Elie Najjar v. Loretta E. Lynch

Jan 13, 2016
11-72995
Versions:630 F. App'x 724

am receiving” and his injury, but do not tie prison officials to any abuse Najarro-Portal received in prison.2 As Najarro-Portal admitted to joining a gang in prison for “protection,” and was viewed as a gang leader, the record supports other plausible reasons for his injury. In fact, years later, while he was in the United States and presumably safe from Salvadoran prison officials, Najarro-Portal told members of his church that his jaw was broken in a prison “quarrel” without saying that prison officials were involved.

Monge’s declaration supports a finding that Najarro-Portal may be harmed if he returns to El Salvador, but suggests that Salvadoran prisoners and their friends—not Salvadoran officials—are likely to inflict the harm. Moreover, the declaration suffers from credibility problems of its own: Monge wrote it in June 2011, when she was “preparing to migrate to Canada,” but she was not made available during the immigration proceedings that occurred over a year later, even though the IJ requested that she testify.3

Najarro-Portal’s fear of being tortured or killed by Salvadoran officials is undermined by his experience in El Salvador. Najarro-Portal spent the last few months of his prison sentence in a prison in Ciudad Barrios, apparently without incident. He was free for several months, during which time he was not killed or harmed, and was re-imprisoned on a drug-possession charge. Najarro-Portal then spent another several months in jail, and there is no evidence that government officials harmed him during that time.

For all of these reasons, I do not believe that Najarro-Portal has shown that the record compels the conclusion that it is more likely than not that he would be tortured by or with the acquiescence of Salvadoran officials if he were removed to El Salvador. As a result, I would not find him entitled to deferral of removal under the CAT, and I respectfully dissent from that portion of the majority’s decision.

Alan Michael Anzarouth San Diego, CA, for Petitioner.

OIL, Imran Raza Zaidi, Trial, U.S. Department of Justice, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.

MEMORANDUM**

Elie Joseph Najjar (Najjar), a native and citizen of Lebanon, and former resettled resident of Sweden, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal. Although Najjar has never disputed his firm resettlement in Sweden, he contends that his due process rights were violated when an Immigration Judge (IJ) changed the designated country of removal from Lebanon or Sweden to Sweden only.

“Immigration proceedings must provide the procedural due process protections guaranteed by the Fifth Amendment....” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (citation omitted). In the context of country of removal designations, last minute orders of removal to a country may violate due process if an immigrant was not provided an opportunity to address his fear of persecution in that country. See Andriasian v. I.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999).

Najjar’s removal proceedings fully comported with due process requirements. The IJ consistently stated that Najjar faced removal to Sweden. Indeed, the IJ first designated Sweden as a country of removal in November, 2008—over sixteen months before Najjar’s removal hearing. Additionally, the IJ provided Najjar an opportunity to present evidence in support of his asylum application once Lebanon was no longer designated as a country of removal. It is of no constitutional significance that Lebanon was eliminated as a country of removal on the date of the removal hearing, as Najjar was assured that if Sweden did not accept Najjar and the government opted to pursue Lebanon as the country of removal, Najjar would be provided an opportunity to seek withholding of removal from Lebanon. See Su Hwa She v. Holder, 629 F.3d 958, 965 (9th Cir. 2010) (approving a similar approach).

PETITION DENIED.

Mikhail Borisovich Moiseev, pro se.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Notes

2
Admittedly, Najarro-Portal‘s mother testified before the IJ that she saw her son in prison with a broken jaw and bruised face and that Najarro-Portal told her “the authorities” beat him up. The IJ could reasonably have found her account not credible. Najarro-Portal’s mother was not clear about when she saw Najarro-Portal in prison, and her testimony that she saw Najarro-Portal with a broken jaw in 2006 is inconsistent with other evidence showing that his jaw was broken in 2004. Moreover, Najarro-Portal’s mother testified that she went to the immigration hearing from El Salvador when other evidence showed that she is a U.S. citizen and was living with Najarro-Portal and his wife in California.
3
The IJ stated: “[W]e’ve got to get testimony from [Monge] because there’s an issue; in her declaration there‘s some issues. And it’s important because she’s the only one who‘s able to testify about events post-prison to the extent that this, that, and the other thing happened in prison, he’s not in prison. They released him. He‘s not under any charges in El Salvador. So then what happened after he got out becomes critical. And she’s the only U.S. witness to that.”