Elizalde v. Garland

1

YOSVANY ALONSO ELIZALDE, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

YOSVANY ALONSO ELIZALDE, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

Nos. 20-72079, 22-524

United States Court of Appeals, Ninth Circuit

April 28, 2023

NOT FOR PUBLICATION

Argued and Submitted March 29, 2023 Moscow, Idaho

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A213-352-781

Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.

MEMORANDUM ^[*]

Yosvany Alonso Elizalde, a native and citizen of Cuba, petitions for review of two orders of removal by the Board of Immigration Appeals (BIA) affirming an Immigration Judge's (IJ) denial of his application for asylum under the Immigration and Nationality Act.^[1]

1. The IJ held that Elizalde failed to meet the standard for asylum and that the Third Country Transit Rule separately barred his asylum application. In June 2020, the BIA affirmed without opinion. While Elizalde's petition for review of the BIA's decision was pending before us in October 2021, the BIA sua sponte reopened and vacated its June 2020 decision because the Third Country Transit Rule had been enjoined by a federal district court. The BIA issued a new decision affirming the IJ "for the reasons stated in the [IJ's] decision" and expressly disclaimed reliance on the Third Country Transit Rule.

We determine our own jurisdiction de novo. Saavedra-Figueroa v. Holder, 625 F.3d 621, 623 (9th Cir. 2010). Elizalde contends that we retain jurisdiction over the BIA's June 2020 decision. We disagree. "Once a petition for review has been filed, federal court jurisdiction is divested where the BIA subsequently vacates . . . the decision under review." Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc); accord Saavedra-Figueroa, 625 F.3d at 624. The BIA vacated its June 2020 decision, so we dismiss the portion of Elizalde's petition challenging that decision for lack of jurisdiction.

2. Elizalde also claims that the IJ did not fulfill his duty to develop the record for a pro se asylum applicant. See Agyeman v. INS, 296 F.3d 871, 876-77 (9th Cir. 2002). We review such challenges de novo, Olea-Serefina v. Garland, 34 F.4th 856, 866 (9th Cir. 2022), but lack jurisdiction if the challenge was not raised before the BIA, Agyeman, 296 F.3d at 877. Though pro se litigants are held to a lower standard and need not use "the correct legalese," they still must "put the BIA on notice of the contested issues." Gonzalez-Castillo v. Garland, 47 F.4th 971, 980 (9th Cir. 2022) (citation omitted). Elizalde's statements that he "wasn't able to provide enough evidence in time on [his] court" appearance before the IJ, that his "last hope is with [his] testimony," and his request to "hear [his] story" did not put the BIA on notice that Elizalde believed he was denied a full and fair hearing. Thus, his claim is unexhausted, and we lack jurisdiction to consider it. See id. at 980-81.

3. Last, Elizalde argues that the BIA erred by denying his asylum claim. We review the BIA's denial of asylum for substantial evidence and reverse only if "the evidence not only supports a contrary conclusion, but compels it." Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration adopted) (citation omitted). Where, as here, the BIA relies in part on the IJ's reasoning, we review both decisions. Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014). A person may qualify for asylum "either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution." 8 C.F.R. § 208.13(b).

The IJ held that the harm Elizalde experienced did not rise to the level of past persecution and the BIA affirmed. This conclusion is supported by substantial evidence. See Sharma v. Garland, 9 F.4th 1052, 1063 (9th Cir. 2021). The record does not compel the conclusion that Elizalde's two separate encounters with the police (involving temporary detention, minor physical mistreatment, and the shutdown of his workplace) amounted to persecution. See id. at 1064 (no past persecution where the police "ruined" the petitioner's business); Gu v. Gonzales, 454 F.3d 1014, 1017-21 (9th Cir. 2006) (no past persecution where the petitioner was detained at a police station by authorities for three days, interrogated for two hours, and repeatedly hit with a rod but required no medical treatment).

Elizalde maintains that the IJ ignored the cumulative impact of his past harm, an issue we review de novo. Salguero Sosa v. Garland, 55 F.4th 1213, 1219 (9th Cir. 2022). The record belies Elizalde's assertion. The IJ recounted the key portions of Elizalde's testimony and held that "accepting all the respondent's testimony as true, the Court must deny his application." The IJ's decision sufficiently demonstrates that he considered the cumulative effect of Elizalde's past harm.

Elizalde also argues that the IJ failed to analyze whether he had a well-founded fear of future persecution. But the IJ's decision sufficiently demonstrates that he did address future persecution. The IJ was not required "to write an exegesis on every contention." See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (citation omitted). "What is required is merely that [the IJ] consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Id.

Here, the IJ began his analysis by stating that "the respondent would have to prove that he has a past persecution or that he has a reasonable possibility of future persecution" and concluded that "he has not shown that he meets the legal test for asylum." Then, after addressing Elizalde's past harm, the IJ denied withholding of removal and CAT relief because Elizalde had not shown future persecution or torture. The IJ concluded, "Having not met the factual or legal burden for asylum . . . the respondent would necessarily fail the higher burden for withholding ...."

The higher burden for withholding refers to the likelihood of future persecution. Withholding of removal requires that future persecution be "more likely than not," while asylum requires only a "reasonable possibility" of future persecution. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019) (citations omitted). Thus, the IJ's holding that Elizalde did not meet his burden for asylum and therefore failed to meet the higher burden for withholding necessarily implies that the IJ concluded that Elizalde did not show a reasonable possibility of future persecution under the asylum standard. The IJ's decision sufficiently demonstrated that he considered the issue and concluded that Elizalde had not shown a reasonable possibility of future persecution. ^[2] See id.; Najmabadi, 597 F.3d at 990.

The IJ's conclusion is supported by substantial evidence. Elizalde's testimony that he would be monitored and that he would be imprisoned if he could not find work within 30 days of returning to Cuba does not compel us to reach a conclusion contrary to the agency's. See Sharma, 9 F.4th at 1062-63 ("[M]ere economic disadvantage alone does not rise to the level of persecution." (citations omitted)); id. at 1065-66 (characterizing the possibility that the police would have a continuing interest in the petitioner as "speculative").^[3] PETITION DENIED in part and DISMISSED in part.

Forrest, J., concurring in part and dissenting in part:

I agree that we lack jurisdiction over Case No. 20-72079. I respectfully disagree, however, that the Board of Immigration Appeals (BIA) properly addressed Petitioner Yosvany Alonso Elizalde's argument that he is entitled to asylum because he has a well-founded fear of future persecution if removed to Cuba. Therefore, I would grant the petition in Case No. 22-524 in part and remand Elizalde's asylum claim to the BIA.

It is well-established that "where the BIA has not made a finding on an essential asylum issue, the proper course of action for a court of appeals is to remand the issue to the BIA for decision." Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir. 2004). Because a well-founded fear of future persecution provides a "separate avenue[]" for asylum relief, Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir. 1996), we have stressed that "the likelihood of future persecution is a particularly important factor to consider" when "determining whether to grant asylum," Kalubi v. Ashcroft, 364 F.3d 1134, 1141 (9th Cir. 2004) (emphasis added) (citation omitted). And we have consistently remanded cases where the immigration judge (IJ) or BIA failed to address whether a petitioner had a well-founded fear of future persecution. See, e.g., Regalado-Escobar v. Holder, 717 F.3d 724, 729 (9th Cir. 2013) (remanding for the BIA to determine whether petitioner established a well-founded fear of future persecution where the BIA "rejected this [argument] without explanation"); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir. 2003) (remanding for the BIA to "determine in the first instance whether [petitioner] has shown a well-founded fear of persecution"); Chen, 362 F.3d at 621-22 (similar).

The court is correct that the agency need not "write an exegesis" before we will consider a claim to have been addressed. Mem. Disp. at 5. But the BIA must "state its reasons and show proper consideration of all factors when weighing equities and denying relief." Kalubi 364 F.3d at 1140 (citation omitted). "This means that the BIA must explain what factors it has considered or relied upon sufficiently that we are able to discern that it has heard, considered, and decided"...