Ibrahima Sylla v. Eric Holder, Jr. , 460 F. App'x 696 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
IBRAHIMA SYLLA, No. 10-71175
Petitioner, Agency No. A029-839-828
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2011 **
Portland, Oregon
Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.
Ibrahima Sylla petitions for review of the Board of Immigration Appeals’
dismissal of his appeal from an order of removal. We deny the petition for review.
To prevail on a due process claim, Sylla must demonstrate that the
administrative proceeding was “so fundamentally unfair that [he] was prevented
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
from reasonably presenting his case” and that the alleged violation prejudiced his
case. Colemenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (quoting Platero-
Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)). Prejudice occurs when “the
outcome of the proceeding may have been affected by the alleged violation.”
Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003).
In the September 15, 2008 order, the Immigration Judge referenced Sylla’s
“pattern of non-cooperation” and “pattern of delay for the sake of delay” as well as
Sylla’s “lack of candor” in alleging a false marriage on his original visa
application. The IJ’s expressions of exasperation did not rise to the level of bias.
In Liteky v. United States, 510 U.S. 540, 555–56 (1994), the Supreme Court
explained that “expressions of impatience, dissatisfaction, annoyance, and even
anger” cannot independently establish bias.
Furthermore, Sylla does not argue that the IJ’s alleged bias affected the
outcome of his case and we cannot “manufacture arguments for [him].” Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting
Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)). Because
Sylla did not establish that he was prejudiced by the actions of the IJ, including the
rescheduling of the hearing, his due process argument fails.
2
To qualify for cancellation of removal under § 240A(b)(2)(A) of the
Immigration and Nationality Act, Sylla must prove that he was battered or
subjected to “extreme cruelty” by a spouse or parent. In Hernandez v. Ashcroft,
345 F.3d 824, 839 (9th Cir. 2003), we held that “extreme cruelty” encompasses the
“nonphysical aspects of domestic violence.” The BIA did not err in noting Sylla’s
gender, size, and strength because those attributes were relevant to any claim that
Sylla was a victim of physical abuse. Although the IJ and the BIA highlighted
these attributes, they additionally considered Sylla's claim that he was the victim of
nonphysical spousal abuse. The agency rejected this claim on the merits, and the
conclusion was supported by substantial evidence. “[E]very insult or unhealthy
interaction in a relationship does not rise to the level of domestic violence.” Id. at
840. Although a large, strong man can be the victim of “extreme cruelty,” the
abuse that Sylla alleged did not rise to that level.
PETITION DENIED.
3