Soares v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HUMBERTO SOARES, No. 21-652
Agency No.
Petitioner, A099-825-178
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2023 **
Seattle, Washington
Before: HAWKINS, BEA, and BRESS, Circuit Judges.
Petitioner Jose Soares, a native and citizen of Brazil, petitions for review
of an order of the Board of Immigration Appeals (“BIA”), which dismissed his
appeal from an order of an immigration judge (“IJ”), who denied Petitioner’s
claim to asylum, withholding of removal, and protection under the Convention
*
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).
Against Torture.1 The parties are familiar with the facts and procedural history,
so we do not repeat them here. For the reasons stated below, we deny the petition.
1. Petitioner is not entitled to asylum because his application was filed after
the deadline to do so. See 8 U.S.C. § 1158(a)(2)(B). Petitioner claims two
changed circumstances occurred which ought to excuse his late filing, but neither
is sufficient.
a. First, Petitioner claims that a Brazilian police attack on his brother
and sister-in-law, subsequent threatening phone calls in Brazil beginning in
January 2006, and the death of Petitioner’s other brother in 2007 led Petitioner to
fear harm upon his return to Brazil. The IJ held that the attacks on Petitioner’s
family were not related to Petitioner’s “whistleblowing” conduct or any other fear
of persecution or torture. We have no jurisdiction to review that factual finding
because Congress has stripped this court’s jurisdiction over factual
determinations which support the IJ’s changed circumstances analysis.
Gasparyan v. Holder, 707 F.3d 1130, 1133–34 (9th Cir. 2013). 2 Because the
attacks were not on Petitioner and because the IJ held that they do not represent
1
Petitioner also applied for voluntary departure, but that claim was abandoned
before the BIA.
2
Petitioner argues that the BIA made impermissible factual findings on appeal.
However, Petitioner does not indicate any facts used in the BIA’s decision which
did not appear in the IJ’s decision. Instead, Petitioner’s argument appears to be
that the BIA utilized the factual findings of the IJ to support different legal
conclusions. That is not impermissible factfinding. Cf. Brezilien v. Holder, 569
F.3d 403, 413 (9th Cir. 2009).
2
a risk of harm to Petitioner, they are not material to Petitioner’s eligibility for
asylum and therefore cannot excuse Petitioner’s late filing. See 8 U.S.C. § 1158(a)(2)(D).
b. Second, Petitioner claims that he became aware in 2006 that the
Brazilian government was actively seeking him out. The Brazilian government’s
interest in arresting Petitioner is not a sufficient changed circumstance. The IJ
found that there “is sufficient probable cause that [Petitioner] committed the
offense contained in the [Brazilian] indictment,” and the IJ found that Brazilian
officials would not persecute or disproportionately punish Petitioner for his
crimes. The crime was not a political crime. Because there is no connection
between the criminal proceedings in Brazil and any threat of persecution or
torture, 3 the mere fact that Brazilian officials expressed a renewed interest in
arresting Petitioner is not material to the asylum decision.
2. Petitioner claims that his Due Process Clause rights were violated during
the course of the agency proceedings because he was misled into believing that
the BIA remand would focus solely on factual issues regarding his eligibility for
asylum and that he was surprised to find that the second IJ held that his
application for asylum was not excused by changed circumstances.
3
Granted, Petitioner believes that there is a connection between the criminal
prosecution and a threat of persecution or torture. However, Petitioner’s belief
in the materiality of the changed circumstances is not dispositive. And
Petitioner’s belief contradicts the IJ’s factual findings, which the panel has no
jurisdiction to review when assessing changed circumstances.
3
Even had the IJ misled Petitioner as to the scope of the live issues on
remand, Petitioner does not make any proffer of evidence of prejudice beyond the
vague assertion that he could have presented “testimony and evidence” on the
changed circumstances exception had he known that the issue was live on
remand. Petitioner does not explain what the content of that testimony or
evidence would have been.
It is the alien’s burden to either “demonstrate[] by clear and convincing
evidence that the application has been filed within 1 year after the date of the
alien’s arrival in the United States” or “demonstrate[] to the satisfaction of the
Attorney General either the existence of changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application.” 8 U.S.C. § 1158(a)(2).
The issue was raised and litigated before the first IJ. Petitioner received a
full and fair opportunity to introduce evidence of changed circumstances.
Petitioner did introduce evidence of changed circumstances which was accepted
by the first IJ, but then rejected by the second IJ and then by the BIA. Petitioner
has not proffered any additional evidence that he would have presented on
remand. Thus, even if the IJ did mislead Petitioner as to the scope of remand,
Petitioner has not demonstrated any prejudice arising from that error. We
therefore deny Petitioner’s claim to relief under the Due Process Clause.
3. Petitioner’s claims to withholding of removal and CAT protection have not
been mooted by his removal. See Del Cid Marroquin v. Lynch, 823 F.3d 933,
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935–36 (9th Cir. 2016). Nonetheless, we deny them on the merits. Petitioner’s
claim to withholding of removal fails because substantial evidence supports the
BIA’s conclusion that there are serious reasons to believe Petitioner committed a
serious non-political crime in Brazil, which renders him statutorily ineligible for
withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(iii); Guan v. Barr, 925
F.3d 1022, 1026 (9th Cir. 2019). Petitioner’s claim to CAT protection is meritless
because substantial evidence supports the agency’s conclusion that Soares failed
to prove that he faces a likelihood of future torture or that the Brazilian
government would consent or acquiesce to the torture. See B.R. v. Garland, 4
F.4th 783, 800 (9th Cir. 2021) (assertions of police corruption and ineffectiveness
are insufficient to establish that a public official would more likely than not
acquiesce to torture).
4. Because Petitioner has been removed to Brazil, we deny Petitioner’s
motion to stay removal (Dkt. No. 3) as moot.
PETITION DENIED.
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