Mussie Gebreweldi v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2021
• Docket: 20-71009
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MUSSIE GEBREWELDI, No. 20-71009

Petitioner, Agency No. A215-816-451

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 12, 2021 Seattle, Washington

Before: HAWKINS and CALLAHAN, Circuit Judges, and FITZWATER,** District Judge.

Mussie Gebreweldi, a native and citizen of Eritrea, petitions for review of the

decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal of an

immigration judge’s denial of Gebreweldi’s motion to reopen his removal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part

and deny in part the petition for review.

Gebreweldi contends for the first time that, as an alien seeking entry into the

United States for the purpose of applying for asylum, he is not inadmissible under 8

U.S.C. § 1182(a)(7)(A)(i)(I) as charged. Generally, we lack jurisdiction over legal

claims not presented in the administrative proceedings below. Alvarado v. Holder,

759 F.3d 1121, 1127 (9th Cir. 2014). Although he concedes that he failed to raise

this challenge before the IJ or BIA either in his original removal proceedings or in

his motion to reopen, Gebreweldi argues that he is exempt from the normal

exhaustion requirement because exhaustion would have been futile. See id. at 1129

(explaining that exhaustion is not required “if the BIA—bound by our prior

precedent—would be precluded from granting relief”). Contrary to Gebreweldi’s

contention, our decision in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017),

overruled by Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc), did not address

the specific issue he now raises or “entirely foreclose[] [the issue] such that the

agency [could not] give it unencumbered consideration.” Alvarado, 759 F.3d at

1128. Accordingly, we lack jurisdiction to consider Gebreweldi’s challenge to his

inadmissibility charge. See id. at 1127.

Gebreweldi next contends that the BIA erred in its conclusion that he failed

to demonstrate changed country conditions to support his motion to reopen. The

2 20-71009 BIA did not abuse its discretion. See Toufighi v. Mukasey, 538 F.3d 988, 992 (9th

Cir. 2008). The BIA reasonably concluded that the evidence submitted in support

of Gebreweldi’s motion indicated that the conditions in Eritrea were largely

unchanged and that Gebreweldi failed to demonstrate that he was similarly situated

to the individuals discussed in the reports and articles. See Najmabadi v. Holder,

597 F.3d 983, 989–90 (9th Cir. 2010).

The BIA also did not err by declining to address Gebreweldi’s challenge to

the adverse credibility determination that the IJ rendered in connection with

Gebreweldi’s applications for relief from removal. Gebreweldi did not challenge

the adverse credibility determination by way of a direct appeal of the IJ’s denial of

his applications for relief from removal, nor did he challenge it in his motion to

reopen. Instead, he raised this challenge for the first time in his appeal of the IJ’s

denial of his motion to reopen, and the BIA acted within its discretion by declining

to address the merits of the argument. See Honcharov v. Barr, 924 F.3d 1293, 1296–

97 (9th Cir. 2019).

Gebreweldi’s corrected motion to stay removal [Docket Entry #15] is denied

as moot.

PETITION DISMISSED, in part; DENIED, in part.

3 20-71009