Stetco v. Holder ( 2012 )

FILED
NOT FOR PUBLICATION NOV 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANAMARIA IOANA STETCO, No. 08-70611
Petitioner, Agency No. A099-340-867
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2012
San Francisco, California
Before: FERNANDEZ and BERZON, Circuit Judges, and SMITH, District
Judge.**
Anamaria Iona Stetco, a native and citizen of Romania, petitions for review
of the Board of Immigration Appeals’ (BIA) order dismissing her appeal of an
immigration judge’s (IJ) decision denying her application for asylum, withholding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William E. Smith, District Judge for the U.S. District
Court the District of Rhode Island, sitting by designation.
of removal, and relief under the Convention Against Torture (CAT). We grant
Stetco’s petition.
1. Contrary to the government’s argument, Stetco’s petition does not present
a moot question, for two reasons:
First, because we must decide whether to grant or deny Stetco’s petition
based on the BIA’s own reasoning, the only issues before us are those that the BIA
discussed. See Chawla v. Holder, 599 F.3d 998 (9th Cir. 2010) (“We do not
review [a] portion of the IJ’s decision” that “the BIA did not expressly adopt or
affirm.”); Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). It
is therefore irrelevant to our jurisdiction that Stetco’s petition did not challenge
portions of the IJ’s decision, as the BIA did not hold that circumstance pertinent to
its determination of the issue that was raised.
Second, the IJ’s discussion of country conditions was not an independent
ground for denying Stetco’s application. Had Stetco established a past fear of
persecution – as she might have had the IJ not made an adverse credibility
determination – the burden of establishing a change in country conditions would
have shifted to the government. See 8 C.F.R. § 1208.13(b)(1); Mendoza-Pablo v.
Holder, 667 F.3d 1308 (9th Cir. 2012). The IJ’s decision noted that “objective
documents in the record do not support a finding” that Stetco had a well-founded
2
fear of future persecution. It therefore indicates that the IJ put the responsibility on
Stetco to produce such documents, rather than on the government affirmatively to
prove a change in country conditions that, by a preponderance of the evidence,
establishes that Stetco no longer has a well-founded fear of persecution. Because
the IJ did not hold that the government had met its burden to rebut a presumption
that Stetco had a well-founded fear of persecution, his discussion of country
conditions was not an independent ground for denying Stetco’s application. That
Stetco appealed only on the past persecution theory may have constituted
abandonment of an alternative well-founded fear theory premised only on changed
country conditions, but it did not vitiate the possibility of establishing a
presumption of future persecution by first establishing past persecution.
2. Stetco’s petition challenged each of the BIA’s reasons for dismissing her
appeal, namely the adverse credibility determination, the supposed lack of a
“sufficiently detailed and specific account of the basis of her fear,” and supposed
lack of corroborating evidence. We conclude that the government has waived any
challenge to the arguments Stetco raised.
The only argument proffered in the government’s brief in this court is that
“The Petition Should be Dismissed for Lack of Jurisdiction.” The government’s
sole allusion in the Summary of Argument and Argument sections of its answering
3
brief to Stetco’s credibility argument is a footnote indicating that the cases on
which Stetco relies were not, unlike Stetco’s application, governed by the Real ID
Act, 8 U.S.C. § 1158(b)(1)(B)(iii). That footnote contains no discussion of the
facts or reasoning of any of the cases that Stetco contends dictate reversing the
BIA, the facts of Stetco’s case with regard to the credibility determination, or the
reasons why the BIA’s analysis when rejecting Stetco’s past persecution claim is
entitled to deference. Indeed, the government’s brief never states that the BIA’s
conclusion regarding the credibility determination should be upheld; it concludes
only that the petition should be “dismissed” for lack of jurisdiction, not denied for
lack of merit. See Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 n.6 (9th Cir.
2004) (noting the distinction between “dismiss[ing]” a petition for lack of
jurisdiction and “den[ying]” a petition on the merits). The government has
therefore waived any argument that the BIA’s credibility determination was
supported by substantial evidence. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th
Cir. 2009) (holding that an argument not addressed in an answering brief is
waived); cf. United States v. Strong, 489 F.3d 1055, 1060 n.4 (9th Cir. 2007) (“The
summary mention of an issue in a footnote, without reasoning in support of the . . .
argument, is insufficient to raise the issue on appeal.”).
4
Nor did the government’s answering brief acknowledge at all Stetco’s
arguments that the BIA erred by concluding that she failed to provide a sufficiently
detailed account of her fear or corroborate her claim with credible evidence. We
accordingly deem waived any argument that these portions of the BIA’s decision
were supported by substantial evidence. See Clem, 566 F.3d at 1182.
Given the government’s multiple waivers before this court, Stetco must
prevail as to whether there was substantial evidence to support the BIA’s adverse
credibility finding. Stetco is therefore deemed credible for the purposes of
assessing her asylum, withholding of removal, and CAT claims. Cf. Joseph v.
Holder, 600 F.3d 1235, 1247 (9th Cir. 2010) (noting that when “the IJ and BIA
have listed all possible reasons to support an adverse credibility determination, and
they are inadequate in law or not supported by substantial evidence,” a petitioner
may be deemed credible).
Petition for review GRANTED; REMANDED.
5