Mustafa Tanin v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2018
• Docket: 17-71871
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MUSTAFA TANIN, No. 17-71871

Petitioner, Agency No. A206-317-913

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Argued and Submitted November 8, 2018 Portland, Oregon

Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge.

Mustafa Tanin, a native and citizen of Afghanistan, petitions for review of

the denial of his application for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). We have jurisdiction under 8

U.S.C. § 1252, and we dismiss in part and deny in part the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. We review the BIA’s credibility finding for substantial evidence and reverse

only if “the evidence compels a contrary result.” Almaghzar v. Gonzales, 457 F.3d

915, 920 (9th Cir. 2006) (quotations and citation omitted); see also Shrestha v.

Holder, 590 F.3d 1034, 1044–45 (9th Cir. 2010). “[A]n adverse credibility

determination may be supported by omissions [in an application] that are not

details, but new allegations that tell a much different—and more compelling—

story of persecution than [the] initial application.” Silva-Pereira v. Lynch, 827

F.3d 1176, 1185–86 (9th Cir. 2016) (quotations and citation omitted). At Tanin’s

second merits hearing, he testified that the Taliban burned him on his back with a

hot iron, even though he had not mentioned the incident in any of the earlier

proceedings or in his asylum application. This attack was one of two physical

attacks he allegedly suffered, and thus was a compelling new allegation rather than

just a detail. See id. Therefore, substantial evidence supports the BIA’s adverse

credibility finding.

Tanin’s past persecution claim also fails. The last analysis of Tanin’s claim

was by the BIA on his first appeal, when it determined Tanin had not offered

sufficient evidence of past persecution. Tanin improperly relies on evidence that

was introduced or corroborated at the second merits hearing, which was not in the

record before the BIA on his first appeal. On remand from the first appeal, Tanin

did not argue that his past persecution claim should have been reanalyzed using

2 new evidence produced at the second merits hearing. It stands unchallenged. See

Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (concluding that a

petitioner only exhausts claims he raises and argues in his brief to the BIA).

Because Tanin did not argue that evidence introduced or corroborated at the

second merits hearing should be applied to his past persecution claim at the

appropriate time, the claim he now presses before us is unexhausted, and Tanin

cannot rely on this later introduced evidence to prove up his past persecution

claim. We lack jurisdiction to review in this manner the claim on the record before

us. Id. And Tanin makes no argument that the past persecution finding was not

supported by substantial evidence based solely on evidence in the record at the

time of the first BIA decision.

Additionally, on his second appeal, Tanin did not clearly and distinctly raise

a claim of a well-founded fear of future persecution based on either social group

membership or imputed political opinion as related to his United States military

affiliation. See Rizo v. Lynch, 810 F.3d 688, 692 (9th Cir. 2016) (A “conclusory

statement does not apprise the BIA of the particular basis for [an applicant’s claim]

that the IJ erred.”). We thus lack jurisdiction to review these unexhausted claims.

See 8 U.S.C. § 1252(d)(1) (“[This] court may review a final order of removal only

if the alien has exhausted all administrative remedies available to the alien as of

right.”); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (holding no subject-

3 matter jurisdiction over unexhausted claims).

Tanin asserts that the record supports a fear of future persecution and a clear

probability of torture premised on his religion, ethnicity, and political opinion. The

only evidence connecting Tanin’s political opinion based on his National Unity

Party membership to his fear of future persecution or torture is his own testimony,

which, as discussed above, was deemed unreliable. To the extent other

documentary evidence suggests persecution of Hazara and Shia Muslims in

Afghanistan, the BIA did not err in denying his petition on these grounds because

there was no evidence Tanin’s similarly situated family had been harmed on

religious or ethnic grounds despite remaining in Afghanistan. See Hakeem v. INS,

273 F.3d 812, 816 (9th Cir. 2001) (noting that a claim of future persecution can be

weakened or undercut when family members or similarly situated individuals live

in the country without harm), superseded by statute on other grounds as stated in

Ramadan v. Gonzalez, 479 F.3d 646 (9th Cir. 2007).

Finally, the BIA’s denial of Tanin’s CAT claim because the Afghan

government is not acquiescing to any torture of its citizens by the Taliban is

supported by substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1034

(9th Cir. 2014).

PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.