Jason Nsinano v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 16-72013
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASON SINAGWANA NSINANO, AKA Nos. 16-72013 Jason Nsinano, 16-72993 16-73977 Petitioner, 17-70854

v. Agency No. A208-305-638

JEFFERSON B. SESSIONS III, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Jason Sinagwana Nsinano, a native and citizen of Namibia, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s decision denying his application for asylum

and withholding of removal (No. 16-72013), of the BIA’s order dismissing his

* 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). appeal from an immigration judge’s decision denying his application for relief

under the Convention Against Torture (“CAT”) and his motion to reconsider

(No. 16-72993), and of the BIA’s two orders denying his motions to reopen

removal proceedings (Nos. 16-73977 and 17-70854). Our jurisdiction is governed

by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). In this

consolidated appeal, we deny Nsinano’s petition as to his CAT claim

(No. 16-72993), grant his petition as his asylum and withholding of removal claims

(No. 16-72013), and we dismiss the petitions as to Nsinano’s remaining claims

(Nos. 16-72993, 16-73977, and 17-70854).

In petition No. 16-72993, as to CAT relief, substantial evidence supports the

agency’s denial because Nsinano failed to establish it is more likely than not he

would be tortured by or with the consent or acquiescence of the government if

returned to Namibia. See id. at 1073.

In petition No. 16-72013, we lack jurisdiction to review the contentions that

Nsinano raises for the first time in his opening brief as to due process. See Barron

v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust claim in

administrative proceedings below). As to Nsinano’s asylum and withholding of

removal claims, substantial evidence does not support the agency’s finding that the

harm Nsinano experienced did not rise to the level of persecution. See Guo v.

2 16-72013 Ashcroft, 361 F.3d 1194, 1202-03 (9th Cir. 2004); Chand v. INS, 222 F.3d 1066,

1073-75 (9th Cir. 2000) (record compelled finding of persecution where petitioner

suffered multiple incidents of physical harm and other kinds of hardship over a

period of years). Thus, we grant the petition for review as to Nsinano’s asylum

and withholding of removal claims, and remand to the agency for further

proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-

18 (2002) (per curiam).

In light of our grant and remand of Nsinano’s petition as to his asylum and

withholding of removal claims, we dismiss Nsinano’s challenge to the BIA’s

denial of his motion to reconsider (No. 16-72993), and the BIA’s denial of his

motions to reopen (Nos. 16-73977 and 17-70854), because there is no final order

of removal.

All pending motions are denied as unnecessary.

Each party shall bear its own costs for these petitions for review.

NO. 16-72013: PETITION FOR REVIEW DISMISSED in part;

GRANTED in part; REMANDED.

NO. 16-72993: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

NO. 16-73977: PETITION FOR REVIEW DISMISSED.

NO. 17-70854: PETITION FOR REVIEW DISMISSED.

3 16-72013