JULIE CARNES, Circuit Judge:
Petitioner Yasmick Jeune,
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 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.
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 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
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 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,
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." 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.
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 assault, and employment
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 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."
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 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."
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.
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).
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).
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
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 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 Alinz 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 effect of this harassment.
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.
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.
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
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. 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.
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
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.
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 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.
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 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.
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).
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 determined that he also failed to meet the above standard for establishing future persecution.
8 C.F.R. § 1208.16(b)(3).
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 1220 (11th Cir.2006).
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.