to the IJ for consideration of other
forms of relief.
Third Hearing and Appeal
At his third hearing, Brezilien asked the IJ to consider his
asylum and withholding of removal claims in light of worsen-
ing conditions in Haiti. The IJ declined, noting that the BIA
had already reversed his two prior asylum rulings. On January
25, 2006, the IJ issued an oral decision granting Brezilien’s
application for CAT relief. The IJ found that criminal depor-
tees who are returned to Haiti are detained for an indetermi-
nate amount of time, and that the conditions of detention in
a Haitian prison could amount to torture.
BREZILIEN v. HOLDER 5687
Both parties appealed the IJ’s January 25, 2006 decision to
the BIA. The BIA reversed the IJ’s grant of CAT relief, find-
ing that such relief could not be based solely on prison condi-
tions in Haiti and the indefinite detention of detainees, in light
of In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) and Theagene
v. Gonzales, 411 F.3d 1107 (9th Cir. 2005). The BIA also
rejected Brezilien’s argument that he would be targeted for
torture by the authorities while detained due to his political
affiliations, as well as his argument that worsening country
conditions qualified him for asylum because, in its view,
Brezilien had failed to establish how he would be recognized
throughout the country as an Aristide supporter. The BIA
remanded to the IJ to enter a final order of removal2 that
encompassed all of the IJ’s and BIA’s decisions. The IJ
entered the order on June 30, 2006. Brezilien timely peti-
tioned for review.
II.
Jurisdiction
Our jurisdiction to review a final order of removal is gov-
erned by 8 U.S.C. § 1252 (2000); Immigration and National-
ity Act § 242, as amended by the Real ID Act of 2005, Pub.
L. No. 109-13, Div. B, § 106, 119 Stat. 231 (May 11, 2005).
With respect to asylum, withholding of removal, and CAT
claims of a petitioner who was convicted of an offense cov-
ered by § 1252(a)(2)(C), we have jurisdiction to review the
denial of an asylum application and to review the denial of
withholding of removal and CAT relief when a petitioner
raises questions of law, including mixed questions of law and
fact, or constitutional claims. Morales v. Gonzales, 478 F.3d
972, 978-80 (9th Cir. 2007). Moreover, as to “factual issues,
2
The BIA remanded the case to the IJ to issue an order of removal pur-
suant to our then-holding in Molina-Camacho v. Ashcroft, 393 F.3d 937(9th Cir. 2004), overruled by Lolong v. Gonzales, 484 F.3d 1173, 1176-78
(9th Cir. 2007) (en banc).
5688 BREZILIEN v. HOLDER
when an IJ does not rely on an alien’s conviction in denying
CAT relief and instead denies relief on the merits, none of the
jurisdiction-stripping provisions . . . apply to divest this court
of jurisdiction.” Id. at 980; see also Arteaga v. Mukasey, 511
F.3d 940, 942 n.1 (9th Cir. 2007).
Notwithstanding any limitations on judicial review over
discretionary determinations set forth in § 1252(a)(2)(B), sec-
tion 106 of the Real ID Act explicitly provides for judicial
review over constitutional claims or questions of law. See 8
U.S.C. § 1252(a)(2)(D) (as amended by Real ID Act
§ 106(a)(1)(A)(iii)); see also Fernandez-Ruiz v. Gonzales,
410 F.3d 585, 587 (9th Cir. 2005), as adopted by Fernandez-
Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir. 2006) (en
banc) (explaining that the Real ID Act restored judicial
review of constitutional questions and questions of law pre-
sented in petitions for review of final removal orders).
Accordingly, we have construed the jurisdictional grant of 8
U.S.C. § 1252(a)(2)(D) to encompass constitutional questions,
pure questions of law, and the “application of statutes or regu-
lations to undisputed facts, sometimes referred to as mixed
questions of fact and law.” Ramadan v. Gonzales, 479 F.3d
646, 650 (9th Cir. 2007) (per curiam).
The government contends that we lack jurisdiction to con-
sider Brezilien’s claims because (1) Brezilien has failed to
exhaust his administrative remedies as required by 8 U.S.C.
§ 1252(d)(1), and/or (2) there is no administrative decision to
review. See INS v. Ventura, 537 U.S. 12 (2002). We address
these arguments with respect to each of Brezilien’s claims as
appropriate.
Standard of Review
We review questions of law de novo. Chavez-Perez v. Ash-
croft, 386 F.3d 1284, 1287 (9th Cir. 2004). We review the
BIA’s factual findings for substantial evidence. Tawadrus v.
Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004).
BREZILIEN v. HOLDER 5689
Where the BIA conducts its own review of the evidence
and law rather than adopting the IJ’s decision, our “review is
limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d
953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000)). Where the BIA conducts a de
novo review, “[a]ny error committed by the IJ will be ren-
dered harmless by the Board’s application of the correct legal
standard.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).
III.
Brezilien raises six challenges to the IJ’s final order of
removal. He argues that (1) the IJ violated his due process
rights when he found Brezilien removable without first assur-
ing that Brezilien had waived his right to counsel; (2) the BIA
erred as a matter of law by refusing to grant Brezilien, as an
alien previously granted asylum, a presumption of a well-
founded fear of persecution and refusing to shift the burden
of showing changed country conditions to the government; (3)
the BIA violated 8 C.F.R. § 1003.1(d)(3)(i) by engaging in its
own factfinding and using an incorrect legal standard to
reverse the IJ’s factual findings; (4) the BIA applied an incor-
rect legal standard in its analysis of Brezilien’s asylum claim;
(5) based on the undisputed facts in the record, the BIA erred
as a matter of law in reversing the IJ’s grant of asylum; and
(6) the IJ violated Brezilien’s due process rights (as well as
8 C.F.R. § 1240.11(a)(2)) by failing to inform Brezilien of his
eligibility for a waiver of inadmissibility.
IV.
We begin with two preliminary challenges to the BIA’s rul-
ings: a due process challenge to the first IJ hearing, and a
challenge to the BIA’s failure to apply a regulatory presump-
tion of well-founded fear. Because these issues are not prop-
erly before us, we do not reach the merits of these claims. We
dismiss the first as unexhausted, and remand the second to the
5690 BREZILIEN v. HOLDER
BIA to address in the first instance. We next address Brezi-
lien’s principal argument, that the BIA engaged in improper
factfinding and exceeded its scope of review to overturn key
factual findings made by the IJ. Because we agree with Brezi-
lien as to this claim, we grant the petition and remand for fur-
ther proceedings.
Due Process
[1] Brezilien argues that the IJ violated his right to due pro-
cess at his first hearing by finding him removable without first
assuring that Brezilien had waived his right to counsel. Brezi-
lien further asserts that because it was clear that he was
attempting to assert his right to counsel, the IJ should not have
proceeded without giving Brezilien an opportunity to appear
with counsel. Because Brezilien failed to exhaust his adminis-
trative remedies as to this alleged procedural error, we lack
jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). We dismiss
the petition for review as to this claim.
[2] Brezilien also argues that the IJ violated his due process
rights by failing to inform him of his eligibility for a waiver
of inadmissibility. This claim was raised for the first time in
Brezilien’s petition for review. We lack jurisdiction to con-
sider it because Brezilien failed to exhaust his administrative
remedies. 8 U.S.C. § 1252(d)(1); Barron, 358 F.3d at 677-78.
We therefore dismiss this due process claim.
Presumption of Well-Founded Fear
[3] Brezilien next argues that the DHS regulations pertain-
ing to termination of asylum status—8 C.F.R. §§ 208.22 and
208.24(g)—apply in removal proceedings, and that, absent
termination of a prior grant of asylum, there is a rebuttable
presumption that a petitioner has a well-founded fear of future
persecution. He contends that the BIA erred in declining to
apply this presumption in his case. Although we conclude that
BREZILIEN v. HOLDER 5691
we have jurisdiction to review this claim because Brezilien
sufficiently raised it before the BIA and thus properly
exhausted his administrative remedies, see Kaganovich v.
Gonzales, 470 F.3d 894, 897 (9th Cir. 2006), the BIA never
addressed it. “[I]t goes without saying that IJs and the BIA are
not free to ignore arguments raised by a petitioner.” Sagaydak
v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). We there-
fore remand this question to the BIA to address it in the first
instance. See Ventura, 537 U.S. at 16; Lopez v. Ashcroft, 366
F.3d 799, 806 (9th Cir. 2004).
Improper Factfinding
[4] Brezilien argues that the BIA improperly conducted its
own factfinding when it reversed the IJ’s grant of asylum and
withholding of removal, in violation of 8 C.F.R.
§ 1003.1(d)(3)(i).3 The regulation provides that the BIA “will
not engage in de novo review of findings of fact determined
by an immigration judge. Facts determined by the immigra-
tion judge, including findings as to the credibility of testi-
mony, shall be reviewed only to determine whether the
findings of the immigration judge are clearly erroneous.” 8
C.F.R. § 1003.1(d)(3)(i). The regulation further states that,
except in cases where judicial notice is appropriate, the BIA
may not engage in factfinding to resolve an appeal, and must
remand to the IJ if additional factfinding is necessary. 8
C.F.R. § 1003.1(d)(3)(iv); see also In re S-H-, 23 I. & N. Dec.
462, 464 (BIA 2002) (“[T]he Board must defer to the factual
determinations of the Immigration Judge in the absence of
clear error.”).
3
Effective September 25, 2002, the Department Of Justice implemented
new rules reforming the BIA process. These rules include, inter alia, pro-
hibition against two types of factfinding previously utilized by the BIA:
(1) engaging in de novo review of facts determined by an IJ; and (2) con-
sidering new evidence first offered on appeal. These substantive limita-
tions require the BIA to address legal issues de novo, while deferring to
the factual findings of the IJ. See BIA: Procedural Reforms to Improve
Case Management, 67 Fed. Reg. 54878, 54888-91 (August 26, 2002)
5692 BREZILIEN v. HOLDER
[5] According to Brezilien, the BIA engaged in its own fac-
tfinding by finding against Brezilien as to whether (1) Brezi-
lien was an intended target of persecution during the
September 1991 attack on his home; (2) the Ton Ton Mac-
outes were responsible for killing Brezilien’s two older broth-
ers; (3) the deaths of Brezilien’s two older brothers were tied
to their work for Lavalas; (4) the murder of Brezilien’s pater-
nal aunt was tied to her political involvement with Lavalas;
(5) Brezilien could avoid identification in Haiti as an Aristide/
Lavalas supporter; and (6) Brezilien could safely relocate in
Haiti. Brezilien argues that these are factual determinations
that the BIA is not authorized to make. With regard to the first
five issues, we agree. We conclude, however, that the BIA has
not clearly resolved whether internal relocation is a legal or
factual question. Compare Matter of D-I-M-, 24 I. & N. Dec.
448, 451 (BIA 2008) (remanding the question of internal relo-
cation to the IJ so that it could properly consider the evidence
and make a factual determination) with Matter of A-S-B-, 24
I. & N. Dec. 493, 497-98 (BIA 2008) (declaring that future
predictions about what may occur when an alien is returned
to his country were legal rather than factual determinations
that the BIA was authorized to make).
[6] The government argues that Brezilien never raised a
challenge to the BIA’s application of its review standard
before the BIA itself. The record, however, does not support
this assertion. In his final brief before the BIA, Brezilien spe-
cifically addressed the BIA’s authority to reconsider sua
sponte factual and legal findings from its prior decisions. He
argued that the BIA did have such power and that it should
exercise that power in its third review of his case because the
BIA had previously issued factual and legal findings contrary
to the record, regulations, and case law. He also cited 8 C.F.R.
§ 1003.1(d)(3)(i)-(iii) in discussing the standard of review the
BIA applies to the IJ’s factual findings. These points were
“sufficient to put the BIA on notice . . . and the agency had
an opportunity to pass on this issue.” Zhang v. Ashcroft, 388
BREZILIEN v. HOLDER 5693
F.3d 713, 721 (9th Cir. 2004) (per curiam). Accordingly, we
conclude that Brezilien exhausted this claim.
[7] The government further argues that we have no author-
ity to review this claim because there is no prior agency deci-
sion resolving it in the first instance. The government is
correct that interpretation of BIA regulations is “a matter that
[is] place[d] primarily in agency hands.” Ventura, 537 U.S. at
16. However, it is clear from the text of 8 C.F.R.
§ 1003.1(d)(3)(i) that where the IJ has made a factual finding,
the BIA has very limited authority to revisit that finding. Nor
is 8 C.F.R. § 1003.1(d)(3)(iv) ambiguous as to its treatment of
the question posed here: where the IJ has not made a neces-
sary factual finding, the regulation requires the BIA to remand
the factual inquiry to the IJ rather than making its own factual
finding on the matter.
[8] The IJ found Brezilien’s testimony credible, including
his testimony about his family’s connections to Aristide and
Lavalas and Brezilien’s own political activities. The BIA
affirmed this credibility determination. The IJ never made a
factual finding as to whether Brezilien and his brothers had
been targeted for persecution based on their political ties,
whether Brezilien would be identified as an Aristide/Lavalas
supporter, and whether he could avoid being identified. Nor
did the IJ determine as a matter of law whether Brezilien
could safely relocate to the outer provinces if removed to
Haiti. Despite the absence of rulings by the IJ on these issues,
the BIA did not remand to the IJ to address them in the first
instance. The BIA also reversed the IJ’s factual findings with
regard to Brezilien’s and his family’s persecution for political
opinion, without determining whether the IJ’s findings were
clearly erroneous. Based on the plain language of the regula-
tions at issue, the BIA violated 8 C.F.R. § 1003.1(d)(3)(i)’s
prohibition against making de novo factual findings, and vio-
lated 8 C.F.R. § 1003.1(d)(3)(ii)-(iii)’s standard of review that
governs the IJ’s factual findings.
5694 BREZILIEN v. HOLDER
[9] Because the BIA’s error materially affected its deci-
sions to reverse the IJ’s second grant of asylum and withhold-
ing of removal, as well as the subsequent grant of CAT relief,
we vacate the BIA’s decision. The BIA improperly relied
upon its own factual findings to conclude that Brezilien had
not established a well-founded fear of future persecution, had
not established that it is more likely than not that he will suf-
fer persecution in Haiti, and that he could safely relocate
within Haiti to avoid persecution. The BIA’s decisions to
vacate the IJ’s second grant of asylum and withholding of
removal thus depended on the agency’s improper factual find-
ings. Similarly, the BIA relied, at least in part, on its factual
finding that Brezilien would not be recognized as an Aristide/
Lavalas supporter to overturn the IJ’s grant of CAT relief. We
thus vacate the BIA’s denial of Brezilien’s applications for
asylum, withholding of removal, and CAT relief, and remand
for further proceedings.
[10] As to whether internal relocation is a factual or legal
issue, we agree with the parties that there is tension between
Matter of D-I-M- and Matter of A-S-B-. Matter of D-I-M- sug-
gests that it is a question of fact subject to clear error review.
After Matter of A-S-B-, however, there is some question
whether Matter of D-I-M- can be read to hold clearly that
internal relocation is a question of fact, subject to clear error
review by the BIA. A fair reading of Matter of A-S-B- sug-
gests that the issue of internal relocation is ultimately a ques-
tion of law subject to de novo review by the BIA. This
uncertainty in the BIA’s case law should be resolved by the
BIA in the first instance. See Ventura, 537 U.S. at 16; Negusie
v. Holder, 129 S.Ct. 1159, 1164 (2009). We therefore remand
this issue to the BIA for further clarification, if necessary.
Because we remand this matter to the BIA, we need not
address Brezilien’s claims that the BIA used an incorrect legal
standard in its analysis of his asylum claim, and that the BIA
erred as a matter of law in reversing the IJ’s grant of asylum.
BREZILIEN v. HOLDER 5695
V.
Based on his factual findings, the IJ twice granted asylum
to Brezilien, in addition to the previous grant of asylum in
1993 by an asylum officer. The IJ also granted withholding of
removal and CAT relief. These favorable rulings were based
on the substantial record evidence that it was more likely than
not that Brezilien would be persecuted if he were deported to
Haiti. The BIA improperly found additional facts not in the
record, and used these facts to support its decision to overturn
the IJ’s grant of asylum, withholding of removal, and CAT
relief.
We remand to the BIA to decide the case on the basis of
the IJ’s factual findings, or, in the alternative, to remand to the
IJ with instructions to conduct additional factfinding relating
to Brezilien’s claims for relief as appropriate. We also remand
to the BIA to address in the first instance, if necessary,
whether 8 C.F.R. §§ 208.22 and 208.24(g) apply in removal
proceedings, and whether internal relocation is a question of
fact subject to clear error review or a question of law subject
to de novo review. Accordingly, Brezilien’s petition is DIS-
MISSED in part, GRANTED in part, and REMANDED for
further proceedings consistent with this opinion.