Yasmick Jeune v. U.S. Attorney General , 810 F.3d 792 ( 2016 )

Case: 13-11683 Date Filed: 01/08/2016 Page: 1 of 26
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11683
________________________
Agency No. A097-603-460
YASMICK JEUNE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 8, 2016)
Before WILLIAM PRYOR, JULIE CARNES, and SILER, * Circuit Judges.
JULIE CARNES, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Case: 13-11683 Date Filed: 01/08/2016 Page: 2 of 26
Petitioner Yasmick Jeune, 1 a native and citizen of Haiti, seeks review of an
order by the Board of Immigration Appeals (“BIA”) affirming an immigration
judge’s denial of Petitioner’s request that he not be removed from this country.
The Department of Homeland Security (“DHS”) had sought to remove Petitioner
after the latter’s convictions for two criminal offenses. Before the immigration
judge, Petitioner contended that, because he is a homosexual, he had been
persecuted in the past while living in Haiti and, if returned, he would be persecuted
again. The immigration judge concluded that Petitioner had failed to prove either
of those assertions. In its review of Petitioner’s appeal of that ruling, the BIA
concurred with that decision.
Now Petitioner appeals to our Court the denial of his application for
withholding of removal. But he has shifted from his previous reliance on his
homosexuality as the sole basis for his claims of past and future persecution, and
now also focuses on his present assertion that he is a transgender individual. He
faces obstacles, both as to our jurisdiction to review his claims and as to the merits
of those claims. As to the jurisdictional obstacles, we lack jurisdiction to review
claims by an alien that the latter has failed to exhaust or preserve. Because
1
Stating in his appellate brief that he now identifies as a woman, Petitioner uses feminine
pronouns in referring to himself on appeal. During his removal proceedings, however, Petitioner
identified as a male, and the immigration judge and BIA so referred to him, using masculine
pronouns. Given those references in the record, and for the sake of consistency and the
avoidance of confusion, we likewise refer to Petitioner as a male.
2
Case: 13-11683 Date Filed: 01/08/2016 Page: 3 of 26
Petitioner did not assert before the BIA arguments he now makes challenging the
immigration judge’s finding of no past persecution, he has failed to exhaust that
claim, and we have no jurisdiction to consider it.
As to the rejection by the BIA and immigration judge (collectively, “the
agency”) of Petitioner’s claim that he would be persecuted if returned to Haiti,
Petitioner’s status as a criminal alien deprives us of jurisdiction to consider
whether he produced sufficient evidence to prove the likelihood of future
persecution. Instead, our review is limited to the question whether the agency
committed a legal error in its approach to this question and, in particular, whether
the latter gave “reasoned consideration” to the applicant’s claims. After careful
review, and with the benefit of oral argument, we conclude that the agency
committed no legal error and that its consideration of Petitioner’s claims was
reasoned. For the above reasons, we dismiss the petition for review as to
Petitioner’s claim of past persecution and deny as to his claim of future
persecution.
I. BACKGROUND
A. Initiation of Removal Proceedings
In October 2004, Petitioner was paroled into the United States for the
purpose of filing an adjustment of status application as a dependent under the
3
Case: 13-11683 Date Filed: 01/08/2016 Page: 4 of 26
Haitian Responsibility and Immigration Fairness Act. His status was subsequently
adjusted to that of a lawful permanent resident in January 2006.
In March 2009, Petitioner was convicted in a Florida state court for
possessing cocaine. Then, in March 2012, he was again convicted in Florida for
carrying a concealed firearm. Shortly after this second conviction, DHS charged
that Petitioner was removable for being an alien convicted of a firearms offense,
pursuant to 8 U.S.C. § 1227(a)(2)(C), and for being an alien convicted of a
controlled substance offense, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). DHS served
Petitioner with a notice to appear on these charges.
Petitioner appeared before an immigration judge and conceded that he was
removable based on these convictions. But in an effort to be allowed to remain in
this country, he applied for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture (“CAT”), which are potentially
available to an applicant who can show that he has been or will be persecuted in
his native country based on the applicant’s membership in a particular social
group. Petitioner indicated that, as a homosexual, he was a member of a particular
social group and therefore entitled to pursue the above relief.
B. Merits Hearing on Withholding of Removal Application
The immigration judge conducted a hearing on Petitioner’s application at
which Petitioner appeared as the only witness. Twenty-four years old at the time
4
Case: 13-11683 Date Filed: 01/08/2016 Page: 5 of 26
of the hearing, Petitioner testified that he had been in the United States since he
was sixteen. As to the sexual orientation on which he based his request for
withholding of removal, 2 Petitioner testified that he had been aware he was gay
since he was six or seven years old. In describing the hostile treatment he had
received as a result of his sexual orientation, he noted that an uncle had once
beaten him with a stick and threatened to shoot him, so unhappy was the uncle at
having a gay nephew. Also, kids at his school had beaten him up, and he testified
about one particular instance that occurred when, as an 11 or 12-year old, he was
walking to school and another child called him a “faggot” and threatened to kill
him. When Petitioner tried to run away, other children standing around hit him
with a “plastic thing” and grabbed his backpack, which caused him to fall down.
After he fell, the kids jumped on him and beat him up. When Petitioner told his
teacher about this incident, the teacher told him that such things would continue to
happen unless he changed.
On another occasion, Petitioner was walking home from buying groceries
and passed by a group of people. One of the men in the group called Petitioner a
“faggot” and said that the next time Petitioner passed by, he would “be missing.”
2
The immigration judge and BIA denied Petitioner’s request for asylum, CAT relief, and
withholding of removal. Petitioner has failed to raise any arguments on appeal concerning the
denial of the first two grounds for relief. Accordingly, he has abandoned all claims except for
his claim to withholding of removal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005).
5
Case: 13-11683 Date Filed: 01/08/2016 Page: 6 of 26
A woman then threw a rock that hit Petitioner in the face, and Petitioner ran away,
at which point a man in the group had his dog chase Petitioner. The dog stopped
after Petitioner fell down and started screaming.
C. Immigration Judge’s Decision
After considering the evidence, the immigration judge denied Petitioner’s
application and ordered him removed to Haiti. The judge did not question
Petitioner’s veracity, but he nevertheless determined that the cumulative effect of
the described conduct of Petitioner’s family, neighbors, and community members
constituted only harassment and discrimination, and simply did not rise to the level
of severity necessary to support a conclusion that Petitioner had been persecuted
while living in Haiti. Indeed, the immigration judge noted that Petitioner had
encountered similar discrimination while in the United States, and had even
resorted to carrying a gun to protect himself.
As to the background materials concerning conditions in Haiti, the
immigration judge indicated that he had reviewed all of the pertinent background
materials introduced into evidence. Summarizing them, the judge noted that same-
sex conduct had been legal in Haiti since 1986. Further, there were no confirmed
reports of official discrimination against the lesbian, gay, bisexual, and transgender
(“LGBT”) community, albeit such individuals faced “widespread societal
discrimination including social stigma and targeted physical violence, sexual
6
Case: 13-11683 Date Filed: 01/08/2016 Page: 7 of 26
assault, and employment insecurity.” The materials also suggested that there were
certain areas in Haiti with no instances of harassing conduct toward gay people. In
particular, rural provinces are more tolerant of the gay community, and some men
have been able to live openly as couples in one province. Thus, the immigration
judge found that there were certain areas of Haiti in which Petitioner could live
without fear of harassment based on his sexual orientation. In short, the
immigration judge concluded that Petitioner had failed to meet his burden of
showing either past or future persecution based on his sexual orientation.
D. Petitioner’s Appeal to the BIA
Petitioner filed a notice of appeal to the BIA in which he stated that the
immigration judge erred in denying his application for relief. The notice asserted
that, if returned to Haiti, Petitioner would suffer persecution sufficient to meet the
definition of torture and also that he was “a gay man who suffered past persecution
in Haiti.”
In the brief filed in support of that appeal, Petitioner asserted that “being a
gay man, one who also dresses as a woman,” he had met his burden of proving the
likelihood of future persecution if returned to Haiti. In challenging the
immigration judge’s finding that Petitioner faced only discrimination—not
persecution—Petitioner argued that the immigration judge had misinterpreted the
evidence in the record and had only considered “favorable evidence in the written
7
Case: 13-11683 Date Filed: 01/08/2016 Page: 8 of 26
record as to country conditions for homosexuals and transvestites.” Petitioner
further argued that the immigration judge’s finding that he could live safely in
certain neighborhoods in Haiti was “too restrictive an interpretation of internal
resettlement.”
E. BIA Decision
The BIA affirmed the immigration judge’s denial of withholding of removal.
As to the claim of past persecution, it noted that Petitioner had failed to state any
legal or factual basis in his brief for the assertion made in his notice of appeal that
he had suffered past persecution. In any event, the BIA concluded that any
harassment Petitioner had suffered in Haiti in the past did not amount to
persecution.
The BIA further agreed with the immigration judge that Petitioner had not
met his burden of showing it was more likely than not that he would be persecuted
in Haiti. Specifically, the evidence reflected that same-sex sexual activity between
consenting adults had been legal since 1986, albeit homosexuality and
transgenderism remained socially taboo. While documentation indicated that there
were some instances of violence against homosexual and transgender individuals,
the majority of the evidence showed only instances of discrimination, harassment,
and ostracism of homosexuals and transgender persons. The record also reflected
that homosexuals and transgender persons reported far more tolerance and
8
Case: 13-11683 Date Filed: 01/08/2016 Page: 9 of 26
acceptance in rural provinces than in urban centers. In short, the BIA agreed with
the immigration judge’s determination that Petitioner had not met his burden to
prove that he would suffer “persecution countrywide in Haiti on account of his
sexual preference and/or transgenderism.”
II. DISCUSSION
Petitioner makes three arguments in his petition for review of the BIA’s
decision. First, as to his claim of past persecution, Petitioner argues that the
agency committed a legal error by failing to consider, from the perspective of a
child, the psychological harm Petitioner had suffered. Along the same lines, he
argues that the agency did not adequately consider the cumulative impact of all the
incidents and threats Petitioner had experienced. As to his claim of future
persecution, Petitioner argues that in concluding that he had failed to establish a
well-founded fear of persecution, the BIA committed legal error because (1) it
overlooked the fact that the immigration judge had not considered his
transgenderism separately from his homosexuality and (2) in concluding that
Petitioner failed to show a likelihood of persecution in the future, the BIA did not
adequately consider the evidence. As a result of this second alleged lapse,
Petitioner argues that the agency’s decision was not supported by reasoned
consideration. Finally, he argues that the agency violated its own regulations when
it concluded that, given the existence of rural areas that were more tolerant than
9
Case: 13-11683 Date Filed: 01/08/2016 Page: 10 of 26
urban areas toward homosexuality and transgenderism, Petitioner had failed to
meet his burden of proving the likelihood that he would suffer persecution
countrywide on account of his sexual orientation.
A. Standard of Review
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the immigration judge’s decision. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). When the BIA explicitly agrees
with the findings of the immigration judge, we review the decision of both the BIA
and immigration judge as to those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941,
948 (11th Cir. 2010). Here, the BIA agreed with the immigration judge’s findings,
and also issued its own decision.
We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza
v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We lack jurisdiction to
review any claim by “an alien who is removable by reason of having committed a
criminal offense covered in [8 U.S.C. § 1227(a)(2)(B) or (C)].” 8 U.S.C.
§ 1252(a)(2)(C). Despite this jurisdictional bar, we retain jurisdiction over
constitutional claims and questions of law raised in a petition for review. Id.§ 1252(a)(2)(D). Here, Petitioner is removable as a criminal alien and he alleges
no constitutional errors. Our jurisdiction is therefore limited to review of questions
of law. Id. § 1252(a)(2)(C), (D).
10
Case: 13-11683 Date Filed: 01/08/2016 Page: 11 of 26
In reviewing a claimed legal error, our review is de novo. Ayala, 605 F.3d at
948. An argument that the agency applied the wrong legal standard in making a
determination constitutes a legal question. See Alvarez Acosta v. U.S. Att’y Gen.,
524 F.3d 1191, 1197 (11th Cir. 2008). Likewise, an assertion that the agency
failed to give reasoned consideration to an issue is a question of law that we review
de novo. See Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1230–31 (11th
Cir. 2013).
B. General Principles Concerning Withholding of Removal
An applicant who seeks withholding of removal bears the burden of proving
that his life or freedom “more likely than not” would be threatened in his country
of return on account of his race, religion, nationality, membership in a particular
social group, or political opinion. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d
1223, 1238 (11th Cir. 2007); 8 U.S.C. § 1231(b)(3)(A). An applicant is relieved of
this burden of proof, however, if he can prove that he was persecuted in the past on
the same ground that he alleges as the basis for his fear of future persecution.
Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004). Proof of past
persecution creates a rebuttable presumption that the applicant’s life or freedom
will be threatened upon return to his country. See id. In short, given its
importance in determining which party bears the burden of proof, an applicant’s
inability to prove past persecution can become a pivotal factor in resolving his
11
Case: 13-11683 Date Filed: 01/08/2016 Page: 12 of 26
request for withholding of removal. We now consider Petitioner’s claim of past
persecution.
C. Past Persecution
As to Petitioner’s claim that he proved past persecution—and therefore that
we should presume he will be subject to future persecution in Haiti—we must first
determine whether we have jurisdiction over this claim. We are precluded from
reviewing a final order of removal if a petitioner has failed to “exhaust[] all
administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1).
And when a petitioner has neglected to assert an error before the BIA that he later
attempts to raise before us, the petitioner has failed to exhaust his administrative
remedies. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51
(11th Cir. 2006).
Moreover, to exhaust a claim before the BIA, it is not enough that the
petitioner has merely identified an issue to that body. A petitioner has not
exhausted a claim unless he has both raised the “core issue” before the BIA,
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008),
and also set out any discrete arguments he relies on in support of that claim,
Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1048 n.4 (11th Cir. 2009) (dismissing
as unexhausted a petitioner’s specific argument that the immigration judge had
engaged in speculation when discrediting his testimony, when the petitioner had
12
Case: 13-11683 Date Filed: 01/08/2016 Page: 13 of 26
contested only the broader adverse-credibility finding before the BIA).
“Unadorned, conclusory statements do not satisfy this requirement,” and the
petitioner must do more than make a passing reference to the issue. Indrawati v.
U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015); see Alim v. Gonzales, 446
F.3d 1239, 1253–54 (11th Cir. 2006). While exhaustion does not require a
petitioner to “use precise legal terminology” or provide well-developed arguments
to support his claim, it does require that the petitioner “provide information
sufficient to enable the BIA to review and correct any errors below.” Indrawati,
779 F.3d at 1297 (quoting Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir. 2011)).
These requirements further the purpose of exhaustion: to give the agency a “full
opportunity” to consider the petitioner’s claim and to compile a record that will be
adequate for future judicial review. Amaya-Artunduaga, 463 F.3d at 1250.
Petitioner never raised before the BIA the discrete arguments concerning the
past persecution claim that he now makes to us. Consequently, he failed to exhaust
this claim. Specifically, Petitioner argues to us that the immigration judge erred
“legally” in determining whether past persecution occurred because he (1) failed to
specifically focus on the impact that the described harassment by private citizens
would have had on a child and (2) did not adequately consider the cumulative
13
Case: 13-11683 Date Filed: 01/08/2016 Page: 14 of 26
effect of this harassment.3 Yet, nowhere in his appeal to the BIA did Petitioner
mention either of these “legal” grounds. He made no mention at all of past
persecution in his brief to the BIA, much less discuss the above issues. In his
notice of appeal initiating the appeal process, he did state that he was a “gay man
who suffered past persecution in Haiti.”4 But even assuming that the identification
of a potential issue in a notice of appeal can substitute for a substantive argument
in the actual appellate brief, 5 Petitioner’s passing reference in that notice to having
suffered past persecution gave the BIA no indication of the specific issues that
Petitioner now says it should have examined: (1) the alleged failure of the
immigration judge to focus on Petitioner’s age when the harassment occurred and
(2) the alleged failure by the judge to look at the totality of the harassing conduct.
3
It perhaps seems odd that Petitioner does not directly argue that the immigration judge erred
when he found that the evidence was insufficient to support Petitioner’s claim of past
persecution. But Petitioner cannot make such an argument to us. As explained supra, given
Petitioner’s status as a criminal alien, we have no jurisdiction to second-guess the immigration
judge on such a factual finding. Instead, we can reverse that finding only if we find that the
reliability of the immigration judge’s factual finding is undermined by a legal error: hence,
Petitioner’s effort to recast his dissatisfaction with the judge’s ruling into something that
resembles a legal argument.
4
In his notice of appeal, Petitioner stated that:
The Immigration Judge erred in denying [Petitioner’s] application for asylum
under INA 208, withholding of removal under INA 241(b)(3), and under Article
III of the Convention Against Torture. [Petitioner] will suffer persecution based
on one of the five protected grounds. [Petitioner] would face harm that rises to
the level of torture. He is a gay man who suffered past persecution in Haiti.
[Petitioner] reserves the right to raise other issues upon receipt of the transcript of
proceedings.
5
The appellee in this case, the Attorney General, argues that it cannot.
14
Case: 13-11683 Date Filed: 01/08/2016 Page: 15 of 26
We therefore conclude that the conclusory statement in Petitioner’s notice of
appeal indicating that he had suffered past persecution “as a gay man” was
insufficient to exhaust (and thereby preserve) the specific and discrete arguments
that he now makes in attacking the immigration judge’s conclusion concerning the
absence of a showing of past persecution. See Indrawati, 779 F.3d at 1297;
Shkambi, 584 F.3d at 1048 n.4. While Petitioner was not required to put forth
well-developed arguments, he was required to set out enough information to allow
the BIA to review, assess, and correct any alleged errors by the immigration judge.
See Indrawati, 779 F.3d at 1297. This he failed to do, and we therefore dismiss the
petition for review as to the agency’s finding concerning past persecution.
D. Future Persecution
Having failed to establish past persecution, the burden therefore remained on
Petitioner to prove that, if he were returned to Haiti, his life or freedom would,
more likely than not, be threatened there on account of his membership in a
particular social group. Moreover, as a criminal alien, Petitioner cannot succeed
on an appeal challenging the immigration judge’s adverse finding on that point
merely by questioning the correctness of that factual finding. Instead, as explained
above, he must show that, as a matter of law, the agency erred in its assessment of
this question. We conclude that he has failed to do so.
15
Case: 13-11683 Date Filed: 01/08/2016 Page: 16 of 26
Petitioner asserts three errors: (1) the BIA committed legal error because it
overlooked the fact that the immigration judge had not considered his
transgenderism, separate from his homosexuality, as a protected category; (2) the
agency did not exercise “reasoned consideration” in rejecting his contention that it
was more likely than not that he would be persecuted in the future; and (3) it
violated its own regulations in concluding that, given the existence of rural areas
that were more tolerant than urban areas toward homosexuality, Petitioner had
failed to prove the likelihood that he would suffer persecution countrywide on
account of his sexual orientation.
1. Separate Consideration of Homosexuality and Transgenderism
Petitioner argues that in finding no likelihood of future persecution, the
immigration judge improperly failed to consider the impact of his transgender
status separately from that of his homosexuality. He argues that the BIA also erred
legally because it incorrectly assumed that the immigration judge had separately
considered these categories.
Petitioner’s argument is difficult to follow. Nevertheless, if the agency
missed the distinction that he now articulates, there is a good explanation for that
omission. Specifically, although Petitioner now relies on his alleged transgender
status in the appeal before us, he never did so before the agency. So, it is hard to
understand how he can fault it for its failure to intuit an argument he never made.
16
Case: 13-11683 Date Filed: 01/08/2016 Page: 17 of 26
Moreover, his omission below has jurisdictional implications, at least as to the
claim that the immigration judge erred. If Petitioner never argued to the BIA that
the immigration judge should have considered the categories separately, he failed
to exhaust this claim, and we would have no jurisdiction to consider a newly-made
claim in his appeal to our Court. See Amaya-Artunduaga, 463 F.3d at 1250–51.
And, in fact, Petitioner never made this argument. Hence, we have no jurisdiction.
Specifically, in his brief to the BIA, Petitioner referred to himself only as a
“gay man . . . who also dresses as a woman,” and stated that the immigration judge
had not considered all of the evidence of country conditions for “homosexuals and
transvestites.” Contrary to Petitioner’s arguments on appeal, these passing
references did not readily communicate to the BIA Petitioner’s present argument
that it is his transgender status that creates the risk of persecution because being a
gay man who dresses like a woman does not necessarily mean that one is also a
transgender individual. 6 But even if the terms could be used synonymously, the
above description of himself by Petitioner was not sufficient to alert the BIA to the
specific argument Petitioner raises here: that the immigration judge erred by
6
“Transgender” is an “umbrella term for people whose gender identity and/or gender expression
differs from what is typically associated with the sex they were assigned at birth. . . . Many
transgender people are prescribed hormones . . . to change their bodies [and] [s]ome undergo
surgery as well.” GLAAD Media Reference Guide-Transgender Issues,
http://www.glaad.org/reference/transgender (last visited Dec. 17, 2015). The term “cross-
dresser” replaces the term “transvestite” and it is a term for a person who “wear[s] clothes
associated with a different sex. . . . Cross-dressers do not wish to permanently change their sex or
live full-time as women.” Id.17
Case: 13-11683 Date Filed: 01/08/2016 Page: 18 of 26
failing to consider his transgender status separately from his homosexuality. See
Indrawati, 779 F.3d at 1297; see also Shkambi, 584 F.3d at 1048 n.4. Accordingly,
we dismiss the petition as to this argument.
As to Petitioner’s related claim that the BIA, itself, committed legal error
because it inaccurately concluded that the immigration judge had separately
considered the two categories, we will assume that this claim alleges a legal error
that is reviewable notwithstanding the general bar on our jurisdiction to review a
denial of withholding of removal for a criminal alien. See 8 U.S.C.
§ 1252(a)(2)(D) (stating that the criminal alien jurisdictional bar does not preclude
review of questions of law raised in a petition for review).
Nevertheless, this obscure argument fails on the merits. Again, Petitioner
never asserted before the immigration judge or the BIA a likelihood of future
persecution based on both his homosexuality and transgender status. At most, in
his brief on appeal to the BIA, he attempted to recast his particular social group as
including both homosexuals and transvestite 7 individuals. And even if one could
read his transvestite reference as signaling that he was a transgender individual, he
never argued that these groups should be treated differently or that the evidence
showed that they were treated differently. In fact, the background information
concerning Haiti did not explicitly discuss the treatment of transgender individuals
7
Again, Petitioner never referred to himself as a transgender individual, but instead used the
term “transvestite.”
18
Case: 13-11683 Date Filed: 01/08/2016 Page: 19 of 26
as distinct from homosexuals, but instead broadly described the problems faced by
the entire LGBT community.
The BIA likewise did not consider Petitioner to be seeking withholding of
removal based on membership in two different groups. Instead, its decision
reflects that it analyzed Petitioner’s future persecution claim based on his
membership in one group—a group that included both homosexual and
transgender individuals—which was consistent with Petitioner’s classification of
his particular social group in his appellate brief to the BIA. Accordingly, we deny
the petition for review as to this argument.
2. Alleged Lack of Reasoned Consideration of Background Evidence
Petitioner also argues that the agency’s conclusion that Petitioner had failed
to prove the likelihood of future persecution was not supported by “reasoned
consideration” of the record. Again, because Petitioner is a criminal alien, we have
no jurisdiction to review the agency’s factual finding that he failed to prove that he
would suffer future persecution on account of his sexual orientation. Malu v. U.S.
Att’y Gen., 764 F.3d 1282, 1291 (11th Cir. 2014). But we do have jurisdiction to
determine whether it gave reasoned consideration to Petitioner’s claims. Id. at
1289. And when a decision of an immigration judge or the BIA is so lacking in
reasoned consideration and explanation that meaningful review is impossible, we
19
Case: 13-11683 Date Filed: 01/08/2016 Page: 20 of 26
have granted petitions for review, vacated agency decisions, and remanded for
further proceedings. Indrawati, 779 F.3d at 1302.
A reasoned-consideration examination does not look to whether the agency’s
decision is supported by substantial evidence. Perez-Guerrero, 717 F.3d at 1232.
Rather, it looks to see whether the agency has “consider[ed] the issues raised and
announce[ed] its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.” Seck v. U.S. Att’y
Gen., 663 F.3d 1356, 1364 (11th Cir. 2011) (quoting Tan v. U.S. Att’y Gen., 446
F.3d 1369, 1374 (11th Cir. 2006)). Yet, while the agency is required to consider
all evidence that a petitioner has submitted, it “need not address specifically each
claim the petitioner made or each piece of evidence the petitioner presented.” Cole
v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th Cir. 2013) (quoting Carrizo v. U.S.
Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011)). Ultimately, the agency does not
give reasoned consideration to a claim when it misstates the contents of the record,
fails to adequately explain its rejection of logical conclusions, or provides
justifications for its decision which are unreasonable and which do not respond to
any arguments in the record. See Tan, 446 F.3d at 1375–77.
20
Case: 13-11683 Date Filed: 01/08/2016 Page: 21 of 26
Here, the BIA’s 8 conclusion regarding the likelihood of future persecution
reflects reasoned consideration. This is not a case where the BIA misstated the
contents of the record, failed to adequately explain its rejection of a logical
conclusion, or provided an unreasonable justification for its decision that did not
respond to an argument in the record. See id. Contrary to Petitioner’s argument
that the BIA could have only reached its conclusion by failing to consider certain
statements made in the background evidence, the BIA’s decision reflects that it
cited to the same background evidence that Petitioner claims it ignored. The BIA
acknowledged that the background evidence indicated some instances of violence
against homosexual and transgender individuals, but concluded that the majority of
the evidence reflected only instances of discrimination, harassment, and ostracism
of homosexual and transgender individuals.
The record thus shows that the BIA considered the evidence presented and
announced its decision in terms sufficient to enable us to know that it “heard and
thought and not merely reacted.” See Seck, 663 F.3d at 1364 (quoting Tan, 446
F.3d at 1374). That the BIA reached a conclusion different from that of the
Petitioner regarding the import of the background evidence does not mean that the
BIA’s decision was not supported by reasoned consideration. And again, to the
8
In objecting to the agency’s decision concerning future persecution, Petitioner refers
interchangeably to the decisions of the BIA and the immigration judge. The BIA’s opinion was
consistent with that of the immigration judge and so, for simplicity’s sake, we refer to its opinion
in the remainder of our discussion of this issue.
21
Case: 13-11683 Date Filed: 01/08/2016 Page: 22 of 26
extent Petitioner challenges the weight and significance the BIA assigned to the
background evidence, we lack jurisdiction to consider that argument. See Perez-
Guerrero, 717 F.3d at 1232 (“[W]e lack jurisdiction to review petitions that
‘contest the weight and significance given [by the BIA] to various pieces of
evidence.’” (quoting Cole, 712 F.3d at 534)). Accordingly, we deny the petition
for review as to this issue.
3. Internal Relocation
Petitioner’s final argument is that the BIA’s additional conclusion that he
could reasonably relocate within Haiti to avoid persecution is flawed because the
BIA did not specifically address the factors set forth in 8 C.F.R. § 1208.16(b)(3).9
We disagree.
As noted, an applicant who alleges fear of future persecution, but who has
not proved any past persecution, bears the burden of proving that it is more likely
than not that his life or freedom will be threatened upon return. 8 C.F.R.
§ 1208.16(b)(2). Petitioner failed to prove past persecution and the agency
9
We reject the Government’s argument that we lack jurisdiction to review this claim because
Petitioner failed to exhaust it by not raising it before the BIA. While Petitioner did not use
precise legal terminology or put forth a well-developed argument, he provided sufficient
information to apprise the BIA of the alleged error by arguing that the IJ’s relocation finding was
“too restrictive an interpretation of internal resettlement.” This statement raises the “core issue”
of whether the immigration judge and BIA had to do more than just consider whether he could
avoid persecution by living in a certain area, as the regulation governing internal relocation
requires two layers of analysis: (1) whether there is some place the petitioner can relocate to
avoid the feared persecution, and (2) whether it would be reasonable for the petitioner to move to
that location. See 8 C.F.R. § 1208.16(b)(2); see also Montano Cisneros, 514 F.3d at 1228 n.3.
22
Case: 13-11683 Date Filed: 01/08/2016 Page: 23 of 26
determined that he also failed to meet the above standard for establishing future
persecution. But even had Petitioner met his burden on this point, this is not the
end of the inquiry because an applicant cannot avoid removal if the agency “finds
that the applicant could avoid a future threat to his or her life or freedom by
relocating to another part of the proposed country of removal and, under all the
circumstances, it would be reasonable to expect the applicant to do so.” Id.; see
also Seck, 663 F.3d at 1365. Further, when the agency has found relocation to be a
viable option, an applicant who has failed to prove past persecution bears the
burden of establishing “that it would not be reasonable for him . . . to relocate.”10 8
C.F.R. § 1208.16(b)(3)(i). In determining whether it is reasonable for an applicant
to relocate, agency regulations provide that the immigration judge and BIA should
consider the factors set forth in 8 C.F.R. § 1208.16(b)(3). These factors include,
but are not limited to, the following:
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country;
administrative, economic, or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties.
8 C.F.R. § 1208.16(b)(3).
10
The full text of § 1208.16(b)(3)(i) states, “In cases in which the applicant has not established
past persecution, the applicant shall bear the burden of establishing that it would not be
reasonable for him or her to relocate, unless the persecutor is a government or is government-
sponsored.” 8 C.F.R. § 1208.16(b)(3)(i). Here, the alleged persecutor of homosexuals is not the
government, nor is it government-sponsored.
23
Case: 13-11683 Date Filed: 01/08/2016 Page: 24 of 26
Here, Petitioner bore the burden of proving that his relocation to more
tolerant, rural parts of Haiti was not reasonable. Yet, his brief to the BIA
failed to address any of the above factors. Instead, he merely stated that the
immigration judge’s finding that he “could live in certain neighborhoods in
Haiti . . . safely as a homosexual” was “too restrictive an interpretation of
internal resettlement.” Petitioner offered no argument as to which factors
were relevant to his case, or how and why relocation was unreasonable in
light of those factors. He also did not identify any specific evidence
showing that relocation was unreasonable. Likewise, before the immigration
judge, Petitioner made no attempt to explain how the relocation factors
would support an argument that he could not reasonably relocate within
Haiti.
In any event, we find unpersuasive Petitioner’s argument that the
agency failed to consider these factors or reflect its awareness that relocation
must be reasonable. While the BIA’s order did not recite the specific
regulatory factors listed in § 1208.16(b)(3), the BIA clearly evidenced its
awareness of these factors and of the requirement that relocation had to be
reasonable by citing to our decision in Arboleda v. U.S. Att’y Gen., 434 F.3d
24Case: 13-11683 Date Filed: 01/08/2016 Page: 25 of 26
1220 (11th Cir. 2006). 11 A key part of our discussion in that decision
focused on the need for the agency to determine the reasonableness of
relocation and to consider the specified regulatory factors in making that
determination. Given the record before the BIA, which did not include any
specific argument by Petitioner as to why relocation would be unreasonable
in light of the regulatory factors, we conclude that the BIA’s citation to
Arboleda was sufficient to show that it had appropriately considered the
reasonableness of Petitioner’s relocation within Haiti. 12 See Arboleda, 434
F.3d at 1226; 8 C.F.R. § 1208.16(b)(3)(i). Accordingly, we deny the petition
as to this issue.
III. CONCLUSION
11
In Arboleda, we concluded that the BIA’s finding concerning internal relocation was
incomplete because it did not consider whether relocation was reasonable in light of the factors
listed in § 1208.16(b)(3); therefore, remand was necessary. 434 F.3d at 1226. Notably, in
Arboleda, the petitioners had established past persecution, which showing gave rise to a
rebuttable presumption of future persecution that then shifted the burden of proving the
reasonableness of internal relocation to the DHS. Id. We concluded that the DHS had failed to
show the reasonableness of the relocation, and that, in fact, the record compelled a conclusion
that the persecution at issue existed country-wide and could not be escaped merely by relocating
to a particular part of Colombia. 434 F.3d at 1224. As noted, in this case Petitioner never
showed past persecution, and therefore it was he who bore the burden of showing the
unreasonableness of relocation. See 8 C.F.R. § 1208.16(b)(3)(i) .
12
Because the criminal alien jurisdictional bar limits our review to questions of law and
constitutional claims, we are not permitted to review whether substantial evidence supports the
BIA’s determination that it was reasonable for Petitioner to relocate within Haiti. 8 U.S.C.
§ 1252(a)(2)(C), (D); see also Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1334 (11th Cir. 2010)
(stating that “the question of relocation is a factual one”).
25
Case: 13-11683 Date Filed: 01/08/2016 Page: 26 of 26
Petitioner failed to exhaust his past persecution claim, as well as the
argument in support of his future persecution claim that the immigration
judge erred by not separately considering his homosexuality and transgender
status. For this reason, we dismiss the petition for review as to that claim
and that argument. We deny the remainder of the petition for the reasons
explained above.
PETITION DISMISSED IN PART, DENIED IN PART.
26