Odei v. Garland

71 F.4th 75

• Court: Court of Appeals for the First Circuit
• Decided: June 15, 2023
• Docket: 21-1315P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1315

EBENEZER ODEI,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Selya and Gelpí, Circuit Judges.

Stella B. Angwafo and Stella B. Angwafo Law Office on brief for petitioner. Brian M. Boynton, Principal Deputy Attorney General, Civil Division, United States Department of Justice, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Andrea Gevas, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

June 15, 2023 SELYA, Circuit Judge. This case has its roots in a land

grab that occurred long ago and far away. The petitioner, Ebenezer

Odei, traces his membership in a particular social group back to

events that occurred in his native Ghana in 1984 and claims that

— if repatriated — he has a reasonable fear of persecution on

account of his membership in that social group. The immigration

judge (IJ) and the Board of Immigration Appeals (BIA) both rejected

the petitioner's claim. He now seeks judicial review. After

careful consideration, we deny the petition.

I

We briefly rehearse the relevant facts and travel of the

case. On November 14, 2001, the petitioner entered the United

States on a B-2 visa as a nonimmigrant visitor. He overstayed

that visa but nonetheless attempted to secure legal status — well

after the visa's expiry — through marriage to a United States

citizen. By virtue of this marriage, he applied for an adjustment

of status, and his wife concurrently petitioned, on his behalf,

for an I-130 immigrant visa. Those efforts, though, came to

naught: in September of 2009, the United States Citizenship and

Immigration Services (USCIS) denied the visa petition on the ground

that the couple had failed to prove the bona fides of their

marriage. Consequently, the application for adjustment of status

also was denied.

- 2 - The Department of Homeland Security then notified the

petitioner that he was subject to removal and ordered him to appear

before the immigration court for removal proceedings. Those

proceedings were stayed for some time to adjudicate additional

successive I-130 petitions filed on the petitioner's behalf. In

June of 2011, the petitioner's wife again sought an I-130 immigrant

visa, which was denied when the couple failed to appear for a

required interview with USCIS officials. In September of 2012,

the couple divorced. The petitioner remarried in June of the

following year, and his second citizen-spouse, like the first,

filed an I-130 petition to his behoof. That petition was also

denied.

Removal proceedings resumed in December of 2015. The

petitioner conceded removability but cross-applied for withholding

of removal and protection under the United Nations Convention

Against Torture (CAT). In support, he testified that his family

had been displaced from their cocoa farm in Ghana when a local

chieftain expropriated the property in 1984. According to the

petitioner, the chieftain demanded that his father relinquish the

farm, and when his father refused, the chieftain retaliated by

burning the farm and beating his parents. Still, the family

remained in place. The chieftain was not pleased and had the

petitioner and his brothers beaten.

- 3 - Following this second act of violence, the family fled

to the capital city of Accra, where they lived for fifteen years.

Eventually, the petitioner travelled from there to the United

States. He claimed that if returned to Ghana, he would be tortured

and killed because his family never surrendered formal title to

the land that was taken from them.

The IJ was unpersuaded. She found that the petitioner

was not a credible witness; that he had failed to show that he

belonged to a persecuted social group; and that the persecution he

claimed to have suffered was not on account of a statutorily

protected ground but, rather, was due to the chieftain's desire to

give the land to another family. The IJ also found that the

petitioner had failed to establish a clear probability that he

would be persecuted in the future should he be returned to Ghana.

Accordingly, the petitioner's applications for withholding of

removal and protection under the CAT were denied, and the IJ

ordered him removed to Ghana.

The petitioner appealed the IJ's denial of his

application for withholding of removal (but not the denial of his

CAT application) to the BIA. The BIA affirmed the IJ's decision,

holding that the IJ's determination that the petitioner had failed

to establish a causal connection between the chieftain's

predations and a statutorily protected ground was not clearly

erroneous. Because that issue was dispositive of the appeal, the

- 4 - BIA refrained from addressing any other aspects of the IJ's

decision. After the BIA dismissed the petitioner's appeal, this

timely petition for judicial review ensued.

II

"Where the BIA does not adopt the IJ's findings, we

review the BIA's decision rather than the IJ's." Aguilar-Escoto

v. Garland, 59 F.4th 510, 515 (1st Cir. 2023) (quoting Lin v.

Mukasey, 521 F.3d 22, 26 (1st Cir. 2008)). In this instance, the

BIA did not expressly adopt the IJ's decision. Instead, it held

only that the IJ's finding on a dispositive issue was not clearly

erroneous. Our review thus focuses on the BIA's decision. See

id.

We review the BIA's legal conclusions de novo, albeit

with "some deference to the agency's reasonable interpretation of

statutes and regulations that fall within its sphere of authority."

Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). "Our

review of the factual findings of the agency proceeds pursuant to

the substantial evidence standard." Sanchez-Vasquez v. Garland,

994 F.3d 40, 46 (1st Cir. 2021). Under that deferential standard,

we accept the BIA's findings "so long as they are supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." Id. (quoting Perez-Rabanales v. Sessions,

881 F.3d 61, 65 (1st Cir. 2018)). Thus, we will uphold those

findings unless "the record is such as to compel a reasonable

- 5 - factfinder to reach a contrary determination." Id. (quoting Perez-

Rabanales, 881 F.3d at 65).

III

To secure withholding of removal, a noncitizen must

demonstrate a clear probability that, if removed to his homeland,

he would be persecuted on account of his race, religion,

nationality, membership in a particular social group, or political

opinion. See Barnica-Lopez v. Garland, 59 F.4th 520, 527-28 (1st

Cir. 2023); see also 8 U.S.C. § 1231(b)(3)(A). In order to

establish that such persecution awaits him, the noncitizen must

prove "a threshold level of past or anticipated serious harm, a

nexus between that harm and government action or inaction, and a

causal connection" between that harm and one of the statutorily

protected grounds. Barnica-Lopez, 59 F.4th at 528. That burden

can be satisfied by the petitioner's testimony if he is deemed

credible, although the IJ may also require the submission of

additional corroborating evidence, as long as it can reasonably be

expected that such evidence can be obtained. See 8 U.S.C.

§§ 1158(b)(1)(B)(ii); 1231(b)(3)(C).

The petitioner mounts four challenges in his petition

for review. First, he assigns error to the IJ's adverse

credibility determination. Second, he assigns error to the IJ's

determination that he is not a member of a particular social group

consisting of members of his own family who are opposed to the

- 6 - chieftain and corruption. Third, he argues that he is entitled to

withholding of removal because he is not free to return to his

family's farm in Ghana. Fourth, he assigns error to the BIA's

affirmance of the IJ's determination that the seizure of his

family's farm was not on account of a statutorily protected ground.

We address each of these challenges in turn.

A

The first two challenges can be quickly dispatched. The

BIA did not address either the IJ's credibility determination or

her rejection of the proposed definition of the social group to

which the petitioner allegedly belonged (comprising members of the

petitioner's own family who are opposed to the chieftain and

corruption). The BIA affirmed the IJ's decision exclusively on

the ground that the IJ did not clearly err in determining that the

harm the petitioner suffered was not causally connected to his

membership in a particular social group. In reaching this

determination, the BIA implicitly assumed that the petitioner was

credible and that he is a member of a particular social group. As

we are reviewing the decision of the BIA, see Aguilar-Escoto, 59

F.4th at 515, those assumptions hold here.1

1 We note that in one instance in his briefing, the petitioner recharacterizes his particular social group as members of his family "who have been deprived due to corruption from their patrimony." That group, albeit similar, would nonetheless be distinct from the particular social group that the petitioner proffered before the BIA. The petitioner, however, never argued

- 7 - B

As to his third challenge, the petitioner argues that

because 8 U.S.C. § 1231(b)(3)(A) prohibits the removal of a

noncitizen to a country in which the noncitizen's "life or freedom

would be threatened," he cannot lawfully be removed to Ghana as he

would lack the "freedom" there to return to his family's farm.

But this is too parochial a view, and the petitioner offers no

case law or other relevant authority to support the proposition

that so narrow a restriction on his freedom can amount to

persecution. It is firmly settled in our jurisprudence that

"arguments advanced in a perfunctory manner, unaccompanied by

citations to relevant authority, are deemed waived." Ahmed v.

Holder, 611 F.3d 90, 98 (1st Cir. 2010); see United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). That stricture is

controlling.2

to the BIA that he belonged to the former group, so a question of exhaustion emerges. Because the government has raised the exhaustion requirement and because the petitioner failed to argue before the BIA that he was a member of some additional social group, we find that such an argument is unexhausted. We therefore decline to consider it. See 8 U.S.C. § 1252(d)(1); see also Santos-Zacaria v. Garland, ___ S. Ct. ___, ___-___ (2023) [No. 21- 1436, slip op. at 3-11] (holding that administrative exhaustion requirement set forth by 8 U.S.C. § 1252(d)(1) is not jurisdictional in nature but, rather, a claims-processing rule subject to forfeiture and waiver). In all events, the case law is antithetic to the petitioner's 2

position. See Miranda-Bojorquez v. Barr, 937 F.3d 1, 5 (1st Cir. 2019) (explaining that government can rebut presumption that asylum applicant faces threat of future persecution in country of

- 8 - C

This brings us to the petitioner's fourth challenge,

which addresses the BIA's determination that the IJ did not commit

clear error in finding that the harm suffered by the petitioner

was not attributable to any statutorily protected ground. A causal

connection between the harm incurred and the petitioner's

statutorily protected ground exists only if the protected ground

"was 'one central reason' for the harm alleged." Sanchez-Vasquez,

994 F.3d at 47 (quoting Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir.

2008)). "[T]he statutorily protected ground need not be the sole

factor driving the alleged persecution . . . ." Barnica-Lopez, 59

F.4th at 528 (quoting Loja-Tene v. Barr, 975 F.3d 58, 61 (1st Cir.

2020)). But a "central reason" cannot be "incidental, tangential,

superficial, or subordinate to another reason for harm." Sanchez-

Vasquez, 994 F.3d at 47 (quoting Singh, 543 F.3d at 5).

The petitioner does not squarely address this issue in

his opening brief other than to suggest that because chieftains

play a significant role in Ghanaian governance, the BIA incorrectly

characterized the family's dispute with the chieftain as a personal

dispute unconnected to any statutorily protected ground. That

suggestion, though, conflates two different elements of the

persecution analysis: one element that requires a connection

his nationality by showing that he can relocate to different part of that country); see also 8 C.F.R. § 208.13(b)(1)(i)(B).

- 9 - between the harm suffered and government action or inaction and

another that requires that the harm be connected to a statutorily

protected ground. See Barnica-Lopez, 59 F.4th at 528.

The BIA decision is not contrary to the petitioner's

contention that the chieftain acted on behalf of the government.

The BIA simply stated that reprisals perpetrated by government

actors based on personal animosities are insufficient to establish

a causal connection between the alleged harm and a protected

ground. That statement is correct. See Sompotan v. Mukasey, 533

F.3d 63, 71 (1st Cir. 2008) ("Events that stem from personal

disputes are generally not enough to show the required nexus.").

And — mindful of the teachings of the case law — the BIA affirmed

the IJ's finding that the interpersonal conflict between the

petitioner's family and the chieftain was unconnected to a

statutorily protected ground for relief.

The petitioner demurs. Attempting to parry the BIA's

finding, he argues that it was legal error for the BIA to

countenance one motive for the chieftain's actions to the exclusion

of others. We agree, of course, that a noncitizen seeking relief

need not demonstrate an unalloyed motive for persecution. All

that is required is that a motive implicating a statutorily

protected ground be "'one central reason' for the harm alleged."

Sanchez-Vasquez, 994 F.3d at 47 (quoting Singh, 543 F.3d at 5).

- 10 - Here, however, the discussion is academic. The

petitioner waited until his reply brief to raise this argument.

It is thus waived. See Xin Qiang Liu v. Lynch, 802 F.3d 69, 75

(1st Cir. 2015).

IV

We need go no further. For the reasons elucidated above,

we deny the petition.

So Ordered.

- 11 -