                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

FELICIA AKUA AWUDZA,                            No.    17-72772

                Petitioner,                     Agency No. A208-924-268

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                       Argued and Submitted June 11, 2020
                              Pasadena, California

Before: BEA and BADE, Circuit Judges, and GONZALEZ ROGERS,** District
Judge.

      Felicia Akua Awudza, a native and citizen of Ghana, petitions for review of

the decision of the Board of Immigration Appeals (“BIA”) affirming an

immigration judge’s (“IJ”) denial of her application for withholding of removal,

asylum, and relief under the Convention Against Torture (“CAT”). We have


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Yvonne Gonzalez Rogers, United States District Judge
for the Northern District of California, sitting by designation.
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

      We review the agency’s “legal conclusions de novo and its factual findings

for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059

(9th Cir. 2017) (en banc) (citations omitted). “A finding by the IJ is not supported

by substantial evidence when ‘any reasonable adjudicator would be compelled to

conclude to the contrary based on the evidence in the record.’” Id. (quoting Zhi v.

Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)); see also 8 U.S.C. § 1252(b)(4)(B).

      1.     Awudza argues that the BIA abused its discretion by “summarily

denying” her motion to reopen. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098

(9th Cir. 2005) (“We review the BIA’s denial of a motion to reopen and remand

for abuse of discretion.”). On its face, however, the purported motion bears none

of the indices of a motion to reopen: it neither “state[s] the new facts that will be

proven at a hearing,” nor is it “supported by affidavits or other evidentiary

material.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017) (quoting 8

U.S.C. § 1229a(c)(7)(A), (B)); see also 8 C.F.R. §§ 1003.2(c), 1003.23(b)(3).

Instead, it is most reasonably construed as a notice of appeal of the IJ’s decision.

Moreover, even if that document might plausibly be construed as a motion to

reopen, Awudza expressly withdrew it—through counsel—shortly after it was

filed. Therefore, we conclude that the BIA did not abuse its discretion by failing to

rule on a purported motion to reopen.



                                           2
      Similarly, we find no error in the IJ’s failure to construe her submission of

new country conditions evidence as a motion to reopen because, as Awudza

acknowledges, she was represented by counsel at the time she submitted that

evidence. Accordingly, she offers no basis for the agency to afford her the same

liberal construction afforded to pro se litigants. See Barron v. Ashcroft, 358 F.3d

674, 676 n.4 (9th Cir. 2004).

      2.     Awudza next argues that the BIA erred by rejecting her contention

that the IJ improperly concluded that it lacked jurisdiction to consider evidence or

claims beyond the scope of the BIA’s earlier remand, in violation of Matter of

Patel, 16 I. & N. Dec. 600 (B.I.A. 1978). In her initial application for relief,

Awudza alleged that she feared returning to Ghana because her husband and

neighbors caught her having sex with another woman. After hearing testimony

from Awudza and receiving documentary evidence, the IJ denied her applications

for relief. The BIA largely agreed and found that the record supported the IJ’s

conclusions that Awudza failed to demonstrate that she suffered past persecution or

that she had a well-founded fear of future persecution because she is a member of

an LGBTQ social group. But the BIA remanded Awudza’s application for the IJ to

determine whether Awudza was a member of a social group similar to that in

Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014), and whether she could

establish an objectively reasonable fear of future persecution because of her



                                           3
membership in such a group.

      On remand to the IJ, Awudza sought to introduce new evidence and reargue

her eligibility for relief based on her LGBTQ status. The IJ refused her request

and noted that it previously “analyzed her sexual orientation claim in full” in its

earlier decision. The BIA subsequently affirmed the IJ’s refusal.

      We agree that the BIA’s initial remand order neither “expressly retain[ed]

jurisdiction [nor] qualifi[ed] or limit[ed] the scope of remand to a specific

purpose.” Bermudez-Ariza v. Sessions, 893 F.3d 685, 688 (9th Cir. 2018) (citing

Matter of Patel, 16 I. & N. Dec. at 601). Thus, the IJ would have been within its

jurisdiction to reassess Awudza’s eligibility for relief. See id. But neither Matter

of Patel, nor this court’s subsequent application of its holding in Bermudez-Ariza,

mandates that an IJ must accept new evidence beyond the scope of the BIA’s

remand or relitigate issues previously affirmed.

      Instead, we have noted that an IJ may consider additional matters that he or

she “deems appropriate or that are presented in accordance with relevant

regulations.” Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010); see also

Matter of L-S-, 25 I. & N. Dec. 705, 715 n.4 (B.I.A. 2012) (“As a general matter,

when a case is remanded to an [IJ] . . . [he] may consider additional evidence

concerning new or previously considered relief if the requirements for submitting

such evidence are met.” (emphasis added)); Matter of M-D-, 24 I. & N. Dec. 138,



                                           4
141 (B.I.A. 2007) (noting that an IJ has authority to consider additional evidence

on remand “if it is material, was not previously available, and could not have been

discovered or presented at the former hearing”).

      Here, neither the IJ nor BIA concluded that the IJ lacked jurisdiction to

consider Awudza’s arguments; rather, they determined that doing so would be

inappropriate in this particular case. Awudza does not argue in her petition, nor

did she argue to the BIA, that she made a sufficient showing to permit her to re-

argue her eligibility for asylum and withholding of removal on the basis of her

membership in an LGBTQ social group. See Matter of M-D-, 24 I. & N. Dec. at

142 (“In other words, the [IJ] has authority to consider new evidence if it would

support a motion to reopen the proceedings.”); see also Fernandes, 619 F.3d at

1074. We thus affirm the BIA’s determination that the IJ did not err by prohibiting

the relitigation of those issues.

      3.     Turning to the merits of Awudza’s asylum application, we conclude

that substantial evidence supports the BIA’s denial of relief on the record before

the IJ.1 An asylum applicant must show that she “is unable or unwilling to return

to . . . [the country of her nationality] because of persecution or a well-founded fear


      1
         Awudza does not address the agency’s rejection of her applications to the
extent that they are based on her membership in a social group of either married
women in Ghana unable to leave their relationships or married women who
cheated on their husbands with other women. Thus, she waives any challenge to
those determinations. See Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013).

                                          5
of persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “[P]ersecution is

an ‘extreme concept,’ [and] it ‘does not include every sort of treatment our society

regards as offensive.’” Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006)

(quoting Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001)).

      Awudza testified that, after her husband found her in bed with another

woman, he ran outside and shouted for the neighbors to come see what was

happening. An unknown number of people approached her home, throwing rocks

towards the bedroom where she was hiding. As her husband and neighbors rapped

the door with the rocks and other objects, Awudza escaped through a window with

her partner. Awudza then fled to a friend’s home in a different neighborhood

before relocating to her mother’s house.

      The BIA affirmed the IJ’s determination that this incident did not amount to

past persecution. The evidence in the record does not compel a contrary

conclusion. See Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (finding that

an incident where a mob beat the petitioner because of his perceived ethnicity did

not amount to past persecution); Gu, 454 F.3d at 1020–21 (finding single incident

of detention where police detained and beat the petitioner did not rise to the level

of persecution).

      Because Awudza did not establish that she had been persecuted in the past,



                                           6
she is not entitled to a presumption of future persecution. Zhao v. Mukasey, 540

F.3d 1027, 1029 (9th Cir. 2008). And the BIA concluded that neither Awudza’s

testimony nor the State Department Country Report independently established a

well-founded fear of future persecution. As the BIA concluded, the record lacked

evidence of widespread brutality against the LGBTQ community in Ghana despite

the Country Report indicating those individuals face societal discrimination.

Moreover, it noted that Ghana’s laws criminalizing “unnatural carnal knowledge”

do not apply to those, such as Awudza, in female same sex relationships.

Importantly, Awudza does not point to evidence in the record properly before the

BIA compelling a contrary conclusion. See Wakkary v. Holder, 558 F.3d 1049,

1061–62 (9th Cir. 2009).

      Having failed to satisfy her “burden of proof for asylum, [Awudza]

necessarily failed to meet the higher burden of proof for withholding of removal.”

Ren v. Holder, 648 F.3d 1079, 1094 n.17 (9th Cir. 2011); see Lianhua Jiang v.

Holder, 754 F.3d 733, 740 (9th Cir. 2014).2 Accordingly, we deny her petition as

it pertains to her asylum and withholding of removal claims.

      4.    Substantial evidence also supports the agency’s denial of Awudza’s



      2
        We reject Awudza’s contention that we must grant the petition as to her
withholding of removal claim because the BIA failed to apply the less demanding
“a reason” standard articulated in Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017).

                                         7
application for CAT relief. An applicant for CAT relief must show that it “is more

likely than not that . . . she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2). “Torture is an extreme form of cruel and

inhuman treatment,” 8 C.F.R. § 1208.18(a)(2), that “is more severe than

persecution,” Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005). Substantial

evidence in the record supports the BIA’s findings that Awudza did not show that

she would more likely than not be tortured by or with the acquiescence of the

Ghanaian government if returned to Ghana. The record does not compel a

conclusion contrary to the BIA’s conclusion. See Almaghzar v. Gonzales, 457

F.3d 915, 923 (9th Cir. 2006).

      PETITION DENIED.




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