Sirak Eyob v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2021
• Docket: 20-73676
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 13 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIRAK EYOB, No. 20-73676

Petitioner, Agency No. A203-679-648

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

Respondent.

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

Submitted December 6, 2021** Pasadena, California

Before: W. FLETCHER, RAWLINSON, and OWENS Circuit Judges.

Sirak Eyob (Eyob), a native and citizen of Eritrea, petitions for review of an

order from the Board of Immigration Appeals (BIA) affirming, without opinion,

the decision of the Immigration Judge (IJ) finding his asylum application frivolous,

* 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). and denying asylum, withholding of removal and relief under the Convention

Against Torture (CAT). We DENY his petition in part and DISMISS in part.

1. “Because the BIA affirmed without opinion, the IJ’s order constitutes the

final agency determination that we review. . .” Halaim v. I.N.S., 358 F.3d 1128,

1131 (9th Cir. 2004) (citation omitted).

2. We lack jurisdiction to hear Eyob’s ineffective assistance of counsel claim

because this claim was not raised before the BIA. See Ontiveros-Lopez v. I.N.S.,

213 F.3d 1121, 1124 (9th Cir. 2000) (“We . . . require an alien who argues

ineffective assistance of counsel to exhaust his administrative remedies by first

presenting the issue to the BIA.”) (citations omitted); see also 8 U.S.C. §

1252(d)(1). We also lack jurisdiction to consider Eyob’s arguments regarding the

Report of Investigation not being served prior to the hearing because Eyob failed to

raise this issue before the BIA. See Sola v. Holder, 720 F.3d 1134, 1136 (9th Cir.

2013) (per curiam) (“Challenges to procedural errors correctable by the

administrative tribunal, must be exhausted before we undertake review.”) (citation

and alteration omitted).

3. We review de novo a determination that an applicant knowingly made a

frivolous asylum application by assessing compliance with the BIA’s procedural

framework. See Kulakchyan v. Holder, 730 F.3d 993, 995 (9th Cir. 2013) (per

2 curiam). “The BIA’s framework requires compliance with the following

safeguards: (1) notice to the alien of the consequences of filing a frivolous

application; (2) a specific finding that the alien knowingly filed a frivolous

application; (3) sufficient evidence in the record to support the finding that a

material element of the asylum application was deliberately fabricated; and (4) an

indication that the alien has been afforded sufficient opportunity to account for any

discrepancies or implausible aspects of the claim.” Id. at 995 n.1 (citing Matter of

Y–L–, 24 I. & N. Dec. 151 (B.I.A. 2007)). As discussed below, the IJ complied

with this procedural framework. See id. at 996.

4. Eyob was given notice of the consequences of filing a frivolous

application both at the hearing and on the application form. See Cheema v. Holder,

693 F.3d 1045, 1049 (9th Cir. 2012) (concluding that “the written warning on the

asylum application adequately notifies the applicant of . . . the consequences of

knowingly filing a frivolous application for asylum”).

5. The IJ’s finding that Eyob knowingly filed a frivolous application, is

supported by sufficient evidence in the record. A material element of Eyob’s

asylum application–that he was detained in Eritrea in November 2017–was

deliberately fabricated because Eyob was residing in Germany at that time. See

Fernandes v. Holder, 619 F.3d 1069, 1076 (9th Cir. 2010) (upholding the BIA’s

3 conclusion that the petitioner knowingly filed a frivolous application when it

contained fabrications). Eyob was provided sufficient opportunity to account for

any discrepancies or implausible aspects of his claim, but chose to categorically

deny the discrepancies rather than provide explanations. See Ahir v. Mukasey, 527

F.3d 912, 918 (9th Cir. 2008) (“[W]hen asked to respond to the discrepancies,

[petitioner] either failed to explain, failed to even respond, or further contradicted

her application. . . .”) (alteration and internal quotation marks omitted).1

6. “We review for substantial evidence the factual findings underlying the

BIA’s determination that a petitioner is not eligible for withholding of

removal. . . .” Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013) (citation

omitted). Review under the substantial evidence standard is “highly deferential.”

Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000) (citation omitted). We

will not disturb the IJ’s findings unless “‘the evidence not only supports . . . but

compels’ reversal.” Id. (citation omitted) (emphases in the original).

7. Substantial evidence supports the IJ’s decision to deny Eyob’s application

for withholding of removal for failure to demonstrate a clear probability of

persecution based on his political opinion. See Garcia-Milian v. Holder, 755 F.3d

1 These findings also provide substantial evidence to support the adverse credibility determination. 4 1026, 1031-33 (9th Cir. 2014), as amended. Although Eyob testified that he was

“sho[t] at” and that the Eritrean government was going to “kill [him] by the use of

bombs,” substantial evidence supports the IJ’s determination that he failed to

establish this harm was based on his political opinion, rather than his attempt to

cross the Eritrean border illegally. See Kaiser v. Ashcroft, 390 F.3d 653, 660 (9th

Cir. 2004) (requiring a showing of probable persecution “on account of a protected

ground”).

8. Eyob waived any challenge to the IJ’s denial of his application for

protection under CAT by failing to support that challenge with argument in his

opening brief. See Martinez–Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)

(“Issues raised in a brief that are not supported by argument are deemed

abandoned. . . .” ) (citation omitted).

PETITION DENIED in part and DISMISSED in part.2

Eyob’s motion for stay filed on December 16, 2020 is DENIED as moot.

2 Because we deny the petition on other grounds, we do not address the Third Country Transit Bar basis for denial of relief. 5