Jalel Ben Nsira v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JALEL BEN NSIRA, No. 18-71637
19-70182
Petitioner,
Agency No. A077-126-917
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 2, 2021**
Pasadena, California
Before: GOULD, LEE, and VANDYKE, Circuit Judges.
Jalel Ben Nsira, a native and citizen of Tunisia, seeks review of the Board of
Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) denial
of asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). He also challenges the discretionary denials of his application for
*
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).
waiver of removal under 8 U.S.C. § 1227(a)(1)(H), motion to remand for
consideration of additional evidence, and motion to reconsider. We have jurisdiction
under 8 U.S.C. § 1252, and we grant in part, dismiss in part, and deny in part.
We “review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016)
(citation omitted). “Our review is limited to those grounds explicitly relied upon”
by the BIA. Id. Factual findings are reviewed “under the ‘extremely deferential’
substantial-evidence standard, under which we treat such findings as ‘conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.’”
Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (citation omitted).
Legal conclusions are reviewed de novo. Budiono, 837 F.3d at 1046. As the parties
are familiar with the facts, we do not recount them here.
1. Nsira challenges the BIA’s determination that he is not eligible for asylum
and withholding of removal based on his membership in the particular social group
of “Tunisians who are married to United States citizens whose families are
Christian.” The IJ rejected such claim below on the basis that the proposed group
lacked particularity and social distinction. The BIA, however, incorrectly
characterized the IJ’s decision as concluding that Nsira “does not face an objectively
reasonable risk of persecution based on his marriage to a foreign woman of a
different faith.” It then erroneously determined that Nsira had failed to challenge
2
this finding — which the IJ never made in the context of his particular social group
claim — and that thus he waived the claim. But in his brief to the BIA, Nsira did
challenge the IJ’s findings about the particularity and social distinction of his
proposed group, and he challenged the IJ’s conclusion that Nsira did not face a
reasonable possibility of persecution in the context of his very similar marriage-
based religious persecution claim. He thus did not waive this particular social group
claim; the BIA’s contrary conclusion was error, so we grant the petition for review
on this ground and remand to the BIA. See Mendez-Gutierrez v. Ashcroft, 340 F.3d
865, 870 (9th Cir. 2003).
2. Substantial evidence supports the denial of asylum and withholding of
removal for Nsira’s other claims. To qualify for such relief based on fear of future
persecution, an applicant must show that there is a “‘reasonable possibility’ that he
will be ‘singled out individually for persecution’ if removed,” or “a systematic
‘pattern or practice’ of persecution against the group to which he belongs in his home
country.” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009) (quoting 8 C.F.R.
§ 1208.13(b)(2)(iii)).
The record does not compel the conclusion that Nsira has a well-founded fear
of persecution based on religion. First, he claims that he will be targeted by Islamic
fundamentalists due to his religious practices. But country conditions evidence
shows that the Tunisian government is controlled by moderate leaders and has taken
3
steps to promote religious tolerance. Although there was some conflicting evidence
in the record, the IJ considered the record holistically and permissibly concluded that
Nsira’s fear was not objectively reasonable. See Vatyan v. Mukasey, 508 F.3d 1179,
1185 n.4 (9th Cir. 2007). Second, Nsira claims that he fears persecution due to his
marriage to a Christian woman. But the evidence he relies on does not address his
specific situation or demonstrate that he faces an individualized risk of harm. See
Sinha v. Holder, 564 F.3d 1015, 1025 (9th Cir. 2009).
The record also does not compel the conclusion that Nsira has a reasonable
fear of harm based on his political opinions. There is no evidence that he has
publicly engaged in political activity or that he plans to do so in the future. Rather,
he keeps his views to himself. See Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th Cir.
2007); Matter of E-P-, 21 I. & N. Dec. 860, 862 (BIA 1997). Though the country
conditions evidence shows instances of political persecution in Tunisia generally, it
does not establish that Nsira will suffer harm based on his privately held beliefs.
Finally, substantial evidence supports the BIA’s conclusion that Nsira does
not have a reasonable fear of persecution based on membership in the particular
social group of sexual minorities. Nsira asserts that his support for gay rights will
cause others to perceive him as gay. But there is no evidence that he has ever
publicly expressed support for gay rights. The record thus does not compel the
conclusion that he will be viewed as gay and persecuted on that ground.
4
Given that Nsira has not demonstrated his eligibility for asylum, he cannot
meet the higher burden of proof required for withholding of removal. See Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). We thus deny Nsira’s petition as
to his claims for asylum and withholding of removal based on the above grounds.
3. Substantial evidence supports the denial of CAT relief. To qualify for CAT
relief, an applicant “must prove that it is ‘more likely than not that he or she would
be tortured if removed to the proposed country.’” Barajas-Romero v. Lynch, 846
F.3d 351, 361 (9th Cir. 2017) (citation omitted). This inquiry “is based entirely on
an objective basis of fear.” Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010).
Nsira argues that he is eligible for CAT relief on the same grounds as he
asserted for asylum and withholding of removal. But he fails to “show that it is
‘more likely than not’ that a government official or person acting in an official
capacity would torture him or aid or acquiesce in his torture by others.” Wakkary,
558 F.3d at 1067–68 (citation omitted). Instead, he presents only generalized
evidence of certain groups — such as gay men — being tortured, without any
particularized showing that he himself is at risk. See Delgado-Ortiz v. Holder, 600
F.3d 1148, 1152 (9th Cir. 2010) (explaining that a particularized risk of torture is
required for CAT relief). For these reasons, we deny Nsira’s petition as to his CAT
claims.
4. We lack jurisdiction to review the BIA’s decision affirming the denial of a
5
waiver of removal under 8 U.S.C. § 1227(a)(1)(H). See San Pedro v. Ashcroft, 395
F.3d 1156, 1157–58 (9th Cir. 2005). But we can review Nsira’s claims that the BIA
applied the wrong standard of review and that the IJ relied on an improper inference
in denying the waiver, as they are questions of law. See 8 U.S.C. § 1252(a)(2)(D).
The BIA applied the clear error standard when reviewing the IJ’s
determination that Nsira testified evasively and tried to minimize his responsibility
for his actions. This was the proper standard to review the IJ’s factual findings. See
8 C.F.R. § 1003.1(d)(3)(i). And the IJ’s findings were not based on improper
inferences, as she relied on her firsthand observation of Nsira’s testimony. She also
provided specific reasons, grounded in the record, for her assessment, satisfying the
substantial evidence standard that applies to our review of factual findings. See
Velasquez-Gaspar, 976 F.3d at 1064.
Absent any legal errors, we likewise cannot review the discretionary denial of
Nsira’s motion to remand to present additional evidence bearing on the discretionary
waiver analysis. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir. 2006)
(“Section 1252(a)(2)(B)(i) … bars jurisdiction where the question presented is
essentially the same discretionary issue originally decided.”). We therefore dismiss
Nsira’s petition as to these claims.
5. The BIA did not abuse its discretion in denying Nsira’s motion to
reconsider, as it was time-barred, and there was no deception, fraud, or error to
6
warrant equitable tolling. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
Nsira argues that under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the IJ lacked
jurisdiction over his case because his Notice to Appear lacked a time and place. But
we have rejected this argument and held that Pereira is “not in any way concerned
with the Immigration Court’s jurisdiction.” Karingithi v. Whitaker, 913 F.3d 1158,
1159 (9th Cir. 2019). There was thus no legal error in the BIA’s denial of Nsira’s
motion, and we deny his petition on this basis.
GRANTED IN PART, DENIED IN PART, AND DISMISSED IN PART.
7