NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JALEL BEN NSIRA, No. 18-71637 19-70182 Petitioner, Agency No. A077-126-917 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 2, 2021** Pasadena, California Before: GOULD, LEE, and VANDYKE, Circuit Judges. Jalel Ben Nsira, a native and citizen of Tunisia, seeks review of the Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He also challenges the discretionary denials of his application for * 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). waiver of removal under 8 U.S.C. § 1227(a)(1)(H), motion to remand for consideration of additional evidence, and motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252, and we grant in part, dismiss in part, and deny in part. We “review only the [BIA’s] decision, except to the extent that it expressly adopts the IJ’s opinion.” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016) (citation omitted). “Our review is limited to those grounds explicitly relied upon” by the BIA. Id. Factual findings are reviewed “under the ‘extremely deferential’ substantial-evidence standard, under which we treat such findings as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (citation omitted). Legal conclusions are reviewed de novo. Budiono, 837 F.3d at 1046. As the parties are familiar with the facts, we do not recount them here. 1. Nsira challenges the BIA’s determination that he is not eligible for asylum and withholding of removal based on his membership in the particular social group of “Tunisians who are married to United States citizens whose families are Christian.” The IJ rejected such claim below on the basis that the proposed group lacked particularity and social distinction. The BIA, however, incorrectly characterized the IJ’s decision as concluding that Nsira “does not face an objectively reasonable risk of persecution based on his marriage to a foreign woman of a different faith.” It then erroneously determined that Nsira had failed to challenge 2 this finding — which the IJ never made in the context of his particular social group claim — and that thus he waived the claim. But in his brief to the BIA, Nsira did challenge the IJ’s findings about the particularity and social distinction of his proposed group, and he challenged the IJ’s conclusion that Nsira did not face a reasonable possibility of persecution in the context of his very similar marriage- based religious persecution claim. He thus did not waive this particular social group claim; the BIA’s contrary conclusion was error, so …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals