Asim Sarwar v. Merrick Garland

FILED NOT FOR PUBLICATION JAN 31 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ASIM SARWAR, No. 18-71479 Petitioner, Agency No. A208-616-883 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 10, 2022** Submission Vacated September 20, 2022 Resubmitted January 31, 2023 Portland, Oregon Before: TALLMAN and CHRISTEN, Circuit Judges, and BLOCK,*** District Judge. Dissent by Judge BLOCK. * 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 Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Asim Sarwar, a native and citizen of Pakistan, petitions for review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and deny Sarwar’s petition. 1. We reject Sarwar’s argument that the BIA lacked jurisdiction due to a defective notice to appear (NTA). See United States v. Bastide-Hernandez, 39 F.4th 1187, 1193–94 (9th Cir. 2022). Sarwar later received a corrected NTA and attended his hearing. Sarwar does not present a colorable argument that he was prejudiced by the initial, defective NTA. 2. We reject the government’s argument that we lack jurisdiction to consider Sarwar’s petition because he did not exhaust his challenge to the IJ’s adverse credibility finding before the BIA. While we typically lack jurisdiction to consider issues that were not raised before the BIA, see Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013), we do not apply the exhaustion doctrine in a formalistic manner against pro se petitioners, Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011). Instead, we construe pro se filings liberally. Id. Sarwar’s BIA filings challenged the IJ’s finding that Sarwar was ineligible for asylum because Sarwar “failed to proffer and present credible evidence of past harm in Pakistan,” there was a “lack of evidence to support [his] application,” and he could “not 2 elaborate [his] statement correctly.” He argued that he should be provided an opportunity to “elaborate [his] issue widely and with details.” Liberally construing Sarwar’s filings, we conclude that Sarwar placed the BIA on notice that he was contesting the IJ’s credibility finding. Moreover, the BIA considered the merits of Sarwar’s challenge to the adverse credibility determination, and claims addressed on the merits by the BIA are deemed exhausted. See, e.g., Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). 3. We review adverse credibility determinations for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We will not disturb the agency’s finding that a petitioner is not credible unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Both …

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