RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 1 of 9 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MUSTAFA TANIN, Petitioner, PETITION FOR REVIEW DHS File No.: A206-317-913—Las Vegas, Nevada v. JEFFERSON SESSIONS, JR., United States Attorney General, DETAINED Respondent. Mustafa Tanin, through his attorneys, hereby petitions the Court for review of the Final Order of Removal entered against him by the Immigration Judge on June 9, 2017. A copy of the BIA Order is attached. Mr. Tanin is detained. Mr. Tanin has not moved the BIA to reopen and has not applied for adjustment of status. See Circuit Rule 15-4. No court has reviewed the sufficiency of this Order. DATED: June 26, 2017. STOEL RIVES LLP Brenda K. Baumgart BRENDA K. BAUMGART, OSB No. 992160 brenda.baumgart@stoel.com JEREMY D. SACKS, OSB No. 994262 jeremy.sacks@stoel.com Telephone: 503.224.3380 Attorneys for Petitioner 1 RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 2 of 9 CERTIFICATE OF FILING AND SERVICE I hereby certify that I served the foregoing PETITION FOR REVIEW on June 26, 2017 by mailing the original thereof by first-class mail via the U.S. Postal Service to: Jefferson Sessions, Jr. U.S. Attorney General United States Department of Justice 950 Pennsylvania Avenue Room B103 Washington, D.C. 20530-0001 Office of Immigration Litigation US Department of Justice PO BOX 878, Ben Franklin Station Washington DC 20044 Elizabeth Godfrey Field Office Director Immigration & Customs Enforcement 4310 SW Macadam Avenue Portland OR 97239 DATED: June 26, 2017. STOEL RIVES LLP Brenda K. Baumgart BRENDA K. BAUMGART (SB #992160) JEREMY D. SACKS (SB #994262) Stoel Rives LLP 760 SW Ninth Avenue, Suite 3000 Portland, Oregon 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Attorneys for Appellant 93242503.1 0204388-00001 RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 3 0f 9 US. Department of Justice Decision of the Board of Immigration Appeals Executive Of?ce for Immigration Review Falls Church. Virginia 22041 File: A206 317 913 - has Vegas, NV Date: 9 In re: MUSTAFA ii? ii Office IN REMOVAL PROCEEDINGS APPEAL. ON- Oi: RESPONDENT: Pro se ON BEHAMT Oi": DHS: Nicole Wells Assistant Chief Counsel Asylum; withholding of removal; Convention Against "l"orture This case was last before us on October 27, 2016, when we ailinned the Immigration Judge?s determination that the respondent did not establish that he suffered past persecution on account of a protected ground enumerated in the Act, but remanded the record for further proceedings to determine whether the respondent could establish that he had a well?founded fear of persecution on account of a protected ground enumerated in the Act. In a March 2, 2017, decision, the immigration Judge denied the respondent?s application for asylum, withholding of removal, and protection under the Convention Against Torture See sections and ofthe Immigration and Nationality Act, 8 U.S.C. I 1231(b)(3)(A); 8 C.F.R. l208.lS. The respondent has appealed that decision.2 The Department of Homeland Security submitted a motion for summary af?nnance. The appeal will be dismissed. We review ?ndings of fact determined by the Immigration Judge, including credibility ?ndings, under a ?clearly erroneous" standard. 8 C.F.R. We. review questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges do not-o. 8 All references to the Immigration Judge?s decision shall relate to the March 2, 2017, decision unless otherwise indicated. References to ?Tel? shall relate to the transcript from the March El, 2016, hearing. References to ?Tr.2? shall related to the transcript from the February 7, 20?, hearing. 2 The respondent has submitted new evidence on appeal, including country conditions evidence, a 2015 letter from the Hazara People International Network, photographs, and information regarding the Military Penal Code oi" Afghanistan. Hon-ever, as an appellate body, it is the Board?s role to review the record as it existed before the Immigration judge and not to consider new evidence in the first instance. Insofar as we construe the submission of evidence as a motion to remand. the respondent has not explained how this evidence was previously unavailable. See Alerter of?C?erm, 20 HEN- Dec. 464 (BIA 1992); 8 C.F.R. Thus, we decline. to consider the evidence submitted by the respondent on appeal. RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 4 0f 9 A206 317 913 The respondent, a native and citizen of Afghanistan, claims that he will be persecuted on account of his Shia Muslim religion, Hazara ethnicity, membership in the National Unity Party role with the Afghan military, and his status as a deserter ?rm: the Afghan military (1.1. at 2-4; at 39-64, Tr.2 at 17?40; Exh. 4 (Form L689) at S). We ages with the [migration Judge that the respondent has not established eligibility for relief or protection from removal (U. at 6-14). On appeal, the reSpondent argues that the immigration Judge erred in ?nding him not credible (Resp. Brief at 12-15, 18-20). However, the respondent has not shown that the Immigration udge?s adverse credibility ?nding was clearly erroneous, and therefore we will uphold it on appeal at 6-8). See 8 C.F.R. The Immigration Judge identi?ed a signi?cant omission from the respondent?s asylum application and testimony at his March 21, 2016, hearing as compared to his testimony at his February 7, 2017, hearing (LJ. at 6-8). Speci?cally, the respondent testi?ed at his February 7, 2017, hearing about being knocked unconscious and burned on his back with a hot iron a?er leaving the of?ces in 2009 at 7; Tr.2 13124-29, 34). However, this attack was not included in the respondent?s asylum application or mentioned during his March 21, 2016, hearing at 7; Tr.l at 39-52). We acknowledge that not all omissions support an adverse credibility ?nding. However, the omission relied upon by the Immigration Judge is not a minor detail or a tangentially related fact, but one of two incidents of alleged physical harm suffered by the respondent in Afghanistan and the basis for why the respondent fears future persecution on account of his political opinion (U. at 7-8). See Silver-Parent: v. 827 F.3d 1 176, 1 185 (9th Cir. 2016) adverse credibility determination may be supported by emissions that are not ?details,? but new allegations that tell a ?much di?'erentmand more compelling?story of persecution than [the] initial application?) (internal citation omitted). Based on the evidence in the record, the Immigration Judge reasonably found unpersuasive the respondent?s explanation that he did not reveal the alleged attack in his asylum application or at his prior hearing because he did not have an attorney and was under a lot of stress at 7-7; Tr.2 at 24-35). See Matter of D-R-, 25 Dec. 445, 454 (BIA 2011) (explaining that an immigration Judge is not required to accept an alien?s account where other plausible views of the evidence are supported by the record). Moreover, the respondent has not presented any corroborating evidence to support his claim that he was part of the NUP or that he was attacked because of his work with the NUP (LJ. at 8). 1d. at 1186-87 (upholding adverse credibility ?nding based in part on lack of corroborating evidence). The Immigration Judge reasonably rejected the respondent?s argument that he could not obtain corroborating evidence given that the respondent was in communication with his sister in Canada, he was able to obtain letters from his family regarding his brother?s kidnapping in Afghanistan, and he had an extended amount of time to obtain additional documentary evidence (Resp. Brief at 13-14; 1.1. decision dated June 16, 2016, at 15-16; Exh. 7). Id. Accordingly, we will uphold the Immigration Judge?s adverse credibility ?nding. Even assuming the respondent credible, we will uphold the Immigration Judge?s alternative determination that the respondent did not establish eligibility for relief from removal on the merits of his claim (IJ. at 9-14). With regard to the respondent?s fear of persecution on account of his political opinion, we note that the respondent was allegedly last banned because of his support for RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 5 019 a? A206317913 the NUP in 2009 (1.1. at 10; Tr.2 at 34-35). The respondent did not present any evidence or argument that he was harmed or threatened because of his support for the NUP between 2009 and when he left Afghanistan in 2015. See v. MS, .224 F.3d 929, 935 (9th Cir. 2000) (acknowledging that a ?post-threat harmless period? in the country of alleged persecution is ?relevant? to whether an applicant?s fear is objectively reasonable). With regard to the respondent?s fear of persecution on account of his religion and ethnicity, we acknowledge the country reports indicating that Shia Muslims and the Hazara people are minority groups in Afghanistan subjected to societal abuses and discrimination (1.1. at 1~12; Tr.2 at 18-25, 29-31, 39-40; Exhs. 6-9). However, the respondent has not presented any evidence that his family living in Afghanistan, including his parents and siblings who are also Shia Muslims and of the Hazara ethnicity, have ever been banned or threatened on account of their religion or ethnicity (Ll. at 4, 13; T222 at 17-18, 29-32). See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (explaining that a claim of future persecution is weakened when similarly-situated individuals continue to live in the country without harm). On appeal, the respondent argues that he will be persecuted by the Taliban because of his ties to the Afghan military (ReSp. Brief at 18; Tr.2 at 19-21, 35-36). However, the immigration Judge correctly determined that persecution resulting from membership in the police or military is insuf?cient to establish persecution on account of a protected ground enumerated in the Act (1.1. at 9-10). See Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000); see generally Matter of Fuentes, 19 Dec. 658 (BIA 1988). Additionally, we agree with the Immigration Judge that the reSpondent has not submitted suf?cient evidence to demonstrate that his desertion from the Afghan military would qualify him for asylum (Ll. at 9-10). See Barraza Rivera v. INS, 913 F.2d 1443, 1450 (9th Cir. 1990) (?Requiring military service and punishing descrters does not, per se, constitute persecution?); see generally Matter of l9 Dec. 502 (BIA 1987) (describing the ?rare cases? where failure to serve in the military may qualify an alien for asylum). In addition, the reSpondent asserts, for the ?rst time on appeal, that he will be persecuted by the Taliban because he worked as an English translator on behalf of the United States government (Resp. Brief at 18). He explains that he did not mention this fact in his asylum application because he feared the ?wrong people? would get ahold of this ?sensitive information? (Resp. Brief at 18). We note that the respondent had not just one, but two individual hearings where he could have presented this claim (Tr.1 at 39-64, T122 at 17-40). Moreover, the respondent was represented by counsel during his second individual hearing (Tr.2 at 12). Based on the circumstances of this case, we are unpersuaded by the respondent?s explanation for why he did not present this claim before the Immigration Judge, and we decline to remand or address this claim in the ?rst instance on appeal. See Matter of J-Y-C-, 24 Dec. 260, 261 n.1 (BIA 2007) (recognizing that it is inappropriate for us to consider an issue raised for the ?rst time on appeal); Matter oth?menez- Santillano, 21 Dec. 567, 570 n.2 (BIA 1996) (holding that an issue not raised before the Immigration Judge was not properly before us); Matter ofEd?wards, 20 Dec. 191, 196 11.4 (BIA 1990). For the foregoing reasons, we will affirm the Immigration Judge?s determination that the respondent is not eligible for asylum (1.1. at 6-13). It necessarily follows that he did not meet the RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 6 0f 9 A206 317 913 higher burden to demonstrate eligibility for withholding of removal at 13). See Zamora v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006):3 We will also af?rm the Immigration Judge?s denial of CAT protection at 14). The respondent has not established error in the Immigration Judge?s determination that the record fails to demonstrate that it is more likely than not he will be tortured by or at the instigation of or with consent or acquiescence (including ?willful blindness?) of a public of?cial (1.3. at 14; Resp. Brief at 19-20). See Matter of 23 Dec. 912 (AG. 2006) (explaining that to be eligible for protection under the CAT, the applicant must establish each step in the hypothetical chain of events is more likely than not to happen). Finally, the respondent asserts on appeal that he is eligible for a change in custody status (Resp. Brief at 12-13, 20). Bond proceedings are separate and apart ?-om removal proceedings, and any issue in this regard would have to be raised in separate bond proceedings. 8 C.F.R. 1003. l9(d); see also Matter ofChirinos, 16 mm Dec. 276, 277 (BIA 1977). Thus, we declined to address the respondent?s request for a change in custody status. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. FOR THE BOARD 3 Neither the Immigration Judge?s denial of relief, nor our a?irmance of that decision here today, relies on the fact that a protected ground will not be a central enough motivation for the harm feared by the respondent. Thus, we conclude that the respondent does not qualify for withholding of removal under the broader nexus standard discussed in Barajas-Romero v. 846 F.3d 351 (9th Cir. 2017). RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 7 of 9 No. not yet assigned IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MUSTAFA TANIN, Petitioner, v. JEFFERSON SESSIONS, Jr., Unites States Attorney General, Respondent. PETITIONER’S MOTION FOR STAY OF REMOVAL DETAINED RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 8 of 9 Petitioner, Mustafa Tanin, moves for an order staying his removal while his petition for review, concurrently filed, is pending. The motion for a stay of removal should be granted because the petitioner is likely to succeed on the merits, he will be irreparably injured absent a stay, the Respondent will not be substantially injured, and the public interest favors a stay. Petitioner, who is detained presently, was transferred on Friday, June 23, 2017, from the Northern Oregon Corrections Facility (“NORCOR”) in The Dalles, Oregon, to the Northwest Detention Center (“NCD”) in Tacoma, Washington. Petitioner requests 14-days from the date of this filing to supplement this motion. In a supplemental filing he will outline the reasons why the Court should grant his motion along with the supporting evidence. The petitioner seeks 14-days to supplement this motion with additional argument and supporting evidence. DATED: June 26, 2017 Respectfully submitted, STOEL RIVES LLP By: Brenda K. Baumgart BRENDA K. BAUMGART (SB #992160) JEREMY D. SACKS (SB #994262) Stoel Rives LLP 760 SW Ninth Avenue, Suite 3000 Portland, Oregon 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Attorneys for Petitioner 2 RESTRICTED Case: 17-71871, 06/26/2017, ID: 10488977, DktEntry: 1-3, Page 9 of 9 CERTIFICATE OF FILING AND SERVICE I hereby certify that I served the foregoing PETITIONER’S MOTION FOR STAY OF REMOVAL on June 26, 2017 by mailing the original thereof by first-class mail via the U.S. Postal Service to: Jefferson Sessions, Jr. U.S. Attorney General United States Department of Justice 950 Pennsylvania Avenue, Room B-103 Washington DC 20530-0001 Office of Immigration Litigation US Department of Justice PO BOX 878, Ben Franklin Station Washington DC 20044 Elizabeth Godfrey Field Office Director Immigration & Customs Enforcement 4310 SW Macadam Avenue Portland OR 97239 DATED: June 26, 2017. STOEL RIVES LLP Brenda K. Baumgart BRENDA K. BAUMGART (SB #992160) JEREMY D. SACKS (SB #994262) Stoel Rives LLP 760 SW Ninth Avenue, Suite 3000 Portland, Oregon 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Attorneys for Petitioner