Anthony Alexandre v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY ALEXANDRE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1281
Agency No.
A042-704-976
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2023
Pasadena, California
Before: W. FLETCHER, BERZON, and MILLER, Circuit Judges.
Anthony Alexandre, a native and citizen of Haiti, petitions for review of a
decision of the Board of Immigration Appeals dismissing his appeal from an
immigration judge’s decision denying his applications for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT). We
have jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part and
deny it in part.
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We review the agency’s factual findings, including adverse credibility
findings, for substantial evidence. Cordon-Garcia v. INS, 204 F.3d 985, 990
(9th Cir. 2000). We review the agency’s legal conclusions de novo. Vitug v.
Holder, 723 F.3d 1056, 1062 (9th Cir. 2013).
1. We deny the petition for review with respect to Alexandre’s claims for
asylum and withholding of removal. The Board did not err in concluding that
Alexandre was statutorily barred from obtaining asylum and withholding of
removal because he was convicted of a per se particularly serious crime.
Alexandre was convicted under California Penal Code section 273.5(a) of
“willfully inflict[ing] corporal injury resulting in a traumatic condition” on a
person with whom he shared an enumerated domestic relationship. He received
a three-year sentence, together with a three-year sentence enhancement under
California Penal Code section 12022.7(a) for “inflict[ing] great bodily injury . . .
in the commission of a felony.” For asylum purposes, Alexandre’s conviction is
per se particularly serious because it is an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(F) (defining “aggravated felony”); id. § 1158(b)(2)(B)(i)
(categorizing aggravated felonies as particularly serious crimes); see also 18
U.S.C. § 16. For purposes of withholding of removal, the conviction is also per
se particularly serious because Alexandre was “sentenced to an aggregate term
of imprisonment of at least 5 years.” 8 U.S.C. § 1231(b)(3)(B)(iv). The Board
appropriately considered the three-year sentence enhancement when calculating

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Alexandre’s aggregate term of imprisonment. See Mairena v. Barr, 917 F.3d
1119, 1124 (9th Cir. 2019) (per curiam).
2. We grant the petition for review with respect to Alexandre’s claim for
CAT relief. The immigration judge found Alexandre not credible, and the Board
appears to have adopted that finding by citing Matter of Burbano, 20 I. & N.
Dec. 872 (B.I.A. 1994). Before this court, Alexandre argues that the adverse
credibility finding was not supported by substantial evidence. The government
offers no response, instead insisting (incorrectly) that “the Board did not rely
upon [the adverse credibility] finding.” The government has thus forfeited any
argument that might have allowed us to uphold the agency’s adverse credibility
finding. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015).
Without the adverse credibility finding, the agency’s denial of CAT relief
cannot be sustained. Alexandre testified that he received numerous threats in
response to his anti-voodoo activism in Haiti. Nonetheless, the immigration
judge concluded that “[t]he record . . . does not support [Alexandre’s] claim that
government actors or voodoo priests will torture him in Haiti because of his
anti-voodoo beliefs and activism.” In reaching that conclusion, the immigration
judge noted that Alexandre had been unable to provide documentation or
“objective evidence” of the alleged threats. But if the adverse credibility finding
is removed from the equation, then the agency could not ignore Alexandre’s
testimony about the threats without giving him “notice of the corroboration
required, and an opportunity to either provide that corroboration or explain why

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he cannot do so.” Ren v. Holder, 648 F.3d 1079, 1091–92 (9th Cir. 2011).
Though the immigration judge did press Alexandre on whether he could provide
documentation of the threats, he did not say that such evidence was required,
nor did he “evaluate [Alexandre]’s explanation [for why the corroborating
evidence was not available] and determine on the record whether the evidence is
reasonably obtainable or whether other evidence might suffice.” Id. at 1092
n.12.
If the immigration judge had also found that the Haitian government
would not acquiesce in any torture that Alexandre might face at the hands of
voodoo priests, then that finding could have independently supported the
agency’s decision on this point. But although the immigration judge made such
a finding with respect to other sources of torture that Alexandre feared, he made
no such finding on the likelihood of government acquiescence when it came to
torture at the hands of voodoo priests. Whatever the merits of Alexandre’s
theory of government acquiescence, the likelihood of acquiescence is a factual
finding that must be made by the immigration judge. See Rodriguez v. Holder,
683 F.3d 1164, 1173 (9th Cir. 2012) (“The BIA may not make its own factual
findings . . . .”). Because the immigration judge made no such finding, we
remand to the agency for further proceedings on Alexandre’s CAT claim.
The motion for a stay of removal (Dkt. No. 2) is denied as moot.
The parties shall bear their own costs.

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PETITION GRANTED in part, DENIED in part, and REMANDED.
Judge W. Fletcher would deny the petition in its entirety.

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