Wisam Asso v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2021
• Docket: 19-72426
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WISAM ABLAHAD ASSO, AKA Pioter No. 19-72426 Violgos, Agency No. A208-598-666 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 20, 2021** Pasadena, California

Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.

Wisam Ablahad Asso petitions for review the Board of Immigration

Appeals’ (“BIA”) order dismissing an appeal from the decision of the Immigration

Judge denying asylum, withholding of removal, and 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). relief. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We deny the

petition.

Our review is limited—factual findings supporting the BIA’s decision that

an applicant has not established eligibility for asylum, withholding of removal, or

relief under CAT are reviewed for substantial evidence. Madrigal v. Holder, 716

F.3d 499, 503 (9th Cir. 2013). In order to reverse the BIA, the evidence must

compel a different conclusion from the one reached by the BIA. Xochihua-Jaimes

v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).

Asso argues that the BIA improperly concluded that the evidence he

submitted was insufficient to establish that the conditions of his residence in

Mexico were too restricted for him to be resettled. Specifically, Asso argues that

the BIA improperly discounted his principal evidence, an article documenting

refugee conditions in Mexico. While it is true that the article is actually dated

2007—and not undated as the BIA asserted—an article over a decade old could

still be found unpersuasive. The BIA did consider the article and did find it

insufficient to rebut the prima facie evidence of firm resettlement—the grant of

asylum by Mexico. Nothing in the record compels a contrary result. See id.

2 Asso additionally challenges the BIA’s determination that his entry into

Mexico was not a necessary consequence of his flight from persecution. Asso

asserts that individuals fleeing persecution are often unable to find safety in the

first country that they arrive at. While this may be true, it does not apply to Asso’s

travel to Mexico. Before entering Mexico, Asso lived safely in Germany,

receiving government assistance for food and housing, and was never told to leave.

As such, we cannot say that Asso’s entry into Mexico was a “necessary

consequence” of his flight from persecution. E. Bay Sanctuary Covenant v.

Garland, 994 F.3d 962, 972 (9th Cir. 2020).

Asso also challenges the BIA’s denial of withholding of removal. In

particular, he asserts that the BIA erred in determining that he had failed to meet

his high burden of demonstrating a pattern or practice of persecution against Iraqi

Christians. While Asso did present evidence of violence against Christians in

Iraq—perhaps enough that a different fact finder might have found the other

way—our review does not permit us to substitute our judgment for that of the

BIA’s. Aden v. Holder, 589 F.3d 1040, 1046 (9th Cir. 2009). And the fact that

Asso’s brother, also a Christian, returned to Iraq six months prior to Asso’s merits

hearing and had suffered no harm undercuts his withholding of removal claim.

3 Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010). Additionally, Asso

himself returned for visits to Iraq several times, which the BIA was entitled to

consider as evidence undermining his persecution claim. Id.

Finally, Asso contends that substantial evidence does not support the BIA’s

denial of relief under the Convention Against Torture. As with the withholding of

removal claim, Asso presented evidence of human rights abuses committed by

Muslim extremist groups against religious and ethnic minorities in Iraq. We do not

find, however, that the evidence compels us to overturn the BIA’s determination

that Asso will not more likely than not be tortured in Iraq. Id. at 1095.

PETITION DENIED