NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUNIOR EXAVEAU, No. 17-72470 Petitioner, Agency No. A209-869-312 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 16, 2020** Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges. Junior Exaveau, 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”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant in part, deny in * 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). part, dismiss in part, and remand for further proceedings. Our review is limited to those grounds the BIA relied on in rendering its decision. Santiago–Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011); cf. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (explaining that we “cannot affirm the BIA on a ground upon which it did not rely” (internal quotation marks omitted)). Our review is limited to the BIA’s decision except to the extent that it adopted the IJ's decision. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 n.3 (9th Cir. 2004). We must uphold the agency’s factual findings “‘if supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ and we will reverse only if a reasonable fact-finder would have been compelled to reach a different conclusion.” Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en banc) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992)). Exaveau challenges the finding that he firmly resettled in Brazil before entering the United States and the BIA’s denial of his asylum claim based on this threshold determination. See 8 U.S.C. § 1158(b)(2)(A)(vi) (codifying mandatory firm-resettlement bar). We agree with Exaveau that substantial evidence does not support the finding of firm resettlement. Only an offer of permanent, not temporary, residence supports a finding of firm resettlement. Ali v. Ashcroft, 394 F.3d 780, 789–90 (9th Cir. 2005). Exaveau repeatedly testified and claimed in his asylum application that he obtained temporary residence in Brazil lasting ten years. 2 17-72470 We therefore grant Exaveau’s petition insofar as it challenges the BIA’s finding of firm resettlement. We remand for the BIA to consider the merits of Exaveau’s asylum claim. Exaveau also challenges the finding that the Haitian government is willing and able to control the alleged agent of Exaveau’s persecution—a gang—and the BIA’s denial of his withholding-of-removal claim based on that finding. See Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010) (applying three-part test for withholding-of-removal and asylum claims, which requires establishing (1) persecution, (2) ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals