NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAZEN JARBANDA, No. 18-70114

Petitioner, Agency No. A208-584-466

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 15, 2020** San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District Judge.

Petitioner Mazen Jarbanda, a native and citizen of Syria and permanent

resident of Guatemala, appeals the Board of Immigration Appeals’ (“BIA”) order

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. affirming the immigration judge’s (“IJ”) denial of eligibility for asylum and

withholding of removal, and denial of protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny in

part and grant in part the petition for review, and we remand to the BIA for further

proceedings consistent with this disposition.

The BIA erred when it considered Jarbanda’s asylum claim from both Syria

and Guatemala. Asylum is available to refugees, and the Immigration and

Nationality Act defines “refugee” as “any person who is outside any country of

such person’s nationality . . . and who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection of, that country

because of persecution or a well-founded fear of persecution on account of” a

protected ground. 8 U.S.C. § 1101(a)(42) (emphases added), see also id.

§ 1158(b)(1)(A). In order “to receive asylum, a person of dual nationality must

demonstrate a well-founded fear of persecution in both countries.” Sung Kil Jang

v. Lynch, 812 F.3d 1187, 1192 (9th Cir. 2015). Although the BIA made no

findings regarding whether Jarbanda has dual nationality, it analyzed whether

Jarbanda was eligible for asylum from both Syria and from Guatemala. On

petition for review of the BIA’s decision, Jarbanda contends that the agency erred

in analyzing whether he was eligible for asylum from Guatemala because he is not

a national of Guatemala. The Government’s brief “does not offer any argument on

2 the merits of this” contention, so “it has waived any challenge to the argument[]

[Jarbanda] raised” regarding the BIA’s error in analyzing asylum from Guatemala.

See Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017). Thus, on remand, the

BIA should consider only whether Jarbanda is eligible for asylum from Syria.

The BIA also erred when it determined that Jarbanda was ineligible for

asylum from Syria because he was “firmly resettled” in Guatemala. Asylum is

barred if the applicant “was firmly resettled in another country prior to arriving in

the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi). “An alien is considered to be

firmly resettled if, prior to arrival in the United States, he or she entered into

another country with, or while in that country received, an offer of permanent

resident status[.]” 8 C.F.R. § 208.15. An exception arises if “the conditions of [the

applicant’s] residence in that country were so substantially and consciously

restricted by the authority of the country of refuge that he or she was not in fact

resettled.” Id. § 208.15(b).

The IJ rejected Jarbanda’s argument that he was not firmly resettled in

Guatemala because the conditions of his residence were substantially and

consciously restricted, noting that Jarbanda “was able to obtain property, work,

travel freely, and progressively solidify his immigration status in Guatemala.” The

IJ expressly did not consider Jarbanda’s evidence relating to harm he suffered in

Guatemala, stating that it was irrelevant: “[Jarbanda’s] closing arguments cite to

3 USCIS training materials to determine that persecution in the third country is

evidence that the individual has not firmly resettled. However, there is not

statutory or precedent based authority for this interpretation.” The BIA affirmed

the IJ’s decision on firm resettlement without discussion of Jarbanda’s evidence of

his suffered harm.

We conclude that the IJ and the BIA improperly disregarded Jarbanda’s

evidence relating to his suffered harm, including testimony that he was threatened

and extorted by gang members and police officers in Guatemala. Evidence of past

persecution “could rebut the finding of firm resettlement in light of our previous

holding that firmly resettled aliens are by definition no longer subject to

persecution.” Arrey v. Barr, 916 F.3d 1149, 1159–60 (9th Cir. 2019) (quotation

marks and citation omitted). We remind the BIA that a finding of past persecution

which would support an asylum claim is sufficient, but not necessary, to show a

lack of firm resettlement. Thus, even if Jarbanda’s evidence is of harm insufficient

for a claim of past persecution, that evidence is still relevant to the analysis of

whether he was firmly resettled in Guatemala. See Matter of K-S-E-, 27 I. & N.

Dec. 818, 821-22 (BIA 2020) (considering whether “the respondent’s . . . evidence

. . . of discrimination and criminal activity against Haitians in Brazil . . .

establish[ed] that the Brazilian Government actively support[ed] any mistreatment

of Haitians that . . . constitute[d] a conscious and substantial restriction of the

4 respondent’s residence”). We remand so that the BIA can reevaluate Jarbanda’s

claim for asylum from Syria, taking into account evidence of the harm he suffered

in Guatemala. See Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)

(“‘[T]he BIA is obligated to consider and address in its entirety the evidence

submitted by a petitioner,’ and where its failure to do so could have affected its

decision, remand is appropriate.” (alteration in original) (quoting Mohammed v.

Gonzales, 400 F.3d 785, 793 (9th Cir. 2005))).

With regard to Jarbanda’s withholding and CAT claims, the BIA properly

limited its consideration of those claims to the context of Guatemala. Unlike for

asylum, withholding and CAT claims both depend on the applicant’s fear of

returning to his country of removal. See 8 C.F.R. § 1208.16. Jarbanda was

ordered removed to Guatemala, not Syria. Therefore, it is irrelevant that he fears

persecution or torture in Syria for purposes of these claims, because “nobody is

trying to send [him] to” Syria. Su Hwa She v. Holder, 629 F.3d 958, 965 (9th Cir.

2010).

Substantial evidence supports the BIA’s determination that Jarbanda was

ineligible for withholding because he failed to show the requisite nexus between

his suffered harm and a protected ground. Jarbanda testified that threats and

extortion were common problems for businessowners in Guatemala. And, in the

factual circumstances present here, the single instance of offensive remarks

5 regarding the petitioner’s origin does not compel a finding of nexus. Cf. Singh v.

Barr, 935 F.3d 822, 827 (9th Cir. 2019).1

The record likewise does not compel the conclusion that Jarbanda would

“more likely than not” be tortured upon removal to Guatemala. 8 C.F.R.

§ 208.16(c)(2). Jarbanda’s past harm was not torture. See Ahmed v. Keisler, 504

F.3d 1183, 1200–01 (9th Cir. 2007). Nor do the country conditions reports on

Guatemala compel the finding that Jarbanda would be subject to a sufficient

particularized threat of torture. Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.

2008).

We deny in part and grant in part the petition for review, and we remand to

the BIA for further proceedings consistent with this disposition. Each party shall

bear its own costs on appeal.

PETITION FOR REVIEW DENIED IN PART; GRANTED IN PART;

REMANDED.

1 We reject Jarbanda’s argument that the agency failed to apply the correct legal standard (that a protected ground was “a reason” for the harm, Barajas- Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017)). Both the IJ and the BIA expressly asked whether a protected ground was “a reason” for Jarbanda’s suffered harm.

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