Clement Babatunde v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLEMENT TAIWO BABATUNDE, AKA No. 19-70815
T. Clement Babatunde,
Agency No. A206-881-658
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2022
Portland, Oregon
Before: BERZON and CHRISTEN, Circuit Judges, and BLOCK,** District Judge.
Clement Taiwo Babatunde appeals the Board of Immigration Appeals’
(“BIA”) decision ordering him removed. We lack jurisdiction over two of the
issues Babatunde raises but remand for consideration of the third.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
1. We do not have subject matter jurisdiction over issues a petitioner fails to
raise before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir.
2004). We can consider some constitutional issues not raised before the agency,
but not procedural errors that the agency could have addressed had the claim been
raised before it. Id. at 778; see Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir.
2013). Babatunde’s due process challenges concern procedural matters the BIA
could have addressed had he raised them, but he did not. We therefore lack
jurisdiction over the due process issues.
2. We also lack jurisdiction over Babatunde’s challenge to the BIA’s
determination that his conviction was a “particularly serious crime” that bars his
asylum and withholding of removal claims. Babatunde did not raise the
particularly serious crime issue at all in his brief before the BIA, Barron, 358 F.3d
at 676–78, and the BIA did not address the merits of the issue, Rodriguez-
Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013).
3. Babatunde did, however, exhaust his challenge to the IJ’s Convention
Against Torture (“CAT”) determination. To meet the exhaustion requirement, a
petitioner must specify which issues form the basis of the appeal, such that the BIA
is on notice and has an opportunity to correct any error. See Zara v. Ashcroft,
383 F.3d 927, 930–31 (9th Cir. 2004). We “do not employ the exhaustion doctrine
in a formalistic manner.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir.
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2018) (quoting Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)); Bare v.
Barr, 975 F.3d 952, 960 (9th Cir. 2020). Where a petitioner “explicitly mentioned”
in his BIA brief that he was “requesting reversal of the IJ’s denial of relief under
the Convention Against Torture,” the request is “sufficient to put the BIA on notice
that he was challenging the IJ’s Convention determination,” and “the agency had
an opportunity to pass on this issue.” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th
Cir. 2004).
When considering exhaustion, we construe pro se filings liberally. See
Agyeman v. INS, 296 F.3d 871, 878 (9th Cir. 2002). In Babatunde’s pro se brief
before the BIA, he stated he “appeals the honorable Immigration Judge’s (IJ) order
of Respondent’s removal following the court’s denial of his applications for
Asylum, Withholding of Removal and Protection Under the U.N. Convention
Against Torture.” He referred to the Convention Against Torture again when
challenging the IJ’s determination that because Babatunde provided “material
support” to Boko Haram under duress, he was barred “from establishing eligibility
for asylum, withholding of removal and withholding under CAT.” Finally,
Babatunde asserted the IJ “abused his discretion by neglecting to assign the
appropriate weight to the country conditions.” “Country conditions evidence can
play a decisive role in determining eligibility for relief under the Convention,”
Zhang, 388 F.3d at 721.
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Babatunde explicitly mentioned the Convention Against Torture twice in
contexts sufficient to put the BIA on notice that he was challenging the IJ’s CAT
determination and also flagged the adequacy of the IJ’s consideration of the
country conditions report. See id. Although the latter mention was in connection
with “persecution,” adequacy of country conditions consideration is pertinent to
asylum and withholding relief and to CAT relief. As Babatunde was proceeding
pro se, the parallel reference to country conditions was sufficient for exhaustion
purposes.
The government next asserts that Babatunde failed to challenge the CAT
determination in his opening brief before this court, so he “waives any challenge to
the Board’s waiver finding.” Construing Babatunde’s pro se opening brief
liberally, he stated enough to preserve the claim. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). In any event, the government addressed the merits of
Babatunde’s CAT claim in its answering brief, and it was discussed in Babatunde’s
counseled reply brief, so any failure by Babatunde to raise the issue “did not impair
the government’s position on appeal,” or our ability fully to consider the issue. See
Ullah, 976 F.2d at 514; Etemadi v. Garland, 12 F.4th 1013, 1027 (9th Cir. 2021).
We DENY the Petition as to Babatunde’s due process and particularly
serious crime challenges. We GRANT the Petition as to Babatunde’s claim for
deferral of removal under the Convention Against Torture, and we REMAND to
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the BIA to consider that claim for relief on its merits in the first instance.
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