Elhadji Seye v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 2, 2019
• Docket: 18-3651
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0169n.06

Case No. 18-3651

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 02, 2019 DEBORAH S. HUNT, Clerk ELHADI MANASSIR SEYE, ) ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) )

BEFORE: BATCHELDER, McKEAGUE, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. After the Department of Homeland Security began

removal proceedings against Elhadji Manassir Seye, he sought asylum, withholding of removal,

and protection under the Convention Against Torture. An immigration judge denied him relief and

the Board of Immigration Appeals affirmed. For the following reasons, we DENY his petition for

review.

I.

Seye is a native and citizen of Senegal. For most of his life he was a member of an Islamic

sect called the Morite Brotherhood, like the rest of his family. At some point, he began to support

a competing Islamic sect called the Tijane Brotherhood. His family tried to convince him to return

to the Morite Brotherhood but failed.

What his family could not accomplish with words they later tried to accomplish with sticks

and fists: Seven members of Seye’s family beat him at his uncle’s home and demanded that he Elhadi M. Seye v. William P. Barr, No. 18-3651

return to the Morite Brotherhood. The beating lasted about an hour and only stopped when he

agreed to return. As a result, Seye was left bruised and cut. But before leaving the house, Seye

recanted his support for the Morite Brotherhood. He then ran from the home and took a taxi to

Dakar.

In Dakar, Seye lived with a friend for one month until his friend told him that he could not

stay with him forever. Around this time, he encountered a man from Mbour who told him that his

family was still looking for him and would try to kill him if they found him. He never reported this

or his beating to the Senegalese police. Instead, he decided to leave Senegal and eventually found

his way to the United States.

The Department of Homeland Security (“DHS”) detained Seye when he arrived. Seye later

expressed a fear of retuning to Senegal and an asylum officer determined he had a credible fear of

persecution. DHS then placed Seye in removal proceedings and, proceeding pro se, he sought

asylum, statutory withholding of removal, and protection under the Convention Against Torture.

An immigration judge (“IJ”) denied Seye’s application for relief and the Board of Immigration

Appeals (“BIA”) affirmed. Seye now challenges the denial of his asylum and withholding of

removal claims.

II.

To be eligible for asylum, Seye must show that he is “unable or unwilling to return” to

Senegal “because of persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(A). If Seye cannot establish his eligibility for asylum, he

necessarily fails to establish his eligibility for withholding of removal too. See Singh v. Ashcroft,

398 F.3d 396, 401 (6th Cir. 2005). Here, the BIA issued its own decision agreeing with and

2 Elhadi M. Seye v. William P. Barr, No. 18-3651

affirming portions of the IJ’s decision. So we review both the BIA’s decision and those parts of

the IJ’s decision relied on by the BIA. See Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir. 2005).

We review legal conclusions de novo and factual findings for substantial evidence. Zhao v. Holder,

569 F.3d 238, 246 (6th Cir. 2009). Under the substantial evidence standard, we “may not reverse

the Board’s determination simply because we would have decided the matter differently.” Id. at

247 (quoting Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008)). The BIA’s findings of fact

are conclusive unless “any reasonable adjudicator would be compelled to conclude to the

contrary.” Zhaou, 569 F.3d at 247 (quoting 8 U.S.C. § 1252(b)(4)(B)).

III.

Seye begins his challenge by arguing that the IJ erred in two related ways: First, by

requiring him to corroborate certain aspects of his oral testimony. And second, by failing to analyze

whether that evidence was reasonably obtainable. Accordingly, Seye’s argument is based on the

premise that the IJ denied him relief because he failed to corroborate his testimony. But that

premise is mistaken.

To be sure, the IJ found “that there were elements of his claim that seem[ed] rather

implausible” so that “some corroborative evidence [was] in order.” [A.R. 47–48.] That said, in the

next section of its decision—aptly titled, “Corroboration”—the IJ noted “several exhibits” that

Seye submitted “[i]n support of his application.” [Id. at 48.] And it found “that [Seye] ha[d]

submitted evidence to corroborate some aspects of his claim.” [Id.]

The reason the IJ denied Seye relief is that he failed to “demonstrate that [he] was

persecuted on account of his religion.” [Id. at 49.] In other words, the IJ found that Seye had failed

to meet his burden of proof even though he corroborated parts of his claim. Seye’s remaining

evidentiary arguments are, at bottom, challenges to that factual finding.

3 Elhadi M. Seye v. William P. Barr, No. 18-3651

“When an asylum claim focuses on non-governmental conduct, its fate depends on some

showing either that the alleged persecutors are aligned with the government or that the government

is unwilling or unable to control them.” Abdramane v. Holder, 569 F. App’x 430, 437 (6th Cir.

2014) (citing Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009)). Seye failed to make that

showing here. As mentioned, Seye never reported his family’s attack to the Senagalese authorities.

And we have repeatedly held that a petitioner fails to meet his burden when his asylum claim arises

from non-governmental conduct and he has not sought the government’s protection. See, e.g., id.

at 437; El Ghorbi v. Mukasey, 281 F. App’x 514, 517 (6th Cir. 2008); Ralios Morente v. Holder,

401 F. App’x. 17, 24 (6th Cir. 2004).

Seye argues, however, that he was entitled to relief because he “credibly testified” that the

Senegalese police would not have helped him even if he had sought their protection. Although the

IJ found that Seye “was overall a credible witness,” [A.R. 47] he cites nothing to support his

assertion that the IJ had to accept everything he said as true. On the contrary, in both El Ghorbi

and Ralios Morente, we held that the petitioner failed to meet his burden even though the BIA and

IJ, respectively, had found the petitioners to be “credible.” See El Ghorbi, 281 F. App’x at 515;

Ralios Morente v. Holder, 401 F. App’x at 20.

Seye also cites State Department country reports, which detail evidence of corruption in

the Senegalese government, to support his claim that the police would not have helped him. But

these same country reports also show that Senegal’s justice system is capable of arresting,

prosecuting, and convicting criminals. And the reports show that Senegal allows its citizens to

freely associate and practice their religious beliefs “provided public order is maintained.”

[A.R. 234.] See also Perez-Aguilon v. Lynch, 674 F. App’x 457, 463 (6th Cir. 2016) (holding that

4 Elhadi M. Seye v. William P. Barr, No. 18-3651

an asylum applicant had failed to meet his burden where “his only evidence of [] corruption [came]

from the country-condition reports he submitted”).

We find that a reasonable adjudicator would not be compelled to evaluate the facts

differently. Based on those facts, Seye has not met his burden of establishing his eligibility for

asylum. We therefore hold that the IJ’s and BIA’s decisions denying Seye asylum and withholding

of removal were supported by substantial evidence.

Seye also makes several procedural arguments, including that the IJ violated the

Immigration and Nationality Act, the Administrative Procedure Act, and due process by

supposedly failing to develop the administrative record. But Seye did not properly preserve these

claims for our review.

We “may review a final order for removal ‘only if the alien has exhausted all administrative

remedies available to the alien as a matter of right.’” Tomaszczuk v. Whitaker, 909 F.3d 159, 167

(6th Cir. 2018) (quoting 8 U.S.C. § 1252(d)). “Accordingly, this Court may review only those

claims ‘properly presented to the BIA and considered on their merits.’” Id. (quoting Ramani v.

Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)). Seye “failed to satisfy the exhaustion requirement in

this case because these claims were not included in either [his] notice of appeal to the BIA or his

supporting brief.” Id. We therefore lack jurisdiction to review these claims. Id.

Seye urges us to disregard our published precedents setting forth this exhaustion

requirement because he thinks 8 U.S.C. § 1252(a)(2)(D), as evidenced by its legislative history,

provides us jurisdiction to review these claims. That, of course, ignores the fact that we are

powerless to overrule the published decisions of a prior panel “unless an inconsistent decision of

the United States Supreme Court requires modification of the decision or this Court sitting en banc

5 Elhadi M. Seye v. William P. Barr, No. 18-3651

overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th

Cir. 1985).

Even so, Seye argues that the better reading of our cases is to view the exhaustion

requirement as a “case processing tool” rather than as a jurisdictional bar to our review. He asserts

that in several of those cases, we “ruled on the ‘due process’ issue” even though we were

jurisdictionally barred. See, e.g., Viluda de Mejia v. Sessions, 691 F. App’x 245, 250 (6th Cir.

2017) (holding that the petitioner’s claim would fail on the merits “even if it were before the

court”). But simply because we have sometimes explained in dicta why a petitioner’s unexhausted

claims would also fail on the merits does not mean we may grant relief on such claims.

Finally, Seye cites Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006), for the

proposition that “[g]enuine due process claims do not require exhaustion of administrative

remedies.” [Seye Reply Br. at 27.] While, in Sterkaj, we said that “an alien’s due process challenge

generally does not require exhaustion,” we also said that “the alien must raise correctable

procedural errors to the BIA.” Sterkaj, 439 F.3d at 279 (citing Ramani, 378 F.3d at 559 and 8

U.S.C. § 1252(d)(1)). We then held that we were precluded from reviewing the petitioner’s due

process claim because he had “failed to exhaust [his] administrative remedies.” Id.

Similarly, even if we assume that the IJ had failed to adequately develop the record here,

this was correctable procedural error that Seye could have raised with the BIA. See In Re:

Fernando Saenz-Ledesma, 2014 WL 3795544, at *1 (B.I.A. June 13, 2014) (remanding to the IJ

to develop the record); In Re: Babak Moslemnejad Tork, 2007 WL 927137, at *2 (B.I.A. Feb. 27,

2007) (same). So Seye cannot circumvent our exhaustion requirements.1

1 Our recent decision in Mendoza-Garcia v. Barr, No. 18-3513, 2019 WL 1143956 (6th Cir. Mar. 13, 2019) (published) is not to the contrary. There, we held that due process requires IJs to “help pro se parties develop the record.” Id. at *3. We did not hold, however, that we have jurisdiction 6 Elhadi M. Seye v. William P. Barr, No. 18-3651

For these reasons, we DENY Seye’s petition for review.

to review this issue where the petitioner has failed to exhaust his administrative remedies. And it is worth noting that the petitioner in Mendoza-Garcia properly presented this issue to the BIA before presenting it to our court. See id. at *2. 7