Sayed Md-Abu v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
SAYED MD-ABU,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 20-9594
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Petitioner Sayed Md-Abu is a native and citizen of Bangladesh. An
Immigration Judge (IJ) denied his application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT), and ordered his removal
to Bangladesh. The Board of Immigration Appeals (BIA) dismissed his appeal of the
IJ’s decision, and Petitioner has filed a petition for review. Our jurisdiction arises
under 8 U.S.C. § 1252(a). We deny the petition for review because (1) Petitioner has
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 1, 2021
Christopher M. Wolpert
Clerk of Court
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waived any challenge to the determination that he could avoid persecution by
relocating in Bangladesh, which is an independently dispositive basis for the denial
of asylum and withholding of removal; and (2) he fails to show that the denial of
CAT relief is not supported by substantial evidence.
I. BACKGROUND
The Department of Homeland Security issued Petitioner a Notice to Appear,
charging him with removability from the United States for entering this country
without a visa or other entry document, see 8 U.S.C. § 1182(a)(7)(A)(i)(I), and for
being present in this country without being admitted or paroled, see
id. § 1182(a)(6)(a)(i). Petitioner conceded the charges of removability and applied
for asylum, statutory withholding of removal, and protection under the CAT.
Before the IJ, Petitioner testified that he was a member of the Liberal
Democratic Party (LDP) and was persecuted by members of Bangladesh’s ruling
political party, the Awami League, on account of his political opinion. 1 He described
several such incidents. The first occurred in late November 2017, when two Awami
League members, Anwar and Arif, called Petitioner and threatened to kill him
because he had recruited some Awami League members to the LDP.
The second incident occurred at the end of December 2017. Anwar, Arif, and
five of their friends came to Petitioner’s workshop and told him to join the Awami
1 Petitioner has never contended that any of his persecutors were government
actors or acting in an official capacity.
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League. When Petitioner refused and said he liked the LDP, they hit him and
threatened to kill him if he did not give them money. Petitioner refused, so they
ransacked his shop and took motor parts and money. Petitioner did not sustain any
significant injuries, and LDP leaders told him not to report the incident to the police
because it would only put him and his family in danger. Later that day, a friend told
Petitioner that “they’re going to kill you tonight.” Admin. R. at 130. Assuming that
“they” meant Anwar, Arif, and Awami League members, Petitioner fled to a friend’s
house in Comilla 2 some 25 kilometers away and stayed there about a month and a
half. In Comilla, “people would stare at [him],” but no Awami League members
approached him and “nothing bad happened” to him. Id. at 145.
Soon after Petitioner’s return home, unknown people started watching him at
his shop and following him when he would go out. In mid-February 2018, he tried to
report this and the December incident to the police, but the police said they could not
accept any charges against the perpetrators because they were Awami League
members, and Anwar and Arif were respectable people. Two days later, Petitioner
returned to the police with a witness and family members, but still the police declined
to accept any charges, adding that if he tried again, he would be arrested.
The next day, Anwar, Arif, and seven other Awami League members attacked
and beat Petitioner while he was shopping. They said, “[H]ow dare you, you went to
2 In the Administrative Record, the name of this city is spelled both “Camila”
and “Comilla.” See, e.g., Admin. R. at 130:23 (transcript of hearing testimony noting
that the spelling “Camila” was “phonetic”), 383 ¶ 7 (Petitioner’s affidavit in support
of his application for relief identifying it as “Comilla”).
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the police station to file charges against us,” and told him that if he did it again, they
would kill him. Id. at 136. At the hospital Petitioner received bandages and a
painkiller for bruises and cuts.
The last incident occurred on June 22, 2018. Anwar fired two shots at
Petitioner through the window of his shop while others tried to enter. Petitioner
escaped and fled to a friend’s house in Dhaka, more than 200 kilometers away. He
did not report the incident to the police because of the prior police threat to arrest
him. While Petitioner was in Dhaka, he learned from his friend that Awami League
members from “that neighborhood” (apparently meaning his friend’s neighborhood)
came looking for him. Id. at 140. Petitioner left his friend’s place and went to a
hotel in Dhaka until August 31, 2018, when he left Bangladesh. Petitioner arrived in
the United States five months later. While he was traveling to this country, Awami
League members went to his house and threatened his family.
II. THE AGENCY’S DECISIONS
The IJ first found that Petitioner was less than fully credible and that the
documentary evidence he submitted to corroborate his account was suspect. Based in
large part on the adverse credibility finding, the IJ found that Petitioner had not
demonstrated persecution-level harm and that the harm he allegedly experienced was
not on account of his political opinion or another protected ground but was motivated
by monetary gain through robbery and retaliation for reporting to the police. The IJ
also found Petitioner had not demonstrated that the Bangladeshi government is
unable or unwilling to control the actors he fears. And the IJ further found he could
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avoid future harm by internally relocating in Bangladesh, given that he successfully
did so when he went to Comilla, he did not leave Bangladesh for over two months
after the June 22 incident, and he left his family in Bangladesh. Accordingly, the IJ
determined Petitioner had not demonstrated a well-founded fear of future persecution
and denied his asylum application. Because Petitioner could not meet the burden of
proof for asylum, the IJ found that he necessarily failed to meet the higher burden of
proof for statutory withholding of removal and denied his application for withholding
of removal.
Finally, the IJ denied CAT relief because Petitioner lacked credibility, he had
not experienced past torture, he had successfully relocated in Bangladesh and could
do so if he were to return, the human rights situation in Bangladesh does not make it
more likely than not that he would be tortured, and he had not shown that any torture
he might experience would be by, at the instigation of, or with the consent or
acquiescence of a government official or other person acting in an official capacity.
The BIA dismissed Petitioner’s appeal. The BIA found no clear error in the
IJ’s findings regarding credibility and corroborating evidence. It affirmed the IJ’s
determination that Petitioner had not shown that any past or future harm was or
would be by the Bangladeshi government or by private actors the government was or
is unable or unwilling to control. The BIA also affirmed the IJ’s determination
regarding fear of future persecution, specifically recounting that Petitioner had twice
relocated in Bangladesh without incident and pointing out that he had not met his
burden of presenting evidence that internal relocation would be unreasonable, such as
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by showing a restriction on moving, an inability to speak the language outside his
village, or an inability to make a living elsewhere in Bangladesh. Finally, the BIA
affirmed the IJ’s denial of CAT relief, stating there was no clear error in the IJ’s
finding that Petitioner had not established it was more likely than not that he would
be tortured by or at the instigation of a public official or other person acting in an
official capacity, or that any such person would consent or acquiesce in any torture.
III. PETITION FOR REVIEW; VENUE
Petitioner filed a petition for review in the United States Court of Appeals for
the Ninth Circuit. The Ninth Circuit granted the government’s motion to transfer
because the IJ who completed Petitioner’s removal proceedings was located in
Chaparral, New Mexico, and 8 U.S.C. § 1252(b)(2) provides that a “petition for
review shall be filed with the court of appeals for the judicial circuit in which the
immigration judge completed the proceedings.”
The government now argues, however, that because the Notice to Appear
directed Petitioner to appear before an Immigration Judge in Louisiana, Tenth Circuit
law directs that the United States Court of Appeals for the Fifth Circuit, which
includes Louisiana, is the proper venue for this petition. But the government also
suggests the interests of justice would best be served by retaining the petition in this
circuit. Petitioner has expressed no opinion on the matter.
As is obvious from the government’s change of position on the venue issue,
the determination of venue for appeals of removals can be subtle and intricate. See,
e.g., Lee v. Lynch, 791 F.3d 1261, 1266 (10th Cir. 2015); Medina-Rosales v. Holder,
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778 F.3d 1140, 1143 (10th Cir. 2015). Fortunately, we need not decide where venue
properly lies for the petition before us. Even if the proper judicial venue is the Fifth
Circuit, we may still exercise jurisdiction over this case. See Lee, 791 F.3d at 1264
(holding that § 1252(b)(2) is nonjurisdictional and a circuit court may exercise
jurisdiction over a petition for review even when venue is improper). For several
reasons, we agree with the government that the interests of justice are best served if
we retain the petition for review in this circuit and address it on the merits. First,
transfer would delay resolution of this matter, which has been pending in this court
for more than a year, and therefore inconvenience the parties. Second, transfer would
waste judicial resources because, as we will discuss, the petition wholly lacks merit.
See id. at 1266 (considerations in deciding whether to transfer to the proper venue a
petition for review in an immigration case include delay, inconvenience, and whether
a transfer would waste judicial resources because the petition is meritless). And
third, like both the IJ and the BIA, neither party relies on any Fifth Circuit law. See
id. (petitioner’s reliance on the law of the circuit where venue was proper is an
important factor in the transfer calculus). Accordingly, we proceed to the merits.
IV. DISCUSSION
Where, as here, a single BIA member issues a brief order deciding the merits
of an appeal, the BIA’s order is the final order of removal we review, but we may
consult the IJ’s decision if necessary to understand the grounds for the BIA’s
decision. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We
review legal conclusions de novo and factual findings for substantial evidence. See
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Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008). Under the
substantial-evidence standard, “administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
A. Asylum
An asylum applicant has the burden of proving his eligibility for asylum by
establishing that he is a refugee as defined in 8 U.S.C. § 1101(a)(42). Yuk v.
Ashcroft, 355 F.3d 1222, 1232 (10th Cir. 2004). As relevant to the petition for
review here, an asylum applicant can establish refugee status by demonstrating that
he has a well-founded fear of future persecution or that he has suffered past
persecution, which gives rise to a rebuttable presumption that he has a well-founded
fear of future persecution. See id. at 1232–33; see also 8 C.F.R. § 1208.13(b)
(explaining eligibility requirements). The persecution must be “on account of race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42). And the persecution must have been “committed by the
government or forces the government is either unable or unwilling to control.”
Orellana-Recinos v. Garland, 993 F.3d 851, 854 (10th Cir. 2021) (internal quotation
marks omitted). Significantly, “[a]n applicant does not have a well-founded fear of
persecution if the applicant could avoid persecution by relocating to another part of
the applicant’s country of nationality . . . if under all the circumstances it would be
reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). If the
applicant establishes refugee status, “the Attorney General exercises discretionary
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judgment in either granting or denying asylum.” Yuk, 355 F.3d at 1233 (internal
quotation marks omitted).
Petitioner makes several arguments germane to the BIA’s denial of asylum,
but as the government points out, he has not specifically challenged the BIA’s
finding that he could avoid persecution by relocating internally in Bangladesh.
Petitioner does state, as part of his credibility argument, that he cannot escape the
reach of the Awami League because it “is a national organization,” Pet’r’s Br. at 23.
But that undeveloped, isolated, conclusory statement is insufficient to avoid waiver
of the internal-relocation issue. See Sawyers v. Norton, 962 F.3d 1270, 1286
(10th Cir. 2020) (issues “presented only in a perfunctory manner” in an opening brief
are waived (bracket and internal quotation marks omitted)). Because of this waiver,
he cannot succeed on his asylum claim regardless of whether the BIA erred in other
respects. See Tulengkey v. Gonzales, 425 F.3d 1277, 1282 (10th Cir. 2005) (because
of failure to challenge relocation finding, a “claim of a well-founded fear of future
persecution necessarily fails”); Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir.
1994) (failure to challenge an agency finding that is an independently sufficient basis
for the denial of relief forecloses success on appeal regardless of the merits of an
alternative ground).
B. Statutory Withholding of Removal
Petitioner’s waiver of a challenge to the BIA’s relocation finding is also
dispositive of his request for withholding of removal under 8 U.S.C. § 1231(b)(3),
regardless of whether he established past persecution. See Uanreroro, 443 F.3d
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at 1202 (failure to meet asylum standards necessarily results in failure to meet higher
standard for withholding of removal under § 1231(b)(3)); 8 C.F.R.
§ 1208.16(b)(1)(i)(B), (b)(2) (discussing internal relocation in the context of
withholding of removal).
C. CAT Relief
To be eligible for CAT relief, an applicant must “establish that it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). The torture must be “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public official acting in an
official capacity or other person acting in an official capacity.” Id. § 1208.18(a)(1).
Petitioner argues that he satisfied this burden, but he asserts only that “he faces
torture and death if he returns to Bangladesh” because he “was threatened with death,
shot at, and assaulted repeatedly.” Pet’r’s Br. at 28. This argument is unpersuasive
because it fails to address two significant components of the IJ’s CAT findings
(which the BIA affirmed): (1) Petitioner had successfully avoided the individuals he
fears by relocating internally and could do so again if he returns to Bangladesh and
(2) country conditions do not support finding that it is more likely than not that he
would be tortured. Absent any challenge to these findings, we cannot say that any
reasonable adjudicator would be compelled to conclude that Petitioner established
eligibility for CAT relief, so the denial of CAT relief is supported by substantial
evidence. See Birhanu v. Wilkinson, 990 F.3d 1242, 1265 (10th Cir. 2021) (“We
review the agency’s determination of a CAT claim for substantial evidence.”).
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V. CONCLUSION
The petition for review is denied.
Entered for the Court
Harris L Hartz
Circuit Judge
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