Yosvany Alonso Elizalde v. Merrick Garland

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS YOSVANY ALONSO ELIZALDE, No. 20-72079 Agency No. A213-352-781 Petitioner,

v. ORDER MERRICK B. GARLAND, Attorney General,

Respondent.

YOSVANY ALONSO ELIZALDE, No. 22-524 Agency No. A213-352-781 Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.

The Memorandum Disposition filed on April 28, 2023 is withdrawn and

replaced with a new Memorandum Disposition filed concurrently with this order.

With this order, Judge Tallman and Judge Nelson vote to deny the petition

for panel rehearing. Judge Forrest votes to grant the petition for panel rehearing.

Judge Nelson and Judge Forrest vote to deny the petition for rehearing en banc,

and Judge Tallman so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petitions for panel rehearing and rehearing en banc, Dkt. No. 52, are

DENIED. No further petitions for rehearing will be accepted.

2 20-72079, 22-524 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YOSVANY ALONSO ELIZALDE, No. 20-72079 Agency No. A213-352-781 Petitioner,

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

YOSVANY ALONSO ELIZALDE, No. 22-524 Agency No. A213-352-781 Petitioner,

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

Argued and Submitted March 29, 2023 Moscow, Idaho

Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges. Partial Concurrence and Partial Dissent by Judge FORREST.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Yosvany Alonso Elizalde, a native and citizen of Cuba, petitions for review

of two orders of removal by the Board of Immigration Appeals (BIA) affirming

an Immigration Judge’s (IJ) denial of his application for asylum under the

Immigration and Nationality Act.1

1. The IJ held that Elizalde failed to meet the standard for asylum and

that the Third Country Transit Rule separately barred his asylum application. In

June 2020, the BIA affirmed without opinion. While Elizalde’s petition for

review of the BIA’s decision was pending before us in October 2021, the BIA

sua sponte reopened and vacated its June 2020 decision because the Third

Country Transit Rule had been enjoined by a federal district court. The BIA

issued a new decision, affirming the IJ “for the reasons stated in the [IJ’s]

decision” and expressly disclaimed reliance on the Third Country Transit Rule.

We determine our own jurisdiction de novo. Saavedra-Figueroa v.

Holder, 625 F.3d 621, 623 (9th Cir. 2010). Elizalde contends that we retain

jurisdiction over the BIA’s June 2020 decision. We disagree. “Once a petition

for review has been filed, federal court jurisdiction is divested . . . where the BIA

subsequently vacates . . . the decision under review.” Plasencia-Ayala v.

Mukasey, 516 F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by

Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc);

1 Elizalde also sought withholding of removal and relief under the Convention Against Torture (CAT) before the agency. Elizalde’s brief does not challenge the agency’s denial of those claims. Accordingly, any challenges to them are waived. Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013).

2 20-72079, 22-524 accord Saavedra-Figueroa, 625 F.3d at 624. The BIA vacated its June 2020

decision, so we dismiss the portion of Elizalde’s petition challenging that decision

for lack of jurisdiction.

2. Elizalde also claims that the IJ did not fulfill his duty to develop the

record for a pro se asylum applicant. See Agyeman v. INS, 296 F.3d 871, 876–77

(9th Cir. 2002). We hold that Elizalde did not exhaust this claim, as required by

8 U.S.C. § 1252(d)(1). See id. at 877; see also Umana-Escobar v. Garland, ---

F.4th ---, 2023 WL 3606117, at *5 (9th Cir. 2023). Though pro se litigants are

held to a lower standard and need not use “the correct legalese,” they still must

“put the BIA on notice of the contested issues.” Gonzalez-Castillo v. Garland,

47 F.4th 971, 980 (9th Cir. 2022) (citation omitted). Elizalde’s statements that

he “wasn’t able to provide enough evidence in time on [his] court” appearance

before the IJ, that his “last hope is with [his] testimony,” and his request to “hear

[his] story” did not put the BIA on notice that Elizalde believed he was denied a

full and fair hearing. Thus, his claim fails as unexhausted. See Umana-Escobar,

2023 WL 3606117, at *5. Further, an alleged lack of opportunity to present a

case is not a constitutional error that triggers an exception to the exhaustion

requirement, but a mere procedural error that is correctable by the agency. See

Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam).

Even if Elizalde exhausted his claim, the IJ satisfied his duty to develop

the record. The IJ’s minor interruptions did not “prevent[] the introduction of

significant testimony.” See Oshodi v. Holder, 729 F.3d 883, 890 (9th Cir. 2013)

3 20-72079, 22-524 (citation omitted). By giving Elizalde the opportunity to present his claim in

narrative form, asking clarification questions to elicit details, and offering

Elizalde the last word to explain why he should prevail, the IJ satisfied his

obligations. See Gonzalez-Castillo, 47 F.4th at 983.

3. Last, Elizalde argues that the BIA erred by denying his asylum

claim. We review the BIA’s denial of asylum for substantial evidence and reverse

only if “the evidence not only supports a contrary conclusion, but compels it.”

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration

adopted) (citation omitted). Where, as here, the BIA relies in part on the IJ’s

reasoning, we review both decisions. Singh v. Holder, 753 F.3d 826, 830 (9th

Cir. 2014). A person may qualify for asylum “either because he or she has

suffered past persecution or because he or she has a well-founded fear of future

persecution.” 8 C.F.R. § 208.13(b).

The IJ held that the harm Elizalde experienced did not rise to the level of

past persecution and the BIA affirmed. This conclusion is supported by

substantial evidence. See Sharma v. Garland, 9 F.4th 1052, 1063 (9th Cir. 2021).

The record does not compel the conclusion that Elizalde’s two separate

encounters with the police (involving temporary detention, minor physical

mistreatment, and the shutdown of his workplace) amounted to persecution. See

id. at 1064 (no past persecution where the police “ruined” the petitioner’s

business); Gu v. Gonzales, 454 F.3d 1014, 1017–21 (9th Cir. 2006) (no past

persecution where the petitioner was detained at a police station by authorities for

4 20-72079, 22-524 three days, interrogated for two hours, and repeatedly hit with a rod but required

no medical treatment).

Elizalde maintains that the IJ ignored the cumulative impact of his past

harm, an issue we review de novo. Salguero Sosa v. Garland, 55 F.4th 1213,

1219 (9th Cir. 2022). The record belies Elizalde’s assertion. The IJ recounted

the key portions of Elizalde’s testimony and held that “accepting all the

respondent’s testimony as true, the Court must deny his application.” The IJ’s

decision sufficiently demonstrates that he considered the cumulative effect of

Elizalde’s past harm.

Elizalde also argues that the IJ failed to analyze whether he had a

well-founded fear of future persecution. But the IJ’s decision sufficiently

demonstrates that he did address future persecution. The IJ was not required “to

write an exegesis on every contention.” See Najmabadi v. Holder, 597 F.3d 983,

990 (9th Cir. 2010) (citation omitted). “What is required is merely that [the IJ]

consider the issues raised, and announce its decision in terms sufficient to enable

a reviewing court to perceive that it has heard and thought and not merely

reacted.” Id.

Here, the IJ began his analysis by stating that “the respondent would have

to prove that he has a past persecution or that he has a reasonable possibility of

future persecution” and concluded that “he has not shown that he meets the legal

test for asylum.” Then, after addressing Elizalde’s past harm, the IJ denied

withholding of removal and CAT relief because Elizalde had not shown future

5 20-72079, 22-524 persecution or torture. The IJ concluded, “Having not met the factual or legal

burden for asylum . . . the respondent would necessarily fail the higher burden for

withholding . . . .”

The higher burden for withholding refers to the likelihood of future

persecution. Withholding of removal requires that future persecution be “more

likely than not,” while asylum requires only a “reasonable possibility” of future

persecution. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019)

(citations omitted). Thus, the IJ’s holding that Elizalde did not meet his burden

for asylum and therefore failed to meet the higher burden for withholding

necessarily implies that the IJ concluded that Elizalde did not show a reasonable

possibility of future persecution under the asylum standard. The IJ’s decision

sufficiently demonstrated that he considered the issue and concluded that Elizalde

had not shown a reasonable possibility of future persecution. 2 See id.;

2 The dissent asserts that we reach this holding by piecing together only the IJ’s acknowledgment that past persecution and future persecution provide separate avenues for asylum relief and its conclusion that Elizalde failed to meet the asylum standard. But that is not all we rely on. The dissent overlooks the IJ’s holding that “Having not met the factual or legal burden for asylum . . . the respondent would necessarily fail the higher burden for withholding . . . .” The dissent correctly explains that failing to meet the standard for withholding of removal or CAT relief does not necessarily mean a petitioner has failed to meet the asylum standard. But failing to meet the asylum standard means a petitioner also fails to meet the withholding standard, and that is precisely what the IJ held here. See Duran-Rodriguez, 918 F.3d at 1029. This holding only makes sense if the IJ concluded that Elizalde did not show a reasonable possibility of future persecution. See id. The IJ’s analysis is sufficient to establish that the agency “consider[ed] the issues raised” and “has heard and thought and not merely reacted.” See Najmabadi, 597 F.3d at 990.

6 20-72079, 22-524 Najmabadi, 597 F.3d at 990.

The IJ’s conclusion is supported by substantial evidence. Elizalde’s

testimony that he would be monitored and that he would be imprisoned if he could

not find work within 30 days of returning to Cuba does not compel us to reach a

conclusion contrary to the agency’s. See Sharma, 9 F.4th at 1062–63 (“[M]ere

economic disadvantage alone does not rise to the level of persecution.” (citations

omitted)); id. at 1065–66 (characterizing the possibility that the police would

have a continuing interest in the petitioner as “speculative”).3

PETITION DENIED in part and DISMISSED in part.

3 Because the agency’s past and future persecution holdings are sufficient to deny Elizalde’s asylum petition, we need not address the agency’s nexus holding.

7 20-72079, 22-524 FILED JUN 26 2023 Elizalde v. Garland, Nos. 20-72079 and 22-524 Forrest, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree that we lack jurisdiction over Case No. 20-72079. I respectfully

disagree, however, that the Board of Immigration Appeals (BIA) properly addressed

Petitioner Yosvany Alonso Elizalde’s argument that he is entitled to asylum because

he has a well-founded fear of future persecution if removed to Cuba. Therefore, I

would grant the petition in Case No. 22-524 in part and remand Elizalde’s asylum

claim to the BIA.

It is well-established that “where the BIA has not made a finding on an

essential asylum issue, the proper course of action for a court of appeals is to remand

the issue to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.

2004). Because a well-founded fear of future persecution provides a “separate

avenue[]” for asylum relief, Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir. 1996),

we have stressed that “the likelihood of future persecution is a particularly important

factor to consider” when “determining whether to grant asylum,” Kalubi v. Ashcroft,

364 F.3d 1134, 1141 (9th Cir. 2004) (emphasis added) (citation omitted). And we

have consistently remanded cases where the immigration judge (IJ) or BIA failed to

address whether a petitioner had a well-founded fear of future persecution. See, e.g.,

Regalado-Escobar v. Holder, 717 F.3d 724, 729 (9th Cir. 2013) (remanding for the

BIA to determine whether petitioner established a well-founded fear of future

persecution where the BIA “rejected this [argument] without explanation”); Mendez- 1 Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir. 2003) (remanding for the BIA to

“determine in the first instance whether [petitioner] has shown a well-founded fear

of persecution”); Chen, 362 F.3d at 621–22 (similar).

The court is correct that the agency need not “write an exegesis” before we

will consider a claim to have been addressed. Mem. Disp. at 5. But the BIA must

“state its reasons and show proper consideration of all factors when weighing

equities and denying relief.” Kalubi, 364 F.3d at 1140 (citation omitted). “This

means that the BIA must explain what factors it has considered or relied upon

sufficiently that we are able to discern that it has heard, considered, and decided” an

issue. Id. at 1140–41 (internal quotation marks and citation omitted). In the absence

of any such “explanation” or “reasoning,” the proper course is to remand for the

agency to decide the issue in the first instance. See Regalado-Escobar, 717 F.3d at

729; see also Mendez-Gutierrez, 340 F.3d at 870 (“[I]t is not for us to determine in

the first instance whether [a petitioner] has shown a well-founded fear of

persecution.”).

Here, I cannot conclude that the BIA “heard, considered, and decided”

Elizalde’s fear-of-future-persecution argument as relates to his asylum claim. See

Kalubi, 364 F.3d at 1140–41. Where the BIA relied upon and “expressed agreement

with the reasoning of the IJ,” we review “both the IJ and the BIA’s decisions.”

Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013). Because in this case the BIA

2 affirmed on the merits “for the reasons stated in the [IJ’s] decision” and did not

provide any of its own reasoning, we can look only to the IJ’s decision to determine

whether Elizalde’s fear-of-future-persecution argument was properly considered.

The IJ’s decision demonstrates that it failed to address Elizalde’s fear of future

persecution. Elizalde argued that he suffered past persecution based on incidents in

2015 and 2017 where he was detained by Cuban police in both instances and was

physically harmed by the police in 2015. He also asserted that he fears he will be

persecuted and arrested in Cuba because he is viewed poorly by the Cuban

government and will be unable to find a job due to his lack of military service. While

the IJ acknowledged that Elizalde could obtain asylum by showing either past

persecution or a reasonable possibility of future persecution and specifically found

that Elizalde “does not have any level of harm or threats that constitute a past

persecution,” the IJ made no similar finding as to Elizalde’s asserted fear of future

persecution. Moreover, when the IJ addressed Elizalde’s nexus argument, it

referenced only the 2015 and 2017 incidents underlying Elizalde’s past persecution

claim. The IJ ended its merits analysis of Elizalde’s asylum claim—without any

specific mention of Elizalde’s assertion that he fears future persecution—by

summarily concluding that Elizalde “did not meet the factual basis or the legal basis

for asylum.”

3 Turning to Elizalde’s claims for withholding of removal and relief under the

Convention Against Torture (CAT), the IJ did directly discuss Elizalde’s fear of

future persecution, stating that “it could not find that [Elizalde] has a more likely

than not chance of a future persecution” and that Elizalde “is not likely to be tortured

in [Cuba] by any government official.” But these findings do not establish that the

IJ addressed Elizalde’s fear of future persecution as relates to his asylum claim.

Although “[a]n applicant who fails to satisfy the lower standard for asylum

necessarily fails to satisfy the more demanding standard for withholding of

removal,’” Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020), the reverse is not

true.

To obtain withholding of removal, a petitioner must “prove that it is more

likely than not they will be persecuted.” Barajas-Romero v. Lynch, 846 F.3d 351,

360 (9th Cir. 2017) (emphasis added) (citing 8 C.F.R. § 208.16). And CAT relief is

available only if a petitioner shows that it is “more likely than not that he or she

would be tortured if removed to the proposed country.” Id. at 361 (emphases added)

(quoting 8 C.F.R. § 208.16(c)(2)). But for asylum, a petitioner need only show a

“well-founded fear of future persecution,” Duran-Rodriguez v. Barr, 918 F.3d 1025,

1028 (9th Cir. 2019) (emphasis added), which “does not require certainty of

persecution or even a probability of persecution,” Hoxha v. Ashcroft, 319 F.3d 1179,

1184 (9th Cir. 2003). “Even a ten percent chance of future persecution may establish

4 a well-founded fear.” Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018)

(citation omitted).

Given the “more lenient” standard for asylum, Florez-de Solis v. INS, 796

F.2d 330, 333 (9th Cir. 1986), “[e]vidence may compel a finding that a fear of

persecution is well-founded, even where that same evidence does not compel a

finding that persecution will be more likely than not to occur,” Lim v. INS, 224 F.3d

929, 938 (9th Cir. 2000). Indeed, it is common for claims that succeed under the

more lenient asylum standard to fail under the heightened burden of proof required

for withholding or relief under CAT. See, e.g., Kaiser v. Ashcroft, 390 F.3d 653, 660

(9th Cir. 2004) (“Although Petitioners have a reasonable fear of persecution, we

cannot say that such persecution will happen, in the sense of being more likely than

not.” (internal quotation marks and citation omitted)); Hoxha, 319 F.3d at 1184–85

(“Although the BIA erred in holding that [petitioner] was not eligible for asylum, it

did not err in ruling that he failed to qualify for mandatory withholding of

deportation.”); Gui v. INS, 280 F.3d 1217, 1230 (9th Cir. 2002) (“Although

[petitioner]’s fear is well-founded, he is not able to demonstrate that it is more likely

than not that he will be persecuted . . . .”).

Accordingly, that the IJ denied withholding of removal and CAT relief

because Elizalde did not meet the requisite future-persecution standards for those

claims does not establish that the IJ sufficiently addressed Elizalde’s future-

5 persecution argument related to his asylum claim when the IJ was completely silent

on this point. Nor can we divine that the IJ would necessarily deny Elizalde’s claim

for asylum for failure to show a well-founded fear of persecution because the IJ

found that Elizalde failed to meet the standard for withholding of removal and CAT.

See Bartolome, 904 F.3d at 809.

The court concludes that the BIA sufficiently considered whether Elizalde had

a well-founded fear of future persecution for purposes of asylum by piecing together

(1) the IJ’s acknowledgement that past persecution and future persecution provide

separate avenues for asylum relief, and (2) the IJ’s generic statements that Elizalde

failed to “meet[] the legal test for asylum.” Mem. Disp. at 5–6. Specifically, the court

reasons that because “failing to meet the asylum standard means a petitioner also

fails to meet the withholding standard,” the IJ must have concluded that Elizalde did

not show a reasonable possibility of future persecution. Mem. Disp. at 6 n.2. But

simply reciting the two legal standards for obtaining asylum and summarily

concluding that Elizalde “has not shown that he meets the legal test for asylum” does

not provide a “reasoned basis” for the agency’s decision. See Villanueva-Franco v.

I.N.S., 802 F.2d 327, 330 (9th Cir. 1986) (noting that the BIA is required “to provide

more than mere conclusory statements” (internal quotation marks and citation

omitted)). And the conclusion that the court identifies does not appear anywhere in

the IJ’s decision. See generally Delmundo v. INS, 43 F.3d 436, 442 (9th Cir. 1994)

6 (noting that “the BIA is not assumed to have considered factors that it failed to

mention in its decision” (internal quotation marks and citation omitted)). Our review

is constrained to the grounds relied upon by the agency. See Sanchez Rosales v. Barr,

980 F.3d 716, 719 (9th Cir. 2020). Because I do not see as much in the IJ’s decision

as the court does, I would remand for the BIA to properly address whether Elizalde

has shown that he has a well-founded fear of future persecution in Cuba. I

respectfully dissent in part.