Lamercier Fienelice v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAMERCIER FIENELICE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72709
Agency No. A209-156-173
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Lamercier Fienelice, a native and citizen of Haiti, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Our
* 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).
FILED
AUG 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th
Cir. 2020). We review de novo claims of due process violations in immigration
proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part
and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Fienelice
failed to demonstrate that the harm he experienced or fears was or would be on
account of a protected ground. See Madrigal v. Holder, 716 F.3d 499, 506 (9th
Cir. 2013) (noting that “mistreatment motivated purely by personal retribution will
not give rise to a valid asylum claim”); Ayala v. Holder, 640 F.3d 1095, 1097 (9th
Cir. 2011) (even if membership in a particular social group is established, an
applicant must still show that “persecution was or will be on account of his
membership in such group”). We lack jurisdiction to review Fienelice’s contention
as to a pattern and practice of persecution against landowners in Haiti. See Barron
v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (generally requiring exhaustion
of claims before the agency). Thus, Fienelice’s asylum claim fails.
In his counseled opening brief, Fienelice does not raise any challenge to the
agency’s determination that he failed to establish eligibility for withholding of
removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013)
(issues not specifically raised and argued in a party’s opening brief are waived).

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Substantial evidence also supports the agency’s denial of CAT relief because
Fienelice failed to show it is more likely than not he will be tortured by or with the
consent or acquiescence of the government if returned to Haiti. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
Fienelice’s contention that the agency erred in its legal analysis or ignored
evidence fails. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)
(agency adequately considered evidence and sufficiently announced its decision).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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