Mulu Muche Belay v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2023
• Docket: 20-71625
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 2 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MULU MUCHE BELAY, No. 20-71625

Petitioner, Agency No. A208-922-920

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted April 19, 2023 Phoenix, Arizona

Before: TALLMAN, OWENS, and BADE, Circuit Judges.

Mulu Muche Belay, a native and citizen of Ethiopia, petitions for review of

the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the

immigration judge’s (“IJ”) decision denying asylum and withholding of removal as

to South Africa, asylum as to Ethiopia, and Convention Against Torture (“CAT”)

protection as to both countries. The BIA dismissed Belay’s appeal regarding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. asylum and withholding as to South Africa because Belay did not show that the

South African government was unable or unwilling to control her persecutors. It

dismissed her appeal regarding asylum as to Ethiopia on the ground that she had

been firmly resettled in South Africa. As the parties are familiar with the facts, we

do not recount them here. We have jurisdiction under 8 U.S.C. § 1252 and review

the BIA’s factual findings for substantial evidence and its legal conclusions de

novo. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We deny the petition in

part and remand in part.

1. Substantial evidence supports the BIA’s finding that Belay did not

show that the South African government was unable or unwilling to control her

persecutors. To qualify for asylum or withholding of removal, a petitioner must

demonstrate past persecution or a fear of future persecution committed by the

government or “forces that the government was [or is] unable or unwilling to

control.” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (citation

omitted).

When Belay reported that she was assaulted by unknown individuals, the

police recorded the information and indicated that they would investigate. Where

the police express a willingness to investigate and where the identity of the

suspects is unknown, the failure of the police to apprehend the perpetrators does

not imply that the government is unable or unwilling to protect a petitioner. See

2 Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam). And while the

documentary evidence is mixed, the record includes reports supporting the BIA’s

conclusions that the South African authorities are successful in prosecuting sexual

assault and have taken steps to curb xenophobic attacks. Accordingly, substantial

evidence supports the BIA’s determination that South Africa was not unwilling or

unable to protect Belay and that Belay is therefore ineligible for asylum and

withholding of removal as to South Africa.

2. In its determination that firm resettlement barred Belay’s application

for asylum as to Ethiopia, the BIA did not have the benefit of Aden v. Wilkinson,

989 F.3d 1073 (9th Cir. 2021), and also relied in part on a decision that has since

been vacated—Matter of K-S-E-, 27 I. & N. Dec. 818 (BIA 2020), vacated,

Sylvestre v. Garland, No. 20-71316, 2021 WL 2453043, at *1 (9th Cir. June 9,

2021) (order). We therefore remand, consistent with the government’s request, for

the agency to reconsider the application of the firm resettlement bar and its

exceptions. On remand, the agency should reassess whether the government met

its burden to show that an offer of permanent resettlement existed pursuant to

Maharaj v. Gonzales, 450 F.3d 961, 976-78 (9th Cir. 2006) (en banc), and, if

necessary, whether Belay has shown that either of the firm resettlement exceptions

apply, see Aden, 989 F.3d at 1079-82.

3 3. Because Belay did not make any specific arguments to the BIA

challenging the IJ’s denial of her CAT claims, the issue is unexhausted and we lack

jurisdiction to review it. See Alanniz v. Barr, 924 F.3d 1061, 1068-69, 1069 n.8

(9th Cir. 2019).

The motion for a stay of removal is granted. Belay’s removal is stayed

pending a decision by the agency.

The parties shall bear their own costs on appeal.

PETITION DENIED IN PART AND REMANDED IN PART.