Wisnel Joseph Estime v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 2020
• Docket: 18-71312
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WISNEL JOSEPH ESTIME, No. 18-71312

Petitioner, Agency No. A209-869-314

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

Respondent.

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

Submitted July 1, 2020**

Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.

Petitioner Wisnel Joseph Estime, a native and citizen of Haiti, petitions for

review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal

from an Immigration Judge’s (IJ) denial of his application for asylum, withholding

of removal, and relief under the Convention Against Torture (CAT). We have

* 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). jurisdiction under 8 U.S.C. § 1252. We deny the petition in part and dismiss in

part.

“Where, as here, the BIA adopts the IJ’s decision while adding its own

reasons, [we] review[] both decisions.” Vahora v. Holder, 641 F.3d 1038, 1042

(9th Cir. 2011). “We review denials of asylum, withholding of removal, and CAT

relief for substantial evidence and will uphold a denial supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Ling

Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (internal quotation marks

omitted). We review questions of law, including due process claims, de novo.

Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014).

1. Substantial evidence supports the denial of Estime’s claims for asylum and

withholding of removal. See Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir.

2014) (stating substantial evidence standard). The record does not compel the

conclusion that Estime was credible. See id. (stating that courts must uphold

adverse credibility findings unless “the evidence not only supports [a contrary]

conclusion, but compels it”). On several issues, Estime’s testimony was either

internally inconsistent or inconsistent with his prior statements. His explanation

for those inconsistencies was not persuasive.

2 2. Substantial evidence also supports the denial of Estime’s claim for CAT

relief because the record does not compel the conclusion “that it is more likely than

not that he . . . would be tortured if removed to the proposed country of removal.”

8 C.F.R. § 1208.16(c)(2); see also Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.

2003) (finding denial of CAT relief supported by substantial evidence where the

petitioner was not found credible).

3. Estime waived his due process claims by failing to exhaust them before the

BIA. See 8 U.S.C. § 1252(d)(1) (allowing appellate review of issues only if “the

alien has exhausted all administrative remedies available to the alien as of right”);

Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004) (requiring exhaustion of

due process claims concerning the denial of opportunity to present case and

deprivation of right to counsel); Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987)

(“a petitioner cannot obtain review of procedural errors in the administrative

process that were not raised before the agency merely by alleging that every such

error violates due process” (internal quotation marks omitted)). Accordingly, we

lack jurisdiction over those claims and dismiss the petition as to them.

PETITION DENIED IN PART and DISMISSED IN PART.