Abdulhakim Haji-Eda v. Eric H. Holder Jr. ( 2012 )

FILED
NOT FOR PUBLICATION JUL 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ABDULHAKIM KHEROW HAJI-EDA, No. 08-74520
Petitioner, Agency No. A079-820-367
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 9, 2012 **
Seattle, Washington
Before: HAWKINS, GOULD, and BYBEE, Circuit Judges.
Petitioner Abdulhakim Kherow Haji-Eda seeks review of the order of the
Board of Immigration Appeals (“BIA”) vacating in part the decision of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Immigration Judge (“IJ”) and denying relief under the Convention Against Torture
(“CAT”). He also seeks review of the IJ’s denial of withholding of removal.
Although Haji-Eda makes several arguments regarding the IJ’s denial of
withholding of removal, we lack jurisdiction to hear most of them. Haji-Eda failed
to advance an argument with regard to withholding of removal in his brief before
the BIA, and the BIA exercised its prerogative in not addressing any such
arguments, so the issues are unexhausted. See Abebe v. Mukasey, 554 F.3d 1203,
1207–08 (9th Cir. 2009) (en banc) (per curiam). Although his due process claim
need not be exhausted for us to have jurisdiction, Bagues-Valles v. INS, 779 F.2d
483, 484 (9th Cir. 1985), the IJ did not make any factual or legal errors, much less
ones rising to the level of a due process violation, see Cuadras v. INS, 910 F.2d
567, 573 (9th Cir. 1990). Nor did Haji-Eda demonstrate prejudice, as required.
See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000). Haji-Eda also
challenges the Attorney General’s decision in In re Y-L-, 23 I. & N. Dec. 270 (A.G.
2002), but we considered—and rejected—this argument in Miguel-Miguel v.
Gonzales, 500 F.3d 941, 948–49 (9th Cir. 2007).
Haji-Eda challenges the BIA’s denial of CAT relief. He first argues that the
BIA used the wrong legal standard, requiring that, to be eligible for relief, Haji-Eda
must demonstrate that torture would occur while in state custody, a requirement we
negated in Azanor v. Ashcroft, 364 F.3d 1013, 1019–20 (9th Cir. 2004). Yet the
BIA appears to have only been responding to Haji-Eda’s own assertions regarding
how he thought he would be tortured, and the BIA also considered whether he
might be tortured by nonstate actors, so it did not err. Next, Haji-Eda asserts that
the BIA engaged in impermissible factfinding. The BIA is entitled to review the
record and reach its own conclusions, subject to those conclusions being supported
by substantial evidence, so there was no impermissible factfinding, especially
given that the BIA overturned no credibility determinations. See Universal
Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951); Zheng v. Ashcroft, 332 F.3d
1186, 1193 (9th Cir. 2003); In re A-S-B-, 24 I. & N. Dec. 493, 497 (B.I.A. 2008).
Finally, Haji-Eda asserts that substantial evidence did not support the BIA’s
decision to deny him CAT relief. Haji-Eda has shown no “particularized threat of
torture,” only a fear of the general violence and atrocities committed by warring
factions within his country of removal, so he is not entitled to CAT relief. Dhital
v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (emphasis removed) (quoting
Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004)) (internal quotation marks
omitted).
PETITION DISMISSED IN PART AND DENIED IN PART.