Junior Exaveau v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUNIOR EXAVEAU, No. 17-72470
Petitioner, Agency No. A209-869-312
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 16, 2020**
Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.
Junior Exaveau, a native and citizen of Haiti, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant in part, deny in
*
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).
part, dismiss in part, and remand for further proceedings.
Our review is limited to those grounds the BIA relied on in rendering its
decision. Santiago–Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011); cf.
Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (explaining that we “cannot
affirm the BIA on a ground upon which it did not rely” (internal quotation marks
omitted)). Our review is limited to the BIA’s decision except to the extent that it
adopted the IJ's decision. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 n.3 (9th Cir.
2004). We must uphold the agency’s factual findings “‘if supported by reasonable,
substantial, and probative evidence on the record considered as a whole,’ and we
will reverse only if a reasonable fact-finder would have been compelled to reach a
different conclusion.” Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en
banc) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992)).
Exaveau challenges the finding that he firmly resettled in Brazil before
entering the United States and the BIA’s denial of his asylum claim based on this
threshold determination. See 8 U.S.C. § 1158(b)(2)(A)(vi) (codifying mandatory
firm-resettlement bar). We agree with Exaveau that substantial evidence does not
support the finding of firm resettlement. Only an offer of permanent, not
temporary, residence supports a finding of firm resettlement. Ali v. Ashcroft, 394
F.3d 780, 789–90 (9th Cir. 2005). Exaveau repeatedly testified and claimed in his
asylum application that he obtained temporary residence in Brazil lasting ten years.
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We therefore grant Exaveau’s petition insofar as it challenges the BIA’s finding of
firm resettlement. We remand for the BIA to consider the merits of Exaveau’s
asylum claim.
Exaveau also challenges the finding that the Haitian government is willing
and able to control the alleged agent of Exaveau’s persecution—a gang—and the
BIA’s denial of his withholding-of-removal claim based on that finding. See
Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010) (applying three-part test for
withholding-of-removal and asylum claims, which requires establishing
(1) persecution, (2) based on a statutorily protected ground, (3) committed by the
government or forces the government is unwilling or unable to control), overruled
in part on other grounds by Bringas–Rodriguez v. Sessions, 850 F.3d 1051 (9th
Cir. 2017). Substantial evidence supports the BIA’s finding: The Haitian police
appear to have arrested seven members of the gang that allegedly attacked
Exaveau, intervened after the gang harassed Exaveau at work, and provided
Exaveau with a copy of a police report and told him to come back to the station for
follow-up. None of the evidence Exaveau relies on—including that the gang
harassed him and may have killed his brother even after the police investigated the
attack on Exaveau—taken in the broader context of the police response compels a
reasonable factfinder to reach a different conclusion. We therefore deny Exaveau’s
petition to the extent it seeks review of the BIA’s denial of withholding of removal.
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We do not review Exaveau’s CAT claim, because he did not appeal the IJ’s
denial of it to either the BIA or to us. See Abebe v. Mukasey, 554 F.3d 1203, 1208
(9th Cir. 2009). And we dismiss Exaveau’s due process claim because he also
failed to exhaust administrative remedies by neglecting to raise it with the BIA,
thereby again depriving us of jurisdiction to consider it. See Agyeman v. INS, 296
F.3d 871, 877 (9th Cir. 2002) (“[W]e may not entertain due process claims based
on correctable procedural errors unless the alien raised them below.”).
GRANTED in part, DENIED in part, DISMISSED in part, and
REMANDED.
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