Miranda-Bojorquez v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1202
DENNIS MAURICIO MIRANDA-BOJORQUEZ,
Petitioner,
v.
WILLIAM P. BARR,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Rachel L. Rado and The Law Office of Rachel L. Rado, LLC on
brief for petitioner.
Jennifer P. Levings, Senior Litigation Counsel, U.S.
Department of Justice, Civil Division, Office of Immigration
Litigation, Joseph H. Hunt, Assistant Attorney General, and
Shelley R. Goad, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
August 27, 2019
*Pursuant to Fed. R. App. P. 43(c)(2), Attorney General William P.
Barr is substituted for former Attorney General Jefferson B.
Sessions III as respondent.
TORRUELLA, Circuit Judge. Petitioner Dennis Mauricio
Miranda-Bojorquez ("Miranda") fled his native El Salvador and
entered the United States unlawfully. He sought asylum,
withholding of removal, and relief under the Convention Against
Torture ("CAT"), claiming that he was abused and threatened as a
child by family and purported gang members in El Salvador. The
Immigration Judge ("IJ") denied Miranda's application for refugee
status, and the Board of Immigration Appeals ("BIA") affirmed.
Because the agency's decision is supported by substantial
evidence, we deny Miranda's petition for judicial review.
I.
A.
On November 22, 2014, at age seventeen, Miranda
unlawfully entered the United States near Hidalgo, Texas, after
which he was detained by border patrol and classified as an
unaccompanied juvenile. Miranda was later released to the custody
of his parents, who lived in Chelsea, Massachusetts. On February 6,
2015, the Department of Homeland Security ("DHS") charged Miranda
with removability, pursuant to section 212(a)(6)(A)(i) of the
Immigration and Nationality Act ("INA"), as an alien present in
the United States who has not been admitted or paroled. In May
of that year, he filed a timely application for asylum.
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While in Chelsea, Miranda attended school and held jobs
at restaurants. It was also in Chelsea, however, where he had two
run-ins with the police. The first encounter took place on June 26,
2016. Miranda was riding in a car with three other individuals
when the police stopped them after receiving a tip that individuals
matching their description had been acting suspiciously in the
area. During this stop, Miranda was subjected to a protective
search and thereafter arrested for possession of a dangerous
weapon, a large knife, in violation of a local ordinance.
Miranda's next encounter with the police resulted from
a group altercation that occurred on September 23, 2016. Miranda
was stabbed in the abdomen during this incident, after which he
was transported to Massachusetts General Hospital for treatment.
While Miranda was hospitalized, a Chelsea Police Department
Officer, Anthony D'Alba, interviewed him. Miranda was under the
effects of anesthesia and oxycodone at the time of this interview.
Officer D'Alba filed a police report that detailed his interview
with Miranda. The report stated that a woman had instigated the
altercation. It explained that after Miranda and his friend
ignored the woman's taunts, she summoned around a dozen of her
friends, all alleged members of the 18th Street Gang. Upon
arriving, the alleged gang members got into a scuffle with Miranda
and his friend that eventually resulted in the latter two being
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stabbed. The police report further reflects that during the
interview Miranda stated that he was previously a member of MS-13
but was no longer involved with the gang.1 Miranda also told
Officer D'Alba that he still associated with and had friends who
were members of MS-13.
On October 14, 2016, Homeland Security Investigations
("HSI")2 designated Miranda as a verified and active member of MS-
13. As a result, on November 17, 2016, DHS seized Miranda at his
home and transferred him back to immigration custody.
B.
In a series of hearings beginning on July 14, 2017, an
IJ considered Miranda's application for asylum, withholding of
removal, and relief under the CAT.
Miranda testified that, as a child in El Salvador, he
suffered a pattern of physical and psychological abuse at the hands
of family members -- specifically, his uncle Mauricio and aunt
Virginia -- with whom he lived after his parents left El Salvador
1 MS-13 and the 18th Street Gang are rival gangs. The Government
claims Miranda was arrested for "assault/attempted murder" as a
result of the altercation. But the sections of the record the
Government cites do not support this assertion.
2 "HSI is a critical investigative arm of the Department of
Homeland Security . . . ." Homeland Security Investigations, U.S.
Immigration and Customs Enforcement, https://www.ice.gov/hsi (last
visited Aug. 19, 2019).
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for the United States. Specifically, Miranda testified that
Mauricio beat him and forced him to do agricultural work and that
Virginia singled him out, beat him, and abused him repeatedly, all
because of his race.3
During the proceedings, the IJ also examined police
reports -- including Officer D'Alba's -- and other government
documents, such as those prepared by DHS, identifying Miranda as
a gang member. After finding these documents admissible, the IJ
allowed Miranda a "full opportunity" to rebut their reliability.
Miranda then went on to testify that he had never told anyone that
he used to be a gang member; that he had never associated with
anyone belonging to a gang; and that he had "never been associated
with any gang."
On August 25, 2017, the IJ issued a twenty-seven page
opinion denying Miranda's application for refugee status and
ordering his removal to El Salvador. The opinion lists all the
documentary evidence that the IJ examined, including a memorandum
of Miranda's "verified gang affiliation" based on the HSI database
3 Virginia perpetrated these beatings with belts, broomsticks,
and electric cords, and they were consistently accompanied by
racial slurs referring to Miranda's dark complexion. Miranda was
also deprived of food and medical care and forced to do
agricultural work. His testimony further revealed that, out of
all the children under Virginia's care, only those with dark skin
received this treatment.
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and other government sources, as well as the reports detailing his
encounters with the Chelsea Police Department.
The IJ deemed credible Miranda's testimony about the
abuse he experienced in El Salvador and found that Miranda faced
past persecution on account of his race. Nonetheless, the IJ
concluded that Miranda did not establish a well-founded fear of
future persecution. The IJ made this determination in light of
Miranda's testimony that his aunt Virginia is now deceased and the
absence of evidence elsewhere in the record indicating that other
actors would subject Miranda to similar mistreatment animated by
racial animus.
The IJ also rejected Miranda's claim for asylum based on
his belonging to a particular social group of "male minor children
who are dependent and who cannot leave their families." According
to the IJ, Miranda did not establish his membership in such a
social group because he is no longer a minor and the record shows
that he was in fact able to leave his family twice while living in
El Salvador.4
4 The IJ also rejected Miranda's claim that he was a member of a
protected social group made up of "family members of individuals
who have been executed by gang members" because they resisted gang
membership. Miranda, however, does not seek our review of the
agency's denial of asylum based on this proposed category.
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Next, the IJ determined that Miranda was ineligible for
humanitarian asylum. Critical to this determination was the IJ's
adverse credibility finding with regards to Miranda's testimony
about his gang affiliations in El Salvador and the United States.
The IJ explained that "the record is dotted with inconsistent
statements" about Miranda's connections to gangs in view of his
testimony denying any involvement and the documentary evidence
from multiple government sources revealing the contrary. This
left the IJ "unable to discern the extent of [Miranda's] gang
connections." Thus, despite finding that Miranda suffered past
persecution, the IJ declined to exercise his discretion to grant
humanitarian asylum because of the evidence showing that Miranda
"associated with gang members and gang affiliates." Finally, the
IJ found that Miranda's claim for withholding of removal failed
because he could not meet the lower burden for asylum and that he
did not show the requisite level of government involvement to
access protection under the CAT.5 Miranda thereafter appealed to
the BIA, which dismissed his appeal and affirmed the IJ on
February 5, 2018.
Miranda now seeks our review of the BIA's decision. He
claims that the BIA erred in upholding the IJ's factual findings
5 Miranda does not challenge the agency's denial of withholding
of removal or relief under the CAT.
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about his fear of future race-based persecution and his belonging
to a protected social group. Miranda also challenges the agency's
denial of humanitarian asylum. Specifically, he argues that it
was an abuse of discretion for the IJ to deny him humanitarian
asylum because of his purported gang affiliation. Lastly, Miranda
contends that the agency violated his due process rights by relying
on gang incident reports that he was unable to refute.
II.
Where, as here, the BIA embraces the IJ's decision but
adds its own gloss, we review both decisions as a unit. Urgilez
Méndez v. Whitaker, 910 F.3d 566, 569 (1st Cir. 2018); see also
Aguilar-De Guillen v. Sessions, 902 F.3d 28, 32 (1st Cir. 2018).
"Judicial review of the denial of asylum is deferential."
Urgilez, 910 F.3d at 569 (citing 8 U.S.C. § 2152(b)(4)(B)).
"[D]enial of asylum must be affirmed unless the administrative
record unequivocally indicates error." Id. at 570 (citation
omitted).
We will leave the agency's factual findings -- such as
credibility determinations and whether persecution occurred
because of a protected ground -- undisturbed so long as they are
supported by substantial evidence. See Ordonez-Quino v. Holder,
760 F.3d 80, 87 (1st Cir. 2014); Jabri v. Holder, 675 F.3d 20, 24
(1st Cir. 2012). "Only where the record compels a contrary outcome
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will we reject the IJ's findings." Aguilar-De Guillen, 902 F.3d
at 32-33 (citing Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir.
2014)).
A.
To obtain asylum, an applicant must establish that he
qualifies as a refugee under section 101(a)(42)(A) of the INA. 8
U.S.C. §§ 1101, 1158. A refugee is someone who is "unable or
unwilling" to return to his country of origin "because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." Id. § 1101(a)(42)(A). If a
petitioner proves past persecution, "a presumption of future
persecution follows." Santos-Guaman v. Sessions, 891 F.3d 12, 17
(1st Cir. 2018). The Government, however, may rebut this
presumption by showing either a fundamental change in
circumstances that eliminates the fear of persecution or the
reasonable expectation that the applicant can avoid future
persecution by relocating within the country. Id. (citing 8
C.F.R. § 208.13(b)(1)(i)(A)-(B)).
We first direct our attention to the argument that it
was an error for the BIA to affirm the IJ's factual findings that
Miranda does not belong to a particular social group and that he
will not face race-based persecution if repatriated to El Salvador.
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We conclude that it was not, as substantial evidence supports both
determinations.
As noted before, Miranda claimed membership in a
"particular social group" made up of "male minor children dependent
on and who cannot leave their families." But the IJ found that
Miranda did not belong to such a group because he is no longer a
minor and is neither dependent on his family nor unable to leave
it. Nothing in the record contradicts the IJ's findings. It is
unquestionable that Miranda is now twenty-one years old, a fact
that means he is no longer in his purported social group of "minor
children." Moreover, the record presents evidence that Miranda
was able to leave his abusive family members, even as a minor in
El Salvador. Miranda, for instance, escaped from the abuse he
suffered at the hands of his aunt Virginia by choosing to go live
with another aunt. Thus, there is substantial evidence in the
record that supports the IJ's finding, affirmed by the BIA, that
Miranda was not a member of the social group he invoked to seek
asylum.
The IJ did find that Miranda established past
persecution on the basis of his race, thus entitling him to a
presumption of a well-founded fear of future persecution. The
agency determined, however, that the Government successfully
rebutted this presumption by demonstrating that the circumstances
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leading to Miranda's past persecution in El Salvador have
fundamentally changed because of the death of his aunt Virginia.
See Uruci v. Holder, 558 F.3d 14, 19 (1st Cir. 2009) ("The
presumption can be rebutted, however, if 'a report demonstrates
fundamental changes in the specific circumstances that form the
basis of a petitioner's presumptive fear of future persecution.'"
(quoting Chreng v. Gonzáles, 471 F.3d 14, 22 (1st Cir. 2006))).
And Miranda does not allege a fear of race-based persecution by
any other parties. Here again, we spot nothing in the record to
justify overturning the IJ's finding.
Under the applicable deferential standard of review, we
conclude there is substantial evidence to support the IJ's findings
-- accepted by the BIA -- that Miranda is no longer a member of
his proposed social group composed of minors and that circumstances
in El Salvador have sufficiently changed so as to render his fears
of future persecution unfounded.
B.
We now shift our focus to the agency's denial of
humanitarian asylum, which Miranda contends was also erroneous.
Even if the Government rebuts the presumption of future
persecution -- like it did here -- the immigration courts retain
the discretion to award asylum for humanitarian reasons to an
applicant who has suffered past persecution. See Martínez-Pérez
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v. Sessions, 897 F.3d 33, 42 (1st Cir. 2018); see also Ordonez-
Quino, 760 F.3d at 94. "To qualify for humanitarian asylum based
on the severity of past persecution, an applicant must prove that
he experienced extraordinary suffering in the past. In other
words, an [applicant] must show past persecution so severe that
repatriation would be inhumane." Ordonez-Quino, 760 F.3d at 94
(alteration in original) (internal quotation marks omitted)
(citation omitted); see also Precetaj v. Holder, 649 F.3d 72, 77
(1st Cir. 2011) ("[T]he paradigm case is one in which so much abuse
has been directed against the victim that the suffering is
projected into the future and that a return of the applicant to
the place where the harm was inflicted would magnify the prior
suffering."). This is a "last-resort form of relief that is
difficult to obtain and rarely granted." Precetaj, 649 F.3d at
78. Here, the IJ denied humanitarian asylum after concluding that
the hardship Miranda might face if returned to El Salvador was
overcome by evidence of his involvement with gangs and gang
members.
Miranda asks that we overrule the denial of humanitarian
asylum because the agency's decision was informed by "erroneous,
unauthenticated, prejudicial, and impermissible speculative
evidence." He takes particular issue with the police and other
government reports considered by the IJ that indicated his
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association with MS-13 and its affiliates. Among other things,
Miranda insists that the police reports contain hearsay, present
inconsistencies "that at least cast suspicion on their
reliability," and that such inconsistencies should have led the IJ
"to wonder if the [police officers] had ulterior motives when
preparing them." According to Miranda, his own testimony -- that
he was under the effects of anesthesia in a hospital bed when he
told the police about his past affiliation with MS-13 -- "casts
suspicion on the narratives in the police report." Miranda also
uses the alleged unreliability of these reports to challenge the
IJ's refusal to deem credible his testimony denying gang
involvement.
Nothing in the record compels us to find that the police
and other government reports were so obviously unreliable as to
render the agency's reliance on them an abuse of the agency's wide
discretion. See Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st
Cir. 2015) ("Immigration judges have broad discretion over the
conduct of immigration court proceedings."). Here, not only did
the IJ find the reports reliable and that their use would not be
fundamentally unfair, but he also gave Miranda an opportunity to
rebut their reliability. This is exactly what our precedents
required the IJ to do. See, e.g., Arias-Minaya v. Holder, 779
F.3d 49, 54 (1st Cir. 2015) (upholding admissibility of police
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report after the agency determined its reliability and fairness
and offered petitioner "an opportunity to challenge its veracity
and refute its contents").
As we recently reiterated in Cabas v. Barr, since the
rules of evidence do not apply in immigration proceedings, the
evidentiary standards deployed by immigration judges "are
generally more lax." 928 F.3d 177, 184 (1st Cir. 2019) (citing
Castilho de Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir. 2009)).
This means, for instance, that -- when considering discretionary
decisions like whether to grant humanitarian asylum -- immigration
judges can review police reports containing hearsay, "even if an
arrest did not result in a charge or conviction, because the report
casts probative light on [the applicant's] character." Mele v.
Lynch, 798 F.3d 30, 32 (1st Cir. 2015). Similarly, authentication
in the immigration context "requires nothing more than proof that
a document or thing is what it purports to be," and it is undisputed
that such a requirement was fulfilled here. Cabas, 928 F.3d at
184 (citing Yongo v. INS, 355 F.3d 27, 30-31 (1st Cir. 2004)). A
presumption of regularity also attaches to the reports that Miranda
contests, and he was unable to rebut that presumption with clear
evidence. See Tota v. Gonzáles, 457 F.3d 161, 168 (1st Cir. 2006)
("[I]n the absence of clear evidence to the contrary, courts
presume that [government agencies] have properly discharged their
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official duties." (alterations in original) (quoting United States
v. Armstrong, 517 U.S. 456, 464 (1996))).
The IJ's decision not to grant humanitarian asylum was
in any event further informed by evidence other than the government
reports. In the almost three full pages that his twenty-seven
page opinion dedicated to this claim, the IJ notes that he also
accounted for the testimony of a school counselor and Miranda's
sister as "negative factors" suggesting his involvement with gangs
and thereby weighing against the grant of humanitarian asylum.6
Conversely, the IJ considered a myriad of "humanitarian factors"
that favored the grant of asylum to Miranda. These included
Miranda's history of "suicidal ideations, depression, as well as
symptoms" of PTSD; the "thoughts of hopelessness" that he expressed
to a social worker; the medical complications that he experienced
as a result of the abuse and neglect he suffered in El Salvador;
and his ties to immediate family living in the United States.
This comprehensive weighing of factors lead the IJ to acknowledge
that "[t]he removal of an individual who suffers from ongoing
mental and physical health is a challenging one" and that Miranda's
"removal to El Salvador will place a hardship on him and his
6 The IJ further noted that Miranda did not attempt to rebut his
sister's negative testimony by calling her as a witness, even
though she was available to testify.
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health." After considering all available evidence, the agency
nonetheless remained "unpersuaded that [Miranda] will refrain from
gang affiliations that pose a danger to the community at large"
and declined to grant him humanitarian asylum.
The abuse that Miranda experienced in El Salvador was
undoubtedly deplorable. But we conclude that substantial evidence
supports both the agency's finding of adverse credibility with
regards to Miranda's gang-affiliation testimony and the decision
to withhold humanitarian asylum.7 Cf. Cantarero v. Holder, 734
F.3d 82, 86 (1st Cir. 2013) (noting that "Congress did not mean to
grant asylum to those whose association with a criminal syndicate
has caused them to run into danger").
III.
Finding that substantial evidence supports the findings
of the immigration court, we deny Miranda's petition for judicial
review.
Denied.
7 Miranda also argues that the agency's consideration of the
government reports affiliating him with gangs violated his right
to due process under the Fifth Amendment. In the immigration
context, "[t]o make out a due process violation, a claimant must
show that a procedural error led to fundamental unfairness as well
as actual prejudice." Conde Cuatzo, 796 F.3d at 156. Having
discerned no procedural error, we need not entertain this argument
any further.
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