Wisam Asso v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 8 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WISAM ABLAHAD ASSO, AKA Pioter No. 19-72426
Violgos,
Agency No. A208-598-666
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 20, 2021**
Pasadena, California
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
Wisam Ablahad Asso petitions for review the Board of Immigration
Appeals’ (“BIA”) order dismissing an appeal from the decision of the Immigration
Judge denying asylum, withholding of removal, and Convention Against Torture
*
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).
relief. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We deny the
petition.
Our review is limited—factual findings supporting the BIA’s decision that
an applicant has not established eligibility for asylum, withholding of removal, or
relief under CAT are reviewed for substantial evidence. Madrigal v. Holder, 716
F.3d 499, 503 (9th Cir. 2013). In order to reverse the BIA, the evidence must
compel a different conclusion from the one reached by the BIA. Xochihua-Jaimes
v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).
Asso argues that the BIA improperly concluded that the evidence he
submitted was insufficient to establish that the conditions of his residence in
Mexico were too restricted for him to be resettled. Specifically, Asso argues that
the BIA improperly discounted his principal evidence, an article documenting
refugee conditions in Mexico. While it is true that the article is actually dated
2007—and not undated as the BIA asserted—an article over a decade old could
still be found unpersuasive. The BIA did consider the article and did find it
insufficient to rebut the prima facie evidence of firm resettlement—the grant of
asylum by Mexico. Nothing in the record compels a contrary result. See id.2
Asso additionally challenges the BIA’s determination that his entry into
Mexico was not a necessary consequence of his flight from persecution. Asso
asserts that individuals fleeing persecution are often unable to find safety in the
first country that they arrive at. While this may be true, it does not apply to Asso’s
travel to Mexico. Before entering Mexico, Asso lived safely in Germany,
receiving government assistance for food and housing, and was never told to leave.
As such, we cannot say that Asso’s entry into Mexico was a “necessary
consequence” of his flight from persecution. E. Bay Sanctuary Covenant v.
Garland, 994 F.3d 962, 972 (9th Cir. 2020).
Asso also challenges the BIA’s denial of withholding of removal. In
particular, he asserts that the BIA erred in determining that he had failed to meet
his high burden of demonstrating a pattern or practice of persecution against Iraqi
Christians. While Asso did present evidence of violence against Christians in
Iraq—perhaps enough that a different fact finder might have found the other
way—our review does not permit us to substitute our judgment for that of the
BIA’s. Aden v. Holder, 589 F.3d 1040, 1046 (9th Cir. 2009). And the fact that
Asso’s brother, also a Christian, returned to Iraq six months prior to Asso’s merits
hearing and had suffered no harm undercuts his withholding of removal claim.
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Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010). Additionally, Asso
himself returned for visits to Iraq several times, which the BIA was entitled to
consider as evidence undermining his persecution claim. Id.Finally, Asso contends that substantial evidence does not support the BIA’s
denial of relief under the Convention Against Torture. As with the withholding of
removal claim, Asso presented evidence of human rights abuses committed by
Muslim extremist groups against religious and ethnic minorities in Iraq. We do not
find, however, that the evidence compels us to overturn the BIA’s determination
that Asso will not more likely than not be tortured in Iraq. Id. at 1095.
PETITION DENIED
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