Syedo Obotimbe v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2018
• Docket: 14-71191
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SYEDO OBOTIMBE, No. 14-71191

Petitioner, Agency No. A205-534-121

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Syedo Obotimbe, a native of Côte d’Ivoire and a citizen of Mali, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

his appeal from an immigration judge’s decision denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture

* 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). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d

1066, 1070 (9th Cir. 2008). We dismiss in part and deny in part the petition for

review.

We lack jurisdiction to consider any challenges to the BIA’s denial of

Obotimbe’s motion to reopen because he did not file a petition for review of that

order. See Andia v. Ashcroft, 359 F.3d 1181, 1183 n. 3 (9th Cir. 2004) (petitioner

must file a separate petition for review from denial of motion to reopen).

We also lack jurisdiction to consider Obotimbe’s contention that he was not

deportable because he failed to raise the issue before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review

claims not presented to the agency).

We do not consider the materials Obotimbe filed with this court that are not

part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.

1996) (en banc) (court’s review is limited to “the administrative record upon which

the [removal] order is based”) (internal quotation and citation omitted).

Obotimbe claims he suffered past harm and fears future persecution in Côte

d’Ivoire. He does not claim that he was or would be persecuted in Mali.

2 14-71191 Substantial evidence supports the agency’s conclusion that, even if he had

shown he was a citizen of Côte d’Ivoire, Obotimbe did not establish the harm he

suffered in Côte d’Ivoire from supporters of ex-President Gbagbo rose to the level

of persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005)

(record did not compel the conclusion that petitioner’s past harm constituted

persecution); see also Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006)

(brief detention, beating and interrogation did not compel a finding of past

persecution). Substantial evidence also supports the agency’s finding that

Obotimbe failed to demonstrate that his fear of future persecution in Côte d’Ivoire

was objectively reasonable. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.

2003) (possibility of future persecution “too speculative”). Thus, Obotimbe’s

asylum claim fails.

In this case, because Obotimbe failed to establish eligibility for asylum, he

failed to demonstrate eligibility for withholding of removal. See Zehatye v.

Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

Substantial evidence supports the agency’s denial of CAT relief because

Obotimbe failed to establish it is more likely than not he will be tortured if returned

to Côte d’Ivoire. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011)

3 14-71191 (possibility of torture too speculative).

We reject Obotimbe’s request that his case be remanded to the BIA.

Finally, Obotimbe’s motion for assignment of pro-bono counsel (Docket

Entry No. 38) is denied.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

4 14-71191