OSCAR v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-17No. No. 20-72142

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court upheld the agency's denials of asylum, withholding of removal, and Convention Against Torture relief because substantial evidence supported the factual findings and the legal conclusions that Oscar failed to establish persecution, a cognizable particular social group, or a nexus to a protected ground, and failed to meet the threshold for torture.

Sylvestre Oscar, a Haitian national, sought judicial review of immigration decisions denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture. The court examined whether substantial evidence supported the agency's factual findings and whether the immigration judge and Board of Immigration Appeals properly applied legal standards to Oscar's claims.

The court found that the record contained substantial evidence that the harm Oscar experienced or feared did not constitute persecution under asylum law. The court also determined that Oscar's proposed social group—Haitians who refuse gang membership—was not cognizable as a matter of law, and that he failed to establish a nexus between any feared harm and a protected ground such as political opinion or membership in a particular social group. Additionally, Oscar did not demonstrate that he would more likely than not face torture by the Haitian government or with its consent, which is required for Convention Against Torture relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether harm experienced constitutes persecution under asylum law
Whether a particular social group based on refusal to join gangs is cognizable
Whether feared harm has nexus to a protected ground
Whether applicant established likelihood of torture by government

Procedural posture

Oscar petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his asylum, withholding of removal, and Convention Against Torture applications.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Sylvestre Oscar, a native and citizen of Haiti, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

Substantial evidence supports the agencys determination that the harm Oscar experienced did not rise to the level of persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028-29 (9th Cir. 2019) (record did not compel finding that harm rises to the level of persecution where perpetrators took no violent actions against the petitioner or his family beyond threats).

The BIA did not err in its determination that Oscar waived any challenge to the IJs conclusion that his proposed particular social group of “Haitians who refuse to join the gangs, or be a gang member in Haiti” is not cognizable. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIAs waiver determination).

Substantial evidence supports the BIAs determination that Oscar did not otherwise establish that the harm he fears would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicants “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”).

We lack jurisdiction to consider Oscars contentions regarding pattern or practice of persecution because he did not raise them 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).

To the extent Oscar contends that the BIA violated his right to due process and erred by not addressing firm resettlement, his contention fails. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach). We do not address Oscars contentions as to the IJs firm resettlement determination because the BIA did not deny relief on that ground. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” (citation and internal quotation marks omitted)).

Thus, Oscars asylum and withholding of removal claims fail.

Substantial evidence supports the agencys denial of CAT relief because Oscar failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Haiti. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.