Muthana Jalal Aziz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2020
• Docket: 18-72940
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MUTHANA JALAL AZIZ, No. 18-72940

Petitioner, Agency No. A209-875-914

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 4, 2020** Portland, Oregon

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,*** Judge.

Muthana Jalal Aziz, a native and citizen of Iraq, seeks review of the Board

of Immigration Appeals’s order affirming the denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture. We

* 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 Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. deny the petition.

1. Jalal Aziz cannot establish eligibility for asylum or withholding of

removal on the basis of the abuse to which he was subjected following his

desertion from the Iraqi army in 1994. “Punishment on account of desertion

generally does not support refugee status, unless it can be shown that such

punishment is based on political opinion or another statutorily-protected ground.”

Al-Harbi v. INS, 242 F.3d 882, 889 (9th Cir. 2001). Although Jalal Aziz argues to

this Court that the abuse was inflicted on account of a political opinion, he did not

make that argument to the BIA. As the argument that his desertion was the

expression of a political opinion is unexhausted, this Court lacks jurisdiction to

address it. 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004).

2. Jalal Aziz failed to establish eligibility for asylum or withholding of

removal based on his Christian religion. Given that Jalal Aziz did not present

evidence establishing past persecution on this basis, he “bears the burden of

establishing that it would be either unsafe or unreasonable for him to relocate,

unless the persecution is by a government or is government-sponsored.” Kaiser v.

Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004) (citing 8 C.F.R. § 208.13(b)(3)(i)). The

evidence introduced by Jalal Aziz attests to persecution directed at Christians in

some parts of Iraq, but not by the government and not government-sponsored. That

2 evidence does not meet Jalal Aziz’s burden to demonstrate that it would be unsafe

or unreasonable for him to relocate to other parts of Iraq to avoid such persecution.

3. Nor can Jalal Aziz establish that the gang violence to which he was

subjected in Guatemala, where he lived from 1995 until 2016, makes him eligible

for asylum or withholding of removal. “An alien’s desire to be free from

harassment by criminals motivated by theft or random violence by gang members

bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010). The agency did not err in concluding that there was insufficient

evidence to show that the gang threats and extortion to which Jalal Aziz and his

family were subjected in Guatemala were perpetrated for any reason other than

pecuniary gain. Although Jalal Aziz argues to this Court that the violence he faced

due to his status as a visa holder, which he argues is a “particular social group,” he

did not raise this argument before the BIA, so the Court lacks jurisdiction to reach

it. See 8 U.S.C. § 1252(d)(1).

4. Jalal Aziz’s claims under the Convention Against Torture also fail.

Although the abuse that Jalal Aziz suffered in Iraq following his desertion

undoubtedly constituted torture, he has not shown that he is likely to be tortured at

the hands of a different government upon his return. And the agency did nor err in

concluding that the gang-related crimes that Jalal Aziz faced or might face in

Guatemala would not constitute torture under the Convention Against Torture.

3 PETITION FOR REVIEW DENIED.