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Aristene v. Garland

United States Court of Appeals, Ninth Circuit
Oct 21, 2022
No. 17-72361 (9th Cir. Oct. 21, 2022)

Opinion

17-72361

10-21-2022

YVENA ARISTENE, AKA Yunor Aritilma, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 19, 2022 San Francisco, California

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209-869-381

Before: S.R. THOMAS, M. SMITH, and KOH, Circuit Judges.

MEMORANDUM

Yvena Aristene, a native and citizen of Haiti, petitions for review of a Board of Immigration Appeals ("BIA") decision dismissing her appeal from an immigration judge's ("IJ") denial of asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Our jurisdiction is governed by 8 U.S.C. § 1252. Where, as here, the BIA cites Matter of Burbano, 20 I. &N. Dec. 872 (BIA 1994), in its decision and does not express disagreement with any part of the IJ's decision, the BIA adopts the IJ's decision in its entirety. See Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (citing Abebe v. Gonzales, 432 F.3d 1037, 1040-41 (9th Cir. 2005) (en banc)).

We review constitutional claims and questions regarding our own jurisdiction de novo. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008) (per curiam). We review for substantial evidence the agency's denial of withholding of removal, asylum, and CAT relief, Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019), meaning we must accept the agency's findings as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," Garland v. Ming Dai, 141 S.Ct. 1669, 1677 (2021) (quoting 8 U.S.C. § 1252(b)(4)(B)).

We dismiss in part and deny in part the petition for review.

I

The IJ did not err in concluding that Aristene has not proven her eligibility for withholding of removal because, assuming without deciding that her particular social group were cognizable, she was not a member of it. Substantial evidence supports the BIA's finding that Aristene was not a member of "married women in Haiti who are unable to leave their relationship" because she had not seen or spoken to her husband in more than three years, and she was able to travel freely to Brazil and the United States without interference from her husband.

In her petition for review, Aristene urges consideration of a different proposed particular social group. However, because this argument was not presented to the agency, we lack jurisdiction to consider it. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam).

II

For the same reason, Aristene's asylum claim fails. The IJ's determination in the withholding analysis that Aristene was not a member of her proposed particular social group likewise precludes her from receiving asylum. We therefore do not decide whether there was error in the IJ's firm-resettlement analysis because any potential error was harmless. See Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (holding that remand is not required if it "would be an idle and useless formality" (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion)).

III

Substantial evidence supports the agency's determination that Aristene is not eligible for CAT relief because she has not shown that she is more likely than not to be tortured with the acquiescence of the government if returned to Haiti or Brazil. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836-37 (9th Cir. 2016) (noting that this Court has "reversed agency determinations that future torture is not likely only when the agency failed to take into account significant evidence establishing government complicity in the criminal activity"); id. at 836 ("[I]nability to bring the criminals to justice is not evidence of [governmental] acquiescence.").

IV

We lack jurisdiction over Aristene's claim that the IJ violated her procedural due-process rights by failing to develop the record regarding (1) the threat her husband posed to her in Brazil and (2) her newly proposed particular social group, as well as the alleged lack of "adequate translation" she received during her proceedings. Procedural due-process challenges that can be remedied by the agency must be raised before it. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002).

We apply the exhaustion requirement leniently to petitioners who proceeded pro se before the BIA. See, e.g., Ren v. Holder, 648 F.3d 1079, 1083-84 (9th Cir. 2011). But even under this lenient standard, Aristene failed to put the BIA on notice of her procedural due-process claims. Aristene's appeal to the BIA challenged the substance of the IJ's decision, rather than the process of her hearing.

PETITION DISMISSED in part, DENIED in part. Aristene's motion to supplement the record is DENIED.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).


Summaries of

Aristene v. Garland

United States Court of Appeals, Ninth Circuit
Oct 21, 2022
No. 17-72361 (9th Cir. Oct. 21, 2022)
Case details for

Aristene v. Garland

Case Details

Full title:YVENA ARISTENE, AKA Yunor Aritilma, Petitioner, v. MERRICK B. GARLAND…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 21, 2022

Citations

No. 17-72361 (9th Cir. Oct. 21, 2022)