Lerius Francois v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 17-73014
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LERIUS FRANCOIS, No. 17-73014

Petitioner, Agency No. A209-141-352

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 10, 2019** Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,*** District Judge.

Petitioner Lerius Francois, a native and citizen of Haiti, applied for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

* 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Francois claims that he fears persecution if he is removed to Haiti because of a

family land dispute. After a merits hearing, the Immigration Judge (“IJ”) denied

Francois’ application. The Board of Immigration Appeals (“BIA”) affirmed the

IJ’s decision. We have jurisdiction under 8 U.S.C. § 1252, and we deny Francois’

petition.

We review the IJ’s factual findings for substantial evidence. Garcia v.

Holder, 749 F.3d 785, 789 (9th Cir. 2014). “We will uphold the finding ‘unless

any reasonable adjudicator would be compelled to conclude to the contrary.’”

Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016) (quoting Garcia, 749 F.3d

at 789); see also 8 U.S.C. § 1252(b)(4)(B) (agency’s “findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary”). The Court reviews questions of law de novo. Cerezo v. Mukasey,

512 F.3d 1163, 1166 (9th Cir. 2008).

Substantial evidence supports the IJ’s adverse credibility finding. The IJ

noted that when Francois arrived at the United States border, he initially told

immigration authorities that he was coming to the United States “to find a better

life.” When asked if he would be harmed if he were returned to Haiti, Francois

answered: “[n]o one would harm me but it is insecure.” Francois then testified in

front of the IJ, and the IJ noted that his answers “are 180 degrees with one

another.” The IJ noted, for example, that Francois “under oath said he had no fear

2 of going back to Haiti, yet today he swears he will be killed if he goes back to

Haiti.” The statements Francois made at the border were given under oath, were

administered in Creole, and Francois initialed each page of his statement. It was

reasonable for the IJ to rely on those statements when making the credibility

determination. Cf. Singh v. Gonzales, 403 F.3d 1081, 1085-90 (9th Cir. 2005)

(holding that certain features of an asylum interview, such as whether it was

administered under oath and in the native language, can make the interview

unreliable for purposes of a credibility determination). We are not compelled to

conclude to the contrary.

Even if Francois were found to be credible, he did not meet the statutory

requirements for asylum. “An individual qualifies as a refugee when he is ‘unable

or unwilling to return to [his country of nationality] . . . 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.’” Pirir-Boc v.

Holder, 750 F.3d 1077, 1081 (9th Cir. 2014) (alteration added) (quoting 8 U.S.C. §

1101(a)(42)(A)). The violence that Francois fears relates to a family land dispute

between his mother and his uncle, and Francois does not demonstrate that he was

or will be persecuted on account of his familial ties. Cf. Rios v. Lynch, 807 F.3d

1123, 1128 (9th Cir. 2015). Francois has therefore failed to show persecution on

3 account of his membership in a particular social group.1

Francois argues that the IJ failed to sufficiently apprise him of the

proceedings and what he must provide to establish his eligibility for relief. A

noncitizen facing deportation proceedings is entitled to a full and fair hearing on

his claims and a reasonable opportunity to present evidence on his behalf. Ibarra-

Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006). The record indicates

that the IJ gave a detailed explanation of the removal hearing and the rights of

petitioners in such hearings. The proceeding was not fundamentally unfair. Id.

Francois also argues the IJ failed to fully develop the record. Even assuming

Francois could show that his due process rights were violated in this regard, he

failed to demonstrate prejudice. Id. at 621 (requiring the applicant to show that the

outcome of the proceeding was affected by the due process violation).

DENIED.

1 Because Francois failed to show that he was persecuted because of his membership in a particular social group, he also fails to demonstrate eligibility for withholding of removal. Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (citing 8 U.S.C. § 1231(b)(3) to explain eligibility for withholding of removal).