NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MAZEN JARBANDA, No. 18-70114
Petitioner, Agency No. A208-584-466
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 15, 2020** San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District Judge.
Petitioner Mazen Jarbanda, a native and citizen of Syria and permanent
resident of Guatemala, appeals the Board of Immigration Appeals’ (“BIA”) order
* 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. affirming the immigration judge’s (“IJ”) denial of eligibility for asylum and
withholding of removal, and denial of protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny in
part and grant in part the petition for review, and we remand to the BIA for further
proceedings consistent with this disposition.
The BIA erred when it considered Jarbanda’s asylum claim from both Syria
and Guatemala. Asylum is available to refugees, and the Immigration and
Nationality Act defines “refugee” as “any person who is outside any country of
such person’s nationality . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on account of” a
protected ground. 8 U.S.C. § 1101(a)(42) (emphases added), see also id.
§ 1158(b)(1)(A). In order “to receive asylum, a person of dual nationality must
demonstrate a well-founded fear of persecution in both countries.” Sung Kil Jang
v. Lynch, 812 F.3d 1187, 1192 (9th Cir. 2015). Although the BIA made no
findings regarding whether Jarbanda has dual nationality, it analyzed whether
Jarbanda was eligible for asylum from both Syria and from Guatemala. On
petition for review of the BIA’s decision, Jarbanda contends that the agency erred
in analyzing whether he was eligible for asylum from Guatemala because he is not
a national of Guatemala. The Government’s brief “does not offer any argument on
2 the merits of this” contention, so “it has waived any challenge to the argument[]
[Jarbanda] raised” regarding the BIA’s error in analyzing asylum from Guatemala.
See Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017). Thus, on remand, the
BIA should consider only whether Jarbanda is eligible for asylum from Syria.
The BIA also erred when it determined that Jarbanda was ineligible for
asylum from Syria because he was “firmly resettled” in Guatemala. Asylum is
barred if the applicant “was firmly resettled in another country prior to arriving in
the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi). “An alien is considered to be
firmly resettled if, prior to arrival in the United States, he or she entered into
another country with, or while in that country received, an offer of permanent
resident status[.]” 8 C.F.R. § 208.15. An exception arises if “the conditions of [the
applicant’s] residence in that country were so substantially and consciously
restricted by the authority of the country of refuge that he or she was not in fact
resettled.” Id. § 208.15(b).
The IJ rejected Jarbanda’s argument that he was not firmly resettled in
Guatemala because the conditions of his residence were substantially and
consciously restricted, noting that Jarbanda “was able to obtain property, work,
travel freely, and progressively solidify his immigration status in Guatemala.” The
IJ expressly did not consider Jarbanda’s evidence relating to harm he suffered in
Guatemala, stating that it was irrelevant: “[Jarbanda’s] closing arguments cite to
3 USCIS training materials to determine that persecution in the third country is
evidence that the individual has not firmly resettled. However, there is not
statutory or precedent based authority for this interpretation.” The BIA affirmed
the IJ’s decision on firm resettlement without discussion of Jarbanda’s evidence of
his suffered harm.
We conclude that the IJ and the BIA improperly disregarded Jarbanda’s
evidence relating to his suffered harm, including testimony that he was threatened
and extorted by gang members and police officers in Guatemala. Evidence of past
persecution “could rebut the finding of firm resettlement in light of our previous
holding that firmly resettled aliens are by definition no longer subject to
persecution.” Arrey v. Barr, 916 F.3d 1149, 1159–60 (9th Cir. 2019) (quotation
marks and citation omitted). We remind the BIA that a finding of past persecution
which would support an asylum claim is sufficient, but not necessary, to show a
lack of firm resettlement. Thus, even if Jarbanda’s evidence is of harm insufficient
for a claim of past persecution, that evidence is still relevant to the analysis of
whether he was firmly resettled in Guatemala. See Matter of K-S-E-, 27 I. & N.
Dec. 818, 821-22 (BIA 2020) (considering whether “the respondent’s . . . evidence
. . . of discrimination and criminal activity against Haitians in Brazil . . .
establish[ed] that the Brazilian Government actively support[ed] any mistreatment
of Haitians that . . . constitute[d] a conscious and substantial restriction of the
4 respondent’s residence”). We remand so that the BIA can reevaluate Jarbanda’s
claim for asylum from Syria, taking into account evidence of the harm he suffered
in Guatemala. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)
(“‘[T]he BIA is obligated to consider and address in its entirety the evidence
submitted by a petitioner,’ and where its failure to do so could have affected its
decision, remand is appropriate.” (alteration in original) (quoting Mohammed v.
Gonzales, 400 F.3d 785, 793 (9th Cir. 2005))).
With regard to Jarbanda’s withholding and CAT claims, the BIA properly
limited its consideration of those claims to the context of Guatemala. Unlike for
asylum, withholding and CAT claims both depend on the applicant’s fear of
returning to his country of removal. See 8 C.F.R.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MAZEN JARBANDA, No. 18-70114
Petitioner, Agency No. A208-584-466
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 15, 2020** San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District Judge.
Petitioner Mazen Jarbanda, a native and citizen of Syria and permanent
resident of Guatemala, appeals the Board of Immigration Appeals’ (“BIA”) order
* 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. affirming the immigration judge’s (“IJ”) denial of eligibility for asylum and
withholding of removal, and denial of protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny in
part and grant in part the petition for review, and we remand to the BIA for further
proceedings consistent with this disposition.
The BIA erred when it considered Jarbanda’s asylum claim from both Syria
and Guatemala. Asylum is available to refugees, and the Immigration and
Nationality Act defines “refugee” as “any person who is outside any country of
such person’s nationality . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on account of” a
protected ground. 8 U.S.C. § 1101(a)(42) (emphases added), see also id.
§ 1158(b)(1)(A). In order “to receive asylum, a person of dual nationality must
demonstrate a well-founded fear of persecution in both countries.” Sung Kil Jang
v. Lynch, 812 F.3d 1187, 1192 (9th Cir. 2015). Although the BIA made no
findings regarding whether Jarbanda has dual nationality, it analyzed whether
Jarbanda was eligible for asylum from both Syria and from Guatemala. On
petition for review of the BIA’s decision, Jarbanda contends that the agency erred
in analyzing whether he was eligible for asylum from Guatemala because he is not
a national of Guatemala. The Government’s brief “does not offer any argument on
2 the merits of this” contention, so “it has waived any challenge to the argument[]
[Jarbanda] raised” regarding the BIA’s error in analyzing asylum from Guatemala.
See Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017). Thus, on remand, the
BIA should consider only whether Jarbanda is eligible for asylum from Syria.
The BIA also erred when it determined that Jarbanda was ineligible for
asylum from Syria because he was “firmly resettled” in Guatemala. Asylum is
barred if the applicant “was firmly resettled in another country prior to arriving in
the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi). “An alien is considered to be
firmly resettled if, prior to arrival in the United States, he or she entered into
another country with, or while in that country received, an offer of permanent
resident status[.]” 8 C.F.R. § 208.15. An exception arises if “the conditions of [the
applicant’s] residence in that country were so substantially and consciously
restricted by the authority of the country of refuge that he or she was not in fact
resettled.” Id. § 208.15(b).
The IJ rejected Jarbanda’s argument that he was not firmly resettled in
Guatemala because the conditions of his residence were substantially and
consciously restricted, noting that Jarbanda “was able to obtain property, work,
travel freely, and progressively solidify his immigration status in Guatemala.” The
IJ expressly did not consider Jarbanda’s evidence relating to harm he suffered in
Guatemala, stating that it was irrelevant: “[Jarbanda’s] closing arguments cite to
3 USCIS training materials to determine that persecution in the third country is
evidence that the individual has not firmly resettled. However, there is not
statutory or precedent based authority for this interpretation.” The BIA affirmed
the IJ’s decision on firm resettlement without discussion of Jarbanda’s evidence of
his suffered harm.
We conclude that the IJ and the BIA improperly disregarded Jarbanda’s
evidence relating to his suffered harm, including testimony that he was threatened
and extorted by gang members and police officers in Guatemala. Evidence of past
persecution “could rebut the finding of firm resettlement in light of our previous
holding that firmly resettled aliens are by definition no longer subject to
persecution.” Arrey v. Barr, 916 F.3d 1149, 1159–60 (9th Cir. 2019) (quotation
marks and citation omitted). We remind the BIA that a finding of past persecution
which would support an asylum claim is sufficient, but not necessary, to show a
lack of firm resettlement. Thus, even if Jarbanda’s evidence is of harm insufficient
for a claim of past persecution, that evidence is still relevant to the analysis of
whether he was firmly resettled in Guatemala. See Matter of K-S-E-, 27 I. & N.
Dec. 818, 821-22 (BIA 2020) (considering whether “the respondent’s . . . evidence
. . . of discrimination and criminal activity against Haitians in Brazil . . .
establish[ed] that the Brazilian Government actively support[ed] any mistreatment
of Haitians that . . . constitute[d] a conscious and substantial restriction of the
4 respondent’s residence”). We remand so that the BIA can reevaluate Jarbanda’s
claim for asylum from Syria, taking into account evidence of the harm he suffered
in Guatemala. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)
(“‘[T]he BIA is obligated to consider and address in its entirety the evidence
submitted by a petitioner,’ and where its failure to do so could have affected its
decision, remand is appropriate.” (alteration in original) (quoting Mohammed v.
Gonzales, 400 F.3d 785, 793 (9th Cir. 2005))).
With regard to Jarbanda’s withholding and CAT claims, the BIA properly
limited its consideration of those claims to the context of Guatemala. Unlike for
asylum, withholding and CAT claims both depend on the applicant’s fear of
returning to his country of removal. See 8 C.F.R. § 1208.16. Jarbanda was
ordered removed to Guatemala, not Syria. Therefore, it is irrelevant that he fears
persecution or torture in Syria for purposes of these claims, because “nobody is
trying to send [him] to” Syria. Su Hwa She v. Holder, 629 F.3d 958, 965 (9th Cir.
2010).
Substantial evidence supports the BIA’s determination that Jarbanda was
ineligible for withholding because he failed to show the requisite nexus between
his suffered harm and a protected ground. Jarbanda testified that threats and
extortion were common problems for businessowners in Guatemala. And, in the
factual circumstances present here, the single instance of offensive remarks
5 regarding the petitioner’s origin does not compel a finding of nexus. Cf. Singh v.
Barr, 935 F.3d 822, 827 (9th Cir. 2019).1
The record likewise does not compel the conclusion that Jarbanda would
“more likely than not” be tortured upon removal to Guatemala. 8 C.F.R.
§ 208.16(c)(2). Jarbanda’s past harm was not torture. See Ahmed v. Keisler, 504
F.3d 1183, 1200–01 (9th Cir. 2007). Nor do the country conditions reports on
Guatemala compel the finding that Jarbanda would be subject to a sufficient
particularized threat of torture. Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.
2008).
We deny in part and grant in part the petition for review, and we remand to
the BIA for further proceedings consistent with this disposition. Each party shall
bear its own costs on appeal.
PETITION FOR REVIEW DENIED IN PART; GRANTED IN PART;
REMANDED.
1 We reject Jarbanda’s argument that the agency failed to apply the correct legal standard (that a protected ground was “a reason” for the harm, Barajas- Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017)). Both the IJ and the BIA expressly asked whether a protected ground was “a reason” for Jarbanda’s suffered harm.