Brezilien v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEAN YVES BREZILIEN, aka Jean 

Yves Brezilieh, No. 06-73693

Petitioner,

v.  Agency No.

A071-894-056

ERIC H. HOLDER, Attorney General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued July 15, 2008

Submitted May 5, 2009

San Francisco, California

Filed May 12, 2009

Before: Richard A. Paez and Marsha S. Berzon,

Circuit Judges, and Harold Baer,* District Judge.

Opinion by Judge Paez

*The Honorable Harold Baer, Jr., Senior United States District Judge

for the Southern District of New York, sitting by designation.

5675

5678 BREZILIEN v. HOLDER

COUNSEL

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,

California, for the petitioner.

BREZILIEN v. HOLDER 5679

Peter D. Keisler, Richard M. Evans, and David E. Dauen-

heimer, Office of Immigration Litigation, U.S. Department of

Justice, Washington, DC, for the respondent.

OPINION

PAEZ, Circuit Judge:

Petitioner Jean Yves Brezilien, a native and citizen of Haiti,

petitions for review of the final decision of the Board of

Immigration Appeals (“BIA”) sustaining the government’s

appeal of an Immigration Judge’s (“IJ”) grant of asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). The IJ initially found Brezilien

removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien

who had been convicted of a crime involving moral turpitude.

Brezilien, appearing pro se, conceded removability but

applied for asylum, withholding of removal, and CAT relief.

He asserted a fear of future persecution on account of his ties

to former Haitian president Jean-Bertrand Aristide and the

Lavalas political party, and a fear of torture on account of his

criminal status in the United States, which he argued would

subject him to indefinite detention in deplorable conditions in

Haiti.

On three separate occasions, the IJ granted Brezilien relief

from removal. The government appealed the IJ’s rulings to

the BIA, and each time the BIA reversed the IJ’s decision.

The BIA held that Brezilien’s fear of future persecution was

speculative, that he could avoid harm through internal reloca-

tion, and that there was no pattern or practice of persecution

of Aristide or Lavalas supporters in Haiti.

All of the BIA’s decisions leading up to its final decision

are properly before us in this proceeding. Brezilien raises a

number of challenges to the BIA’s rulings, some of which are

5680 BREZILIEN v. HOLDER

unexhausted or the BIA failed to address, and therefore we do

not reach the merits of those arguments. We agree, however,

with Brezilien’s main argument that the BIA violated its own

regulation—8 C.F.R. § 1003.1(d)(3)(i)-(iii)—when it engaged

in factfinding to deny Brezilien’s asylum, withholding, and

CAT claims. The BIA also improperly reversed the IJ’s fac-

tual finding, without applying the “clearly erroneous” stan-

dard of review, that Brezilien and his family suffered

persecution because of their ties to the Lavalas party. The

BIA’s errors of law require that we grant the petition and

remand for further proceedings. In light of our disposition on

this issue, we need not address Brezilien’s remaining chal-

lenges to the BIA’s disposition of his asylum and withholding

claims.

I.

Flight from Haiti

Brezilien is a native and citizen of Haiti. From 1989 until

he fled Haiti in 1991, Brezilien was an active supporter of for-

mer Haitian president Aristide.1 He distributed leaflets and

attended rallies for Aristide, wore an Aristide T-shirt that had

been personally autographed by Aristide, and posted many

pictures of Aristide in his neighborhood, including one in

front of his family home. He also canvassed the countryside

and urban neighborhoods before and on the day of the 1990

election, garnering support for Aristide. When Brezilien stood

at the polls on election day and showed voters how to vote for

Aristide’s party, several government soldiers observed his

activities.

1

Jean-Bertrand Aristide was democratically elected President of Haiti in

1990 and took office in February 1991. He resigned after a no-confidence

vote by Parliament in September 1991 and spent several years in exile

before returning to Haiti in October 1994 to complete his term. After Aris-

tide left office in 1996, he created a new political party, Lavalas. Lavalas

won the 2000 elections, and Aristide served again as President from 2001

until 2004, when he was ousted by rebels and forced to leave Haiti.

BREZILIEN v. HOLDER 5681

Brezilien’s family was associated with Aristide and Aris-

tide’s party, Lavalas, primarily through Brezilien’s father

Remon. Remon had known Aristide from a young age and

served as his personal bodyguard during his election cam-

paign and presidency. Two of Brezilien’s older brothers, Cor-

lod and Renoll, also worked for Aristide. As a 15-year-old

boy, Brezilien sometimes accompanied his father to work and

thus was seen with Aristide.

On September 28, 1991, the night before the coup d’etat

that displaced Aristide, Brezilien was at home in Port-au-

Prince with his father and his younger brother, Gerald. His

father was not on duty that day as Aristide’s bodyguard.

Insurgent soldiers known as Ton Ton Macoutes, who would

eventually oust Aristide, shot at Brezilien’s house that morn-

ing. In the evening, Brezilien’s father received phone calls

from friends warning him to stay at home. Later that night,

the soldiers returned and shot at the house again. When Brezi-

lien’s father opened the door to see who was outside, the Ton

Ton Macoutes shot and killed him.

Brezilien and Gerald hid in the basement while the Ton

Ton Macoutes, who knew the boys were inside, continued fir-

ing at the house. After spending a day in the basement, Brezi-

lien came out when he heard a neighbor talking outside. The

neighbor allowed Brezilien and Gerald to spend that night at

his house, and the next day drove them forty kilometers to

Leogane, where they stayed with the neighbor’s relative for

one month. After about one month of living in fear and hiding

from the rebel military’s search for Aristide supporters, Brezi-

lien and his brother fled by bus to a remote village, St. Louis.

On November 13, 1991, when Brezilien was 16 years old,

he and Gerald left Haiti in a boat with 67 other people. After

two or three days, the U.S. Coast Guard intercepted the boat

and transported its occupants to the Guantanamo Naval Base

in Cuba. Immigration officials interviewed Brezilien and

paroled him into the United States. He was subsequently

5682 BREZILIEN v. HOLDER

granted asylum on June 12, 1993 and lawful permanent resi-

dent status in 1994.

1993-2003: Visits to Haiti

Brezilien subsequently returned to Haiti three times, each

time for less than two weeks. In 1998, Brezilien traveled to

Haiti because two of his older brothers had been killed by the

Ton Ton Macoutes. His mother told him that they had been

working in a political office for Rene Preval and Aristide in

Port-au-Prince. According to Brezilien’s mother, one of his

brothers was gunned down as he entered the office, and then

the Ton Ton Macoutes went inside the office and shot his

other brother. No one was arrested in connection with the

murders.

Although he was afraid to do so, Brezilien returned to Haiti

for his brothers’ funerals. Fearing that someone would recog-

nize and kill him, Brezilien dressed as a woman after his

arrival in Haiti. Because the Ton Ton Macoutes knew that

Brezilien’s mother and his deceased father were affiliated

with Aristide, he felt that he could not safely stay at his moth-

er’s house. Brezilien stayed instead with his aunt, who was

not well-known, and did not travel to Port-au-Prince at all.

Brezilien attended his brothers’ funerals, both held on the

same day, though he felt that it was dangerous for him to do

so. When he left Haiti, Brezilien again took precautions so as

not to be recognized.

Despite ongoing political turmoil in Haiti, Brezilien

returned on two other occasions, in 2000 and 2003, to visit his

mother, who was hospitalized with heart problems. Although

Brezilien did not want to return to Haiti, his mother thought

she was going to die, and asked him to come see her. During

both trips, Brezilien disguised himself at the airport. He

stayed with his aunt and uncle and did not go out, fearing that

his life was in danger.

BREZILIEN v. HOLDER 5683

Arizona Criminal Conviction

On February 23, 2000, following an encounter with Sonya

White, who is the mother of Brezilien’s United States citizen

daughter, Brezilien was charged with aggravated assault

under Arizona Revised Statutes Sections 13-1204(A)(11), (B),

-1203(A)(1), -1001, -3601(A), -701, -702, -702.01 and -801

(2000). He ultimately pled guilty to attempted aggravated

assault and was sentenced to a deferred period of four months

in Maricopa County Jail with furlough consideration and three

years probation, which he completed in one year and six

months. Thereafter, Brezilien’s conviction was reduced from

a felony to a misdemeanor.

When Brezilien returned from Haiti in July 2003 after visit-

ing his ailing mother, he applied for admission as a returning

lawful permanent resident at the Miami International Airport.

He was told to report to the Department of Homeland Security

(“DHS”) office in Phoenix with court-certified copies of his

criminal record. When Brezilien reported to DHS, he was

taken into custody and issued a Notice to Appear, which

charged him as removeable under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) as an alien who has been convicted of a

crime involving moral turpitude. Brezilien admitted the fac-

tual allegations in the Notice to Appear, but applied for asy-

lum, withholding of removal, and relief under CAT, arguing

that he would be subject to persecution and torture if returned

to Haiti.

Additional Facts Relevant to Asylum and CAT Claims

Brezilien testified before the IJ in 2003 that it would be

dangerous for him to live anywhere in Haiti. He testified that

if he were to return, the Ton Ton Macoutes would kill him,

as they had killed his father and brothers. Brezilien further

testified that although many of the Ton Ton Macoutes left

Haiti, some of them remain, hoping to return to power. Brezi-

lien fears that they will recognize him as a Lavalas supporter.

5684 BREZILIEN v. HOLDER

Brezilien continues to support Lavalas and believes that Aris-

tide’s reelection in 2000 represented a positive change for the

people of Haiti.

Brezilien also fears that if he is removed to Haiti, he will

be imprisoned upon his return because of his assault convic-

tion, and will be killed in prison by incarcerated affiliates of

the Ton Ton Macoutes.

While Brezilien was in custody, he was unable to speak

with his family in Haiti. When Brezilien spoke in September

2005 with his younger brother Gerald (who lives in Phoenix),

he learned that his two older brothers, Osni and Jean Lobar,

are in the Dominican Republic. The whereabouts of Brezi-

lien’s mother, sister (Jeana), and brother (Osnar) are

unknown.

First Hearing and Appeal

On August 22, 2003, Brezilien appeared before an IJ for his

initial asylum hearing. Brezilien requested a continuance to

consult with an attorney, which the IJ granted. At his next

hearing, on September 4, 2003, Brezilien appeared without

counsel, though he stated that a lawyer with whom he had

spoken told him she would be at the hearing. The IJ decided

to proceed in her absence because Brezilien was not on his list

of detainees represented by counsel. Upon questioning by the

IJ, Brezilien admitted that he was a citizen of Haiti who had

been granted asylum in 1993 and that he had been convicted

of attempted aggravated assault in 2000. On the basis of these

two admissions, the IJ found Brezilien removable as charged.

Although Brezilien had previously been granted asylum, he

reapplied for asylum, and also applied for withholding of

removal and CAT relief. On December 17, 2003, the IJ

granted Brezilien’s second application for asylum. The IJ

found that because he had admitted the factual allegations in

the Notice to Appear, Brezilien had conceded the charge of

removability, a finding he now contests. The IJ then found by

BREZILIEN v. HOLDER 5685

clear and convincing evidence that the removal charge had

been sustained. Nevertheless, the IJ noted that Brezilien had

been granted asylum in 1993, and at that time had established

a well-founded fear of persecution. The IJ determined that the

government bore the burden of showing that circumstances in

Haiti had changed so dramatically that Brezilien’s well-

founded fear was no longer valid.

The IJ found that Brezilien was a credible witness. Because

Brezilien had been in Haiti when the coup occurred and when

the Ton Ton Macoutes had stormed his house, kidnapped and

killed his father, and fired shots into the house, the IJ found

that Brezilien was entitled to the presumption of future perse-

cution upon which his previous grant of asylum had been

based. The IJ also assessed the record and found that Brezi-

lien had suffered past persecution. The IJ granted Brezilien

asylum and withholding of removal, but did not rule on the

application for CAT relief.

The government appealed, and on September 8, 2004, the

BIA reversed the IJ’s decision. Rejecting the IJ’s determina-

tion that Brezilien had suffered past persecution, the BIA

stated that its review of the record revealed no evidence that

Brezilien had ever been the intended target of harm, and that

therefore he had no objective fear of persecution. Without

reversing the IJ’s credibility finding, the BIA remanded to the

IJ to allow Brezilien to demonstrate that changed country con-

ditions qualified him for asylum, withholding of removal, and

CAT relief.

Second Hearing and Appeal

On remand, the IJ once again found Brezilien credible and

examined his testimony in light of changed country conditions

in Haiti. The IJ concluded that Brezilien had established a

well-founded fear of persecution on account of his political

opinion or imputed political opinion. In so ruling, the IJ did

not specifically consider whether it would be reasonable for

5686 BREZILIEN v. HOLDER

Brezilien to relocate within Haiti. On December 16, 2004, the

IJ again granted asylum and withholding of removal, and

again declined to rule on the application for CAT relief.

The government appealed, and on November 21, 2005, the

BIA again reversed. The BIA noted that the IJ provided no

analysis as to whether Brezilien would be identified as a Lav-

alas supporter and concluded that Brezilien had failed to dem-

onstrate that he would be recognized as such. Relying on its

determinations that Brezilien (1) had failed sufficiently to

explain how anyone would recognize him after approximately

12 years outside of Haiti, (2) had not shown that the deaths

of his brothers and aunt were tied to their political involve-

ment with the Lavalas party, and (3) did not claim that his

mother or brother had been harmed on account of their

involvement with the Lavalas party, or that Brezilien had been

threatened or harmed during his trips to Haiti since his origi-

nal grant of asylum, the BIA found that Brezilien had failed

to demonstrate a well-founded fear of persecution in Haiti.

The BIA further found that Brezilien could avoid identifica-

tion as a Lavalas supporter by living outside of Port-au-

Prince. The BIA reversed the grant of asylum and withholding

of removal and remanded to the IJ for consideration of other

forms of relief.

Third Hearing and Appeal

At his third hearing, Brezilien asked the IJ to consider his

asylum and withholding of removal claims in light of worsen-

ing conditions in Haiti. The IJ declined, noting that the BIA

had already reversed his two prior asylum rulings. On January

25, 2006, the IJ issued an oral decision granting Brezilien’s

application for CAT relief. The IJ found that criminal depor-

tees who are returned to Haiti are detained for an indetermi-

nate amount of time, and that the conditions of detention in

a Haitian prison could amount to torture.

BREZILIEN v. HOLDER 5687

Both parties appealed the IJ’s January 25, 2006 decision to

the BIA. The BIA reversed the IJ’s grant of CAT relief, find-

ing that such relief could not be based solely on prison condi-

tions in Haiti and the indefinite detention of detainees, in light

of In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) and Theagene

v. Gonzales, 411 F.3d 1107 (9th Cir. 2005). The BIA also

rejected Brezilien’s argument that he would be targeted for

torture by the authorities while detained due to his political

affiliations, as well as his argument that worsening country

conditions qualified him for asylum because, in its view,

Brezilien had failed to establish how he would be recognized

throughout the country as an Aristide supporter. The BIA

remanded to the IJ to enter a final order of removal2 that

encompassed all of the IJ’s and BIA’s decisions. The IJ

entered the order on June 30, 2006. Brezilien timely peti-

tioned for review.

II.

Jurisdiction

Our jurisdiction to review a final order of removal is gov-

erned by 8 U.S.C. § 1252 (2000); Immigration and National-

ity Act § 242, as amended by the Real ID Act of 2005, Pub.

L. No. 109-13, Div. B, § 106, 119 Stat. 231 (May 11, 2005).

With respect to asylum, withholding of removal, and CAT

claims of a petitioner who was convicted of an offense cov-

ered by § 1252(a)(2)(C), we have jurisdiction to review the

denial of an asylum application and to review the denial of

withholding of removal and CAT relief when a petitioner

raises questions of law, including mixed questions of law and

fact, or constitutional claims. Morales v. Gonzales, 478 F.3d

972, 978-80 (9th Cir. 2007). Moreover, as to “factual issues,

2

The BIA remanded the case to the IJ to issue an order of removal pur-

suant to our then-holding in Molina-Camacho v. Ashcroft, 393 F.3d 937

(9th Cir. 2004), overruled by Lolong v. Gonzales, 484 F.3d 1173, 1176-78

(9th Cir. 2007) (en banc).

5688 BREZILIEN v. HOLDER

when an IJ does not rely on an alien’s conviction in denying

CAT relief and instead denies relief on the merits, none of the

jurisdiction-stripping provisions . . . apply to divest this court

of jurisdiction.” Id. at 980; see also Arteaga v. Mukasey, 511

F.3d 940, 942 n.1 (9th Cir. 2007).

Notwithstanding any limitations on judicial review over

discretionary determinations set forth in § 1252(a)(2)(B), sec-

tion 106 of the Real ID Act explicitly provides for judicial

review over constitutional claims or questions of law. See 8

U.S.C. § 1252(a)(2)(D) (as amended by Real ID Act

§ 106(a)(1)(A)(iii)); see also Fernandez-Ruiz v. Gonzales,

410 F.3d 585, 587 (9th Cir. 2005), as adopted by Fernandez-

Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir. 2006) (en

banc) (explaining that the Real ID Act restored judicial

review of constitutional questions and questions of law pre-

sented in petitions for review of final removal orders).

Accordingly, we have construed the jurisdictional grant of 8

U.S.C. § 1252(a)(2)(D) to encompass constitutional questions,

pure questions of law, and the “application of statutes or regu-

lations to undisputed facts, sometimes referred to as mixed

questions of fact and law.” Ramadan v. Gonzales, 479 F.3d

646, 650 (9th Cir. 2007) (per curiam).

The government contends that we lack jurisdiction to con-

sider Brezilien’s claims because (1) Brezilien has failed to

exhaust his administrative remedies as required by 8 U.S.C.

§ 1252(d)(1), and/or (2) there is no administrative decision to

review. See INS v. Ventura, 537 U.S. 12 (2002). We address

these arguments with respect to each of Brezilien’s claims as

appropriate.

Standard of Review

We review questions of law de novo. Chavez-Perez v. Ash-

croft, 386 F.3d 1284, 1287 (9th Cir. 2004). We review the

BIA’s factual findings for substantial evidence. Tawadrus v.

Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004).

BREZILIEN v. HOLDER 5689

Where the BIA conducts its own review of the evidence

and law rather than adopting the IJ’s decision, our “review is

limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d

953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204

F.3d 985, 990 (9th Cir. 2000)). Where the BIA conducts a de

novo review, “[a]ny error committed by the IJ will be ren-

dered harmless by the Board’s application of the correct legal

standard.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).

III.

Brezilien raises six challenges to the IJ’s final order of

removal. He argues that (1) the IJ violated his due process

rights when he found Brezilien removable without first assur-

ing that Brezilien had waived his right to counsel; (2) the BIA

erred as a matter of law by refusing to grant Brezilien, as an

alien previously granted asylum, a presumption of a well-

founded fear of persecution and refusing to shift the burden

of showing changed country conditions to the government; (3)

the BIA violated 8 C.F.R. § 1003.1(d)(3)(i) by engaging in its

own factfinding and using an incorrect legal standard to

reverse the IJ’s factual findings; (4) the BIA applied an incor-

rect legal standard in its analysis of Brezilien’s asylum claim;

(5) based on the undisputed facts in the record, the BIA erred

as a matter of law in reversing the IJ’s grant of asylum; and

(6) the IJ violated Brezilien’s due process rights (as well as

8 C.F.R. § 1240.11(a)(2)) by failing to inform Brezilien of his

eligibility for a waiver of inadmissibility.

IV.

We begin with two preliminary challenges to the BIA’s rul-

ings: a due process challenge to the first IJ hearing, and a

challenge to the BIA’s failure to apply a regulatory presump-

tion of well-founded fear. Because these issues are not prop-

erly before us, we do not reach the merits of these claims. We

dismiss the first as unexhausted, and remand the second to the

5690 BREZILIEN v. HOLDER

BIA to address in the first instance. We next address Brezi-

lien’s principal argument, that the BIA engaged in improper

factfinding and exceeded its scope of review to overturn key

factual findings made by the IJ. Because we agree with Brezi-

lien as to this claim, we grant the petition and remand for fur-

ther proceedings.

Due Process

[1] Brezilien argues that the IJ violated his right to due pro-

cess at his first hearing by finding him removable without first

assuring that Brezilien had waived his right to counsel. Brezi-

lien further asserts that because it was clear that he was

attempting to assert his right to counsel, the IJ should not have

proceeded without giving Brezilien an opportunity to appear

with counsel. Because Brezilien failed to exhaust his adminis-

trative remedies as to this alleged procedural error, we lack

jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). We dismiss

the petition for review as to this claim.

[2] Brezilien also argues that the IJ violated his due process

rights by failing to inform him of his eligibility for a waiver

of inadmissibility. This claim was raised for the first time in

Brezilien’s petition for review. We lack jurisdiction to con-

sider it because Brezilien failed to exhaust his administrative

remedies. 8 U.S.C. § 1252(d)(1); Barron, 358 F.3d at 677-78.

We therefore dismiss this due process claim.

Presumption of Well-Founded Fear

[3] Brezilien next argues that the DHS regulations pertain-

ing to termination of asylum status—8 C.F.R. §§ 208.22 and

208.24(g)—apply in removal proceedings, and that, absent

termination of a prior grant of asylum, there is a rebuttable

presumption that a petitioner has a well-founded fear of future

persecution. He contends that the BIA erred in declining to

apply this presumption in his case. Although we conclude that

BREZILIEN v. HOLDER 5691

we have jurisdiction to review this claim because Brezilien

sufficiently raised it before the BIA and thus properly

exhausted his administrative remedies, see Kaganovich v.

Gonzales, 470 F.3d 894, 897 (9th Cir. 2006), the BIA never

addressed it. “[I]t goes without saying that IJs and the BIA are

not free to ignore arguments raised by a petitioner.” Sagaydak

v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). We there-

fore remand this question to the BIA to address it in the first

instance. See Ventura, 537 U.S. at 16; Lopez v. Ashcroft, 366

F.3d 799, 806 (9th Cir. 2004).

Improper Factfinding

[4] Brezilien argues that the BIA improperly conducted its

own factfinding when it reversed the IJ’s grant of asylum and

withholding of removal, in violation of 8 C.F.R.

§ 1003.1(d)(3)(i).3 The regulation provides that the BIA “will

not engage in de novo review of findings of fact determined

by an immigration judge. Facts determined by the immigra-

tion judge, including findings as to the credibility of testi-

mony, shall be reviewed only to determine whether the

findings of the immigration judge are clearly erroneous.” 8

C.F.R. § 1003.1(d)(3)(i). The regulation further states that,

except in cases where judicial notice is appropriate, the BIA

may not engage in factfinding to resolve an appeal, and must

remand to the IJ if additional factfinding is necessary. 8

C.F.R. § 1003.1(d)(3)(iv); see also In re S-H-, 23 I. & N. Dec.

462, 464 (BIA 2002) (“[T]he Board must defer to the factual

determinations of the Immigration Judge in the absence of

clear error.”).

3

Effective September 25, 2002, the Department Of Justice implemented

new rules reforming the BIA process. These rules include, inter alia, pro-

hibition against two types of factfinding previously utilized by the BIA:

(1) engaging in de novo review of facts determined by an IJ; and (2) con-

sidering new evidence first offered on appeal. These substantive limita-

tions require the BIA to address legal issues de novo, while deferring to

the factual findings of the IJ. See BIA: Procedural Reforms to Improve

Case Management, 67 Fed. Reg. 54878, 54888-91 (August 26, 2002)

5692 BREZILIEN v. HOLDER

[5] According to Brezilien, the BIA engaged in its own fac-

tfinding by finding against Brezilien as to whether (1) Brezi-

lien was an intended target of persecution during the

September 1991 attack on his home; (2) the Ton Ton Mac-

outes were responsible for killing Brezilien’s two older broth-

ers; (3) the deaths of Brezilien’s two older brothers were tied

to their work for Lavalas; (4) the murder of Brezilien’s pater-

nal aunt was tied to her political involvement with Lavalas;

(5) Brezilien could avoid identification in Haiti as an Aristide/

Lavalas supporter; and (6) Brezilien could safely relocate in

Haiti. Brezilien argues that these are factual determinations

that the BIA is not authorized to make. With regard to the first

five issues, we agree. We conclude, however, that the BIA has

not clearly resolved whether internal relocation is a legal or

factual question. Compare Matter of D-I-M-, 24 I. & N. Dec.

448, 451 (BIA 2008) (remanding the question of internal relo-

cation to the IJ so that it could properly consider the evidence

and make a factual determination) with Matter of A-S-B-, 24

I. & N. Dec. 493, 497-98 (BIA 2008) (declaring that future

predictions about what may occur when an alien is returned

to his country were legal rather than factual determinations

that the BIA was authorized to make).

[6] The government argues that Brezilien never raised a

challenge to the BIA’s application of its review standard

before the BIA itself. The record, however, does not support

this assertion. In his final brief before the BIA, Brezilien spe-

cifically addressed the BIA’s authority to reconsider sua

sponte factual and legal findings from its prior decisions. He

argued that the BIA did have such power and that it should

exercise that power in its third review of his case because the

BIA had previously issued factual and legal findings contrary

to the record, regulations, and case law. He also cited 8 C.F.R.

§ 1003.1(d)(3)(i)-(iii) in discussing the standard of review the

BIA applies to the IJ’s factual findings. These points were

“sufficient to put the BIA on notice . . . and the agency had

an opportunity to pass on this issue.” Zhang v. Ashcroft, 388

BREZILIEN v. HOLDER 5693

F.3d 713, 721 (9th Cir. 2004) (per curiam). Accordingly, we

conclude that Brezilien exhausted this claim.

[7] The government further argues that we have no author-

ity to review this claim because there is no prior agency deci-

sion resolving it in the first instance. The government is

correct that interpretation of BIA regulations is “a matter that

[is] place[d] primarily in agency hands.” Ventura, 537 U.S. at

16. However, it is clear from the text of 8 C.F.R.

§ 1003.1(d)(3)(i) that where the IJ has made a factual finding,

the BIA has very limited authority to revisit that finding. Nor

is 8 C.F.R. § 1003.1(d)(3)(iv) ambiguous as to its treatment of

the question posed here: where the IJ has not made a neces-

sary factual finding, the regulation requires the BIA to remand

the factual inquiry to the IJ rather than making its own factual

finding on the matter.

[8] The IJ found Brezilien’s testimony credible, including

his testimony about his family’s connections to Aristide and

Lavalas and Brezilien’s own political activities. The BIA

affirmed this credibility determination. The IJ never made a

factual finding as to whether Brezilien and his brothers had

been targeted for persecution based on their political ties,

whether Brezilien would be identified as an Aristide/Lavalas

supporter, and whether he could avoid being identified. Nor

did the IJ determine as a matter of law whether Brezilien

could safely relocate to the outer provinces if removed to

Haiti. Despite the absence of rulings by the IJ on these issues,

the BIA did not remand to the IJ to address them in the first

instance. The BIA also reversed the IJ’s factual findings with

regard to Brezilien’s and his family’s persecution for political

opinion, without determining whether the IJ’s findings were

clearly erroneous. Based on the plain language of the regula-

tions at issue, the BIA violated 8 C.F.R. § 1003.1(d)(3)(i)’s

prohibition against making de novo factual findings, and vio-

lated 8 C.F.R. § 1003.1(d)(3)(ii)-(iii)’s standard of review that

governs the IJ’s factual findings.

5694 BREZILIEN v. HOLDER

[9] Because the BIA’s error materially affected its deci-

sions to reverse the IJ’s second grant of asylum and withhold-

ing of removal, as well as the subsequent grant of CAT relief,

we vacate the BIA’s decision. The BIA improperly relied

upon its own factual findings to conclude that Brezilien had

not established a well-founded fear of future persecution, had

not established that it is more likely than not that he will suf-

fer persecution in Haiti, and that he could safely relocate

within Haiti to avoid persecution. The BIA’s decisions to

vacate the IJ’s second grant of asylum and withholding of

removal thus depended on the agency’s improper factual find-

ings. Similarly, the BIA relied, at least in part, on its factual

finding that Brezilien would not be recognized as an Aristide/

Lavalas supporter to overturn the IJ’s grant of CAT relief. We

thus vacate the BIA’s denial of Brezilien’s applications for

asylum, withholding of removal, and CAT relief, and remand

for further proceedings.

[10] As to whether internal relocation is a factual or legal

issue, we agree with the parties that there is tension between

Matter of D-I-M- and Matter of A-S-B-. Matter of D-I-M- sug-

gests that it is a question of fact subject to clear error review.

After Matter of A-S-B-, however, there is some question

whether Matter of D-I-M- can be read to hold clearly that

internal relocation is a question of fact, subject to clear error

review by the BIA. A fair reading of Matter of A-S-B- sug-

gests that the issue of internal relocation is ultimately a ques-

tion of law subject to de novo review by the BIA. This

uncertainty in the BIA’s case law should be resolved by the

BIA in the first instance. See Ventura, 537 U.S. at 16; Negusie

v. Holder, 129 S.Ct. 1159, 1164 (2009). We therefore remand

this issue to the BIA for further clarification, if necessary.

Because we remand this matter to the BIA, we need not

address Brezilien’s claims that the BIA used an incorrect legal

standard in its analysis of his asylum claim, and that the BIA

erred as a matter of law in reversing the IJ’s grant of asylum.

BREZILIEN v. HOLDER 5695

V.

Based on his factual findings, the IJ twice granted asylum

to Brezilien, in addition to the previous grant of asylum in

1993 by an asylum officer. The IJ also granted withholding of

removal and CAT relief. These favorable rulings were based

on the substantial record evidence that it was more likely than

not that Brezilien would be persecuted if he were deported to

Haiti. The BIA improperly found additional facts not in the

record, and used these facts to support its decision to overturn

the IJ’s grant of asylum, withholding of removal, and CAT

relief.

We remand to the BIA to decide the case on the basis of

the IJ’s factual findings, or, in the alternative, to remand to the

IJ with instructions to conduct additional factfinding relating

to Brezilien’s claims for relief as appropriate. We also remand

to the BIA to address in the first instance, if necessary,

whether 8 C.F.R. §§ 208.22 and 208.24(g) apply in removal

proceedings, and whether internal relocation is a question of

fact subject to clear error review or a question of law subject

to de novo review. Accordingly, Brezilien’s petition is DIS-

MISSED in part, GRANTED in part, and REMANDED for

further proceedings consistent with this opinion.