Morshed Alam v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 16, 2018
• Docket: 17-12603
• Status: Unpublished

Opinion

Case: 17-12603 Date Filed: 05/16/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12603 Non-Argument Calendar ________________________

Agency No. A206-227-187

MORSHED ALAM,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(May 16, 2018)

Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-12603 Date Filed: 05/16/2018 Page: 2 of 10

Morshed Alam petitions for review of the Board of Immigration Appeals’s

(“BIA”) decision affirming the immigration judge’s (“IJ”) order denying his claims

for asylum and withholding of removal under the Immigration and Nationality Act

(“INA”) and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). In his

petition, Alam principally argues that the BIA erred in affirming the IJ’s finding

that he could reasonably be expected to relocate to another part of Bangladesh.

Alam also contends that he is eligible for asylum because he suffered past

persecution on account of his political activities and has a reasonable fear of future

persecution, that the BIA erred in finding that he had not met his burden to

establish a claim for withholding of removal, and that he qualifies for relief under

the CAT because there is a clear probability he would suffer torture in Bangladesh.

I

We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). To the extent the BIA adopts the reasoning of the IJ, we review the IJ’s

decision as well. Id. Issues not reached by the BIA in its final order of removal

are not properly before us. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th

Cir. 2007); Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1279 (11th Cir. 2013). In

addition, claims that are not briefed on appeal are deemed abandoned, and their

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merits will not be addressed. Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir.

2013). We lack jurisdiction to “consider issues that could have been, but were not

properly raised in immigration proceedings and appealed to the BIA.” Bing Quan

Lin v. U.S. Att’y Gen., 881 F.3d 860, 867 (11th Cir. 2018).

We review legal claims, such as whether the BIA applied the wrong legal

standard or failed to give reasoned consideration to an issue, de novo. Jeune

v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). The BIA need not address

every piece of evidence presented by the petitioner, and instead, “need only

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.” Cole, 712 F.3d at 534 (internal quotation marks omitted).

We review factual determinations under the substantial-evidence test, which

requires us to “view the record evidence in the light most favorable” to the BIA’s

decision and to “draw all reasonable inferences in favor of that decision.” Adefemi

v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). To reverse a

factual determination, we “must find that the record not only supports reversal, but

compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

We do not re-weigh the evidence that was before the BIA. Kazemzadeh v. U.S.

Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009). The question of relocation—

principally at issue here—is a factual issue. Diallo v. U.S. Att'y Gen., 596 F.3d

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1329, 1334 (11th Cir. 2010). We must affirm the BIA’s decision “if it is supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)

(internal quotation marks omitted).

II

An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of the Department of Homeland Security (“DHS”) has discretion to grant

asylum if the alien meets the INA’s definition of “refugee.” INA § 208(b)(1), 8

U.S.C. § 1158(b)(1). The INA defines “refugee” as:

any person who is outside any country of such person’s nationality . . . 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 race, religion, nationality, membership in a particular social group, or political opinion.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden

of proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at

1284. To establish eligibility, the alien must, with specific and credible evidence,

establish (1) past persecution on account of a factor listed in the statute or (2) a

well-founded fear that the factor will cause future persecution. 8 C.F.R.

§ 208.13(b).

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“A showing of past persecution creates a presumption of a ‘well-founded

fear,’ subject to rebuttal[.]” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231

(11th Cir. 2005). To overcome the presumption of a well-founded fear of future

persecution, the government must demonstrate by a preponderance of the evidence

either “(1) that there has been a fundamental change in circumstances such that the

applicant no longer has a well-founded fear of persecution” or—importantly

here—“(2) [that] the applicant could avoid future persecution by relocating to

another part of the applicant’s country of nationality and under all the

circumstances, it would be reasonable to expect the applicant to do so.”

Kazemzadeh, 577 F.3d at 1351–52 (alterations and quotations marks omitted).

With respect to the latter, the BIA must consider the following non-exhaustive

factors in determining the reasonableness of relocating:

whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.

8 C.F.R. § 1208.13(b)(3); Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1226 (11th

Cir. 2006).

To qualify for withholding of removal, a petitioner must establish that his

“life or freedom would be threatened” in his country because of his “race, religion,

nationality, membership in a particular social group, or political opinion.” INA

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§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); see also Mendoza, 327 F.3d at 1287.

The petitioner must show that it is more likely than not that he will be persecuted

on account of a protected ground if returned to his home country. Rodriguez v.

U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). A failure to establish

eligibility for asylum necessitates a failure to meet the higher standard for

withholding of removal. Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1177 (11th Cir.

2008).

III

As an initial matter, the BIA found that Alam had abandoned his CAT claim

on appeal and Alam does not meaningfully challenge that finding. Accordingly, he

has waived review of that determination, the issue was not properly exhausted

before the BIA, and we lack jurisdiction to consider it. See Bing Quan Lin, 881

F.3d at 867; Cole, 712 F.3d at 530. That aspect of Alam’s petition is therefore

dismissed. In addition, the BIA explicitly chose to rule only on the ground that the

government had overcome the presumption of Alam’s future persecution due to his

ability to safely and reasonably relocate within Bangladesh. Because we do not

address issues not reached by the BIA, Lopez, 504 F.3d at 1344, we will not

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address the additional issues discussed by Alam in his brief.1 Rather, like the BIA,

will confine our review to the relocation issue.

Substantial evidence supports the BIA’s determination that the government

rebutted Alam’s well-founded fear of persecution by showing that he could

relocate to the Sylhet region (or division) of Bangladesh to avoid persecution and

that it would be reasonable to expect him to do so. See Kazemzadeh, 577 F.3d at

1351–52.

While the 2012 and 2013 Human Rights Reports for Bangladesh mentioned

ongoing political violence in the country, they did not mention any political

violence in Sylhet specifically. Similarly, although the Odhikar Report painted a

troubling picture of political violence in Bangladesh generally, it also did not

identify Sylhet as a particularly problematic area. The Odhikar Report noted that

Awami League continued to rely on overt and violent force and stated that the

oppression of opposing political parties had become regular practice, but it also

explained that the government had repressed meetings and protests of its political

opponents less in Sylhet than all but one other division of Bangladesh. Finally,

while the EVER Report found that one of the districts in Sylhet had a large number

1 Alam mentions in passing that evidence that he submitted with his motion to reopen warranted the reopening of his proceedings. However, the only motion to reopen filed by Alam that is evident in the record was granted. There is nothing in the record indicating that Alam filed an additional motion to reopen below and he has no other petition pending with this Court. In any event, because Alam has only mentioned the issue in passing in his brief, the argument is abandoned and we will not consider it. Cole, 712 F.3d at 530.

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of violent incidents, it also noted that Sylhet had the fewest total number of

instances of violence of any division and the second fewest number of people

wounded in any division. Thus, according to the Report, the division of Sylhet as a

whole was significantly safer than other parts of Bangladesh.

Alam’s counterarguments are not persuasive, and in any event cannot

overcome the deference owed to the BIA’s relocation determination. First,

although Alam argues that conditions in all of Bangladesh were deteriorating, the

documentary evidence included in the various reports indicates that, at least in

terms of political violence, some areas of Bangladesh, including Sylhet, are indeed

safer than others. Second, to the extent that Alam asserts that general violence is

so prevalent in Bangladesh that he would not be safe anywhere in the country, he

simply has not provided sufficient supporting evidence. Third, while Alam

contends that the police were involved in efforts to attack and suppress members of

opposition parties, his assertion does not directly address the BIA’s finding that he

could avoid future persecution by relocating to Sylhet. Finally, Alam argues that

the criminal charges against him would result in a nationwide search for him by the

police force―which, he asserts, in Bangladesh is controlled by the national (rather

than local) government. But he fails to address the BIA’s conclusion that he

offered no evidence regarding Bangladesh’s criminal structure or other

documentation to support this assertion.

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This Court does cannot re-weigh the evidence that was before the BIA,

Kazemzadeh, 577 F.3d at 1351, and in any event, there is no evidence in the record

that would compel this Court to reverse the BIA’s determination that Alam could

avoid future persecution by relocating to Sylhet. Id. at 1351–52; Mendoza, 327

F.3d at 1287.

Substantial evidence also supports the BIA’s determination that it would be

reasonable to expect Alam to relocate to Sylhet. See Kazemzadeh, 577 F.3d at

1351–52. The BIA considered the fact that Alam was young, single, in good

health, had no children, and had never held a national political office, as well as the

fact that his assailants appeared to be local Awami League members whose

influence did not extend beyond their district. Alam also testified that, prior to

leaving Bangladesh, he was able to move around the country freely, and the 2013

Human Rights Report stated that, as a general matter, the government permits

freedom of movement within the country. Accordingly, construing the evidence in

light most favorable to the BIA’s determination, Adefemi, 386 F.3d at 1026–27, the

record supports the BIA’s finding that he could reasonably relocate to Sylhet.

Kazemzadeh, 577 F.3d at 1351–52; 8 C.F.R. § 1208.13(b)(3)(ii). Because Alam

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has failed to establish eligibility for asylum, he has necessarily also failed to meet

the higher standard for withholding of removal. Djonda, 514 F.3d at 1177.2

Accordingly, we dismiss the petition as to Alam’s CAT claim and otherwise

deny the petition.

DISMISSED IN PART, DENIED IN PART.

2 To the extent that Alam argues that the BIA overlooked or did not address his arguments, the BIA need not address every piece of evidence presented by a petitioner and the BIA’s order demonstrates that it considered the issues raised and adequately explained its decision. Cole, 712 F.3d at 534.