Mazariegos-Paiz v. Holder , 734 F.3d 57 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1382
HENRY MAZARIEGOS-PAIZ,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Howard,
Circuit Judges.
Randy Olen on brief for petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney General,
Civil Division, Anthony C. Payne, Senior Litigation Counsel, Office
of Immigration Litigation, and Ali Manuchehry, Trial Attorney,
Office of Immigration Litigation, Civil Division, U.S. Department
of Justice, on brief for respondent.
October 25, 2013
SELYA, Circuit Judge. Our consideration of the petition
for judicial review in this immigration case starts with a
jurisdictional puzzle. After piecing together this puzzle, we
hold, as a matter of first impression in this circuit, that the
administrative exhaustion requirement is satisfied as to particular
issues when the agency, either on its own initiative or at the
behest of some other party to the proceedings, has addressed those
claims on the merits, regardless of whether the petitioner himself
raised them. This holding establishes our authority to review the
issues advanced in the present petition. Concluding, as we do,
that those issues lack bite, we deny the petition.
I. BACKGROUND
The historical facts are straightforward. The
petitioner, Henry Mazariegos-Paiz, a Guatemalan national, entered
the United States without inspection on August 20, 2006. He
reunited there with his cousin, Deny Adolfo Mazariegos-Mazariegos,
who had entered illegally at an earlier date.
On February 11, 2008, the Department of Homeland Security
(DHS) commenced removal proceedings against the petitioner. See 8
U.S.C. § 1182(a)(6)(A)(i). He conceded removability, but applied
for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (CAT). In support, he claimed
both past persecution and a well-founded fear of future persecution
based on both his political opinion and his membership in a
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particular social group.1 He also claimed a likelihood that he
would face torture if he returned to Guatemala.
The DHS also initiated removal proceedings against his
cousin Deny, who likewise conceded removability and cross-applied
for similar relief. The two sets of proceedings were consolidated.
Before the consolidated proceedings got underway, the
Immigration Judge (IJ) noted, without objection, that the only
files on record were each man's application for asylum and
withholding of removal (Form I-589). Deny took the lead before the
agency and testified that he and the petitioner left Guatemala
because they had become targets of persecution. Specifically, he
asserted that in August of 2005 — roughly one year after their
political party, the Great National Alliance (GANA), won the
general election — a group of men, ostensibly from the rival
Guatemalan Republican Front (FRG), beat the cousins, threatened
their lives, and warned that their family would be wiped out unless
they "withdrew from politics."
On cross-examination, Deny was asked why his application
for withholding of removal was unsupported by affidavits or other
corroborating evidence. His counsel interjected that she had
prepared affidavits for her clients and had assumed that they were
on file with the Immigration Court. She then produced three
1
The petitioner has since abandoned his quest for asylum, and
we do not refer again to that ground for relief.
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untranslated Spanish-language documents. Two of these — a police
report and a medical report — pertained to an attack against the
petitioner's uncle. The third document was a copy of Deny's report
to a Guatemalan human rights counselor about the August 2005
incident.
Deny's attorney then requested a continuance in order to
submit the missing affidavits, translate the proffered documents,
and supply other corroborating evidence. Observing that the case
had been pending for over a year, the DHS opposed this request.
The IJ denied the continuance and marked the untranslated documents
for identification only.
When it came time for the petitioner to testify, his
counsel offered to waive direct examination. She told the IJ that
the petitioner's testimony was "expected to corroborate that of
[his cousin] so it would be mostly repetitive." The IJ accepted
this representation, and the DHS proceeded to cross-examine the
petitioner.
At the conclusion of the hearing, the IJ denied the
cousins' applications for withholding of removal and protection
under the CAT. She grounded this decision principally on a
determination that neither man had testified credibly. In this
regard, she noted numerous discrepancies between the applications
for relief and the testimony offered at the hearing. She found
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that the story that the two cousins told was vague, implausible,
and wholly uncorroborated.
Both the petitioner and his cousin appealed to the Board
of Immigration Appeals (BIA). In his brief, the petitioner focused
solely on the IJ's (allegedly erroneous) decision to consolidate
the two cases. In contrast, Deny's brief challenged both the
adverse credibility determination and the refusal to continue the
hearing.
The BIA consolidated the two appeals, adopted and
affirmed the IJ's adverse credibility determination, and upheld the
other disputed rulings. The BIA made no distinction as to who had
raised which claims but, rather, proceeded as if each man had
advanced every claim. Based on the foregoing, the BIA affirmed the
orders of removal.
The petitioner secured new counsel and filed this timely
petition for judicial review. For aught that appears, his cousin
has not sought judicial review.
II. ANALYSIS
We divide our analysis into three segments. First, we
ponder the existence of subject-matter jurisdiction. Thereafter,
we mull two separate merits-related rulings.
A. Jurisdiction.
The government argues that this court lacks subject-
matter jurisdiction over the petitioner's claims because he failed
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to exhaust his administrative remedies with respect to those
claims. In elaboration, it points out that even though the
petitioner in this venue tries to advance two merits-related claims
— one dealing with the adverse credibility determination and one
dealing with the denial of a continuance — he, himself, did not
raise either claim before the BIA. The petitioner's best chance to
parry this thrust boils down to the following sequence of events:
his case and his cousin's were consolidated; his cousin squarely
raised before the BIA the issues that the petitioner now seeks to
argue; and the BIA actually adjudicated those issues. So viewed,
this sequence sufficiently exhausted the issues.
We begin our inquiry into the existence of subject-matter
jurisdiction with first principles. As a court of limited
jurisdiction, our authority to act in any given case depends upon
the extent to which Congress has imbued us with jurisdiction. See
Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d
136, 138 (1st Cir. 2004). Pertinently for present purposes,
Congress has granted us jurisdiction to review non-constitutional
claims arising in the removal context only if "the alien has
exhausted all administrative remedies available to the alien as of
right." 8 U.S.C. § 1252(d)(1). This exhaustion requirement is
jurisdictional; that is, it constitutes a limitation on our power
of review. See Athehortua-Vanegas v. INS, 876 F.2d 238, 240 (1st
Cir. 1989).
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We have interpreted this exhaustion requirement as
demanding that issues be exhausted in agency proceedings. See,
e.g., Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004);
Ravindran v. INS, 976 F.2d 754, 761 (1st Cir. 1992). Ordinarily,
then, an alien who neglects to present an issue to the BIA fails to
exhaust his administrative remedies with respect to that issue and,
thus, places it beyond our jurisdictional reach.
This method of exhaustion, however, is not exclusive. We
think that, short of an alien's direct presentation of an issue to
the agency, there is at least one other way in which exhaustion may
occur. We explain briefly.
The primary rationale behind the exhaustion requirement
is apparent. At bottom, the role of a court on a petition for
judicial review of agency action is to appraise the agency's
handiwork. Were the court free to delve into the merits of issues
not presented to the agency, it would effectively usurp the
agency's function. See Unemp't Comp. Comm'n v. Aragon, 329 U.S.
143, 155 (1946). The exhaustion requirement stands as a sentinel
against such usurpation. At the same time, it creates a carefully
calibrated balance of responsibilities, affording the parties the
full benefit of the agency's expertise and allowing the agency the
first opportunity to correct its own bevues. See SEC v. Chenery
Corp., 332 U.S. 194, 200-01, 209 (1947); Sidabutar v. Gonzales, 503
F.3d 1116, 1121 (10th Cir. 2007).
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In the classic case, this rationale permits a finding of
exhaustion when a party has squarely presented an issue to the
agency. See, e.g., Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir.
2007). But it also permits a finding of exhaustion whenever the
agency has elected to address in sufficient detail the merits of a
particular issue. Cf. INS v. Orlando Ventura, 537 U.S. 12, 16
(2002) (emphasizing importance of allowing agency to address
questions in first instance). Where an agency has opted to follow
the latter course, there is no logical reason why exhaustion should
turn on which party (if either) brought the issue to the agency's
attention. We hold, therefore, that an issue is exhausted when it
has been squarely presented to and squarely addressed by the
agency, regardless of which party raised the issue (or, indeed,
even if the agency raised it sua sponte).
We do not write on a pristine page. Our holding today is
consonant with the holdings of several of our sister circuits.
See, e.g., Lopez-Dubon v. Holder, 609 F.3d 642, 644-45 (5th Cir.
2010); Lin v. Att'y Gen., 543 F.3d 114, 123-26 (3d Cir. 2008);
Sidabutar, 503 F.3d at 1112; Abebe v. Gonzales, 432 F.3d 1037, 1041
(9th Cir. 2005) (en banc); Hassan v. Gonzales, 403 F.3d 429, 433
(6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir.
2004). But see Amaya-Artunduaga v. Att'y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006) (per curiam).
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In addition, our holding is structurally sound: by
addressing an issue on the merits,2 an agency is expressing its
judgment as to what it considers to be a sufficiently developed
issue. When a court defers to that exhaustion-related judgment, it
avoids judicial intrusion into the domain that Congress has
delegated to the agency. See Orlando Ventura, 537 U.S. at 16. We
think it follows that if the BIA deems an issue sufficiently
presented to warrant full-dress consideration on the merits, a
court should not second-guess that determination but, rather,
should agree that such consideration exhausts the issue. See
Sidabutar, 503 F.3d at 1119-20.
With this framework in place, we can make short shrift of
the government's argument. In this case, the BIA undertook a
developed discussion of the merits-related issues that the
petitioner now seeks to raise. Consequently, this court has
jurisdiction to consider those issues notwithstanding the fact that
it was Deny, not the petitioner, who urged them before the BIA.
2
There is some disagreement among the courts of appeals as to
how deeply an agency, acting sua sponte, must probe an issue in
order to exhaust it. Compare, e.g., Sidabutar, 503 F.3d at 1122
(explaining that the sua sponte exhaustion rule should be narrowly
applied to instances in which the BIA issues a full explanatory
opinion or a discernible substantive discussion on the merits),
with, e.g., Hassan, 403 F.3d at 433 (finding exhaustion despite
absence of extended agency discussion). The case at hand does not
require us to enter into this debate, and we take no view on the
matter.
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B. Adverse Credibility Determination.
The IJ rested her decision in this case largely on an
adverse credibility determination. She found, in essence, that the
petitioner and his cousin — who had subscribed to a common story —
were not credible. The petitioner challenges that adverse
credibility determination.
On a petition for judicial review in an immigration case,
our customary focal point is the opinion of the BIA. But when "the
BIA adopts portions of the IJ's findings while adding its own
gloss, we review both the IJ's and the BIA's decisions as a unit."
Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). So it is here.
Our review is deferential. We assay findings of fact,
including credibility determinations, under the familiar
substantial evidence standard. See López-Castro v. Holder, 577
F.3d 49, 52 (1st Cir. 2009). This standard requires us to accept
the agency's factual findings as long as they are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (internal quotation marks omitted). This means that the
agency's factual findings must endure unless the record is such as
to compel a reasonable factfinder to reach a contrary conclusion.
See Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008); Laurent v.
Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004).
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In the case at hand, the supportability of the adverse
credibility determination is controlled by the REAL ID Act of 2005.
Under that regimen, the IJ is directed to consider all relevant
factors, including but not limited to the alien's responsiveness,
the consistency (or lack of consistency) between his written and
oral statements, and the overall plausibility of his tale. See 8
U.S.C. § 1158(b)(1)(B)(iii). In addition, the IJ is encouraged to
weigh the presence or absence of corroborating evidence. See id.
§ 1158(b)(1)(B)(ii); see also Balachandran v. Holder, 566 F.3d 269,
273 (1st Cir. 2009). A reviewing court should assess an IJ's
credibility determination through the prism of the statute and in
light of the totality of the circumstances. See Rivas-Mira v.
Holder, 556 F.3d 1, 4 (1st Cir. 2009).
Against this backdrop, we turn to the petitioner's claim
for withholding of removal. To be eligible for such relief, an
alien "has the burden of proving that, more likely than not, he
would be subject to persecution on account of a statutorily
protected ground should he be repatriated." Pulisir v. Mukasey,
524 F.3d 302, 308 (1st Cir. 2008). The alien can carry this burden
by demonstrating either that he has suffered past persecution on
account of a statutorily protected ground, "thus creating a
rebuttable presumption that he may suffer future persecution" if
repatriated, or that "it is more likely than not that he will be
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persecuted on account of a protected ground upon his return to his
native land." Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).
Here, the petitioner relates his claim of persecution to
his political opinion and his membership in a particular social
group. These two theories coalesce because the social group to
which the petitioner alludes is his political party (the GANA).
The only evidence of persecution on account of political animus,
however, was out of the mouths of the petitioner and his cousin.3
The IJ's adverse credibility determination rendered that evidence
worthless and led inexorably to the rejection of the claim.
The IJ premised her adverse credibility determination on
a series of specific findings. To begin, the IJ questioned Deny's
I-589 application, which chronicled his membership in the FRG.
This was a highly relevant fact because Deny and the petitioner
asserted that the FRG was the source of the alleged persecution.
Deny offered no convincing explanation for this
profession of FRG membership. Although he asserted that his
statement was a mistake, this assertion was undercut by evidence
that his application had been read to him; that he was fully aware
of its contents; and that he had not sought to correct it. Under
these circumstances, we believe that the IJ was entitled not only
3
The IJ determined, at least implicitly, that the
interlocking stories told by the petitioner and his cousin had to
stand or fall together. The petitioner has not challenged this
approach.
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to reject Deny's self-serving explanation but also to doubt his
veracity. See Jiang v. Gonzales, 474 F.3d 25, 28 (1st Cir. 2007)
(explaining that "[w]here there are two plausible but conflicting
views of the evidence, the BIA's choice between them cannot be
found to be unsupported by substantial evidence").
The IJ also concluded that the cousins' account of
threats to wipe out their family unless they refrained from
political activity was implausible. She supported this conclusion
by pointing out that neither of the cousins had ever run for, let
alone held, political office. Nor was there any extrinsic evidence
of political involvement on either man's part. This reasoning is
logical, though not inevitable; and there is nothing in the record
that would compel a reasonable factfinder to deem the tale of the
threat credible.
The IJ also found it troubling that the two cousins
failed to produce any corroborating evidence to confirm that they
had been beaten by FRG adherents; that they had in fact
participated in Guatemalan politics; or that threats had been
directed to their family. Where, as here, corroborating evidence
appears easily obtainable, the absence of such evidence can be
fatal to an alien's application for relief. See Chhay, 540 F.3d at
6. On the facts of this case, the IJ did not act irrationally in
attaching weight to the utter absence of any corroborating
evidence. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir.
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2008) ("[T]he IJ is warranted in weighing in the balance the
existence and availability of corroborating evidence, and the
effect of its non-production.").
To sum up, the IJ made a series of specific factual
findings that, taken together, cogently support her adverse
credibility determination. Accordingly, the adverse credibility
determination must be upheld because it is adequately tied to
substantial evidence in the record. The denial of the petitioner's
application for withholding of removal was, therefore, proper.
This leaves the petitioner's application for protection
under the CAT. To gain relief on this application, he had to prove
that, more likely than not, he would be tortured if removed to his
homeland. See Mariko v. Holder, 632 F.3d 1, 7 (1st Cir. 2011); 8
C.F.R. § 1208.16(c)(2). Because the factual underpinnings of this
claim are inextricably intertwined with the factual underpinnings
of the withholding of removal claim, the IJ's supportable adverse
credibility determination dooms both claims. See Mariko, 632 F.3d
at 7.
C. Continuance.
The petitioner's last claim of error implicates the
denial of his request for a continuance. While an "Immigration
Judge may grant a motion for continuance for good cause shown," 8
C.F.R. § 1003.29, the granting of a continuance rests largely in
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her discretion. See Amouri v. Holder, 572 F.3d 29, 36 (1st Cir.
2009); see also Morris v. Slappy, 461 U.S. 1, 11-12 (1983).
We have jurisdiction to review the petitioner's
allegation of abuse of discretion with respect to the denial of a
continuance, notwithstanding the jurisdictional bar contained in 8
U.S.C. § 1252(a)(2)(B)(ii). See Alsamhouri v. Gonzales, 484 F.3d
117, 121-22 (1st Cir. 2007). We do not find that the agency abused
its discretion here.
Under the applicable regulation, 8 C.F.R. § 1003.29, the
party who seeks a continuance (here, the petitioner) bears the
burden of showing good cause. See Ramchandani v. Gonzales, 434
F.3d 337, 338 (5th Cir. 2005). The petitioner offered no
convincing reason for his failure, over a period of more than a
year, to procure corroborating evidence. By the same token, he
offered no convincing explanation for his failure to have the
untranslated documents put in proper form.4 Parties have an
obligation to exercise due diligence in marshaling evidence. Viewed
in this light, the IJ's denial of the petitioner's mid-trial
request for a continuance was not an abuse of discretion.
4
It is perhaps worthy of mention that only one of these
untranslated documents appears to be directly relevant. That
document is Deny's report to a Guatemalan human rights counselor
about the alleged attack. With respect to that document, the IJ
warrantably found that, even if admitted, it "would fail to cure
the inconsistencies and implausibility in [the petitioner's] case."
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In an attempt to fashion a fallback position, the
petitioner asserts that the denied continuance deprived him of a
fair hearing and, thus, transgressed his right to due process. We
have jurisdiction to review this constitutional claim. See 8
U.S.C. § 1252(a)(2)(D). Our review is de novo. See Chhay, 540
F.3d at 8.
Here, the petitioner received all of the process that was
due. We already have established that the IJ did not abuse her
discretion in denying the request for continuance. See text supra.
That being so, there is no basis for a colorable claim that the
denied continuance somehow produced a fundamentally unfair
hearing.5 See Alsamhouri, 484 F.3d at 124.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we deny the petition for review.
So Ordered.
5
In a related vein, the petitioner suggests that the failure
to furnish corroborating evidence was the result of ineffective
assistance of his former counsel. We lack jurisdiction to consider
this suggestion because the issue was neither raised before, nor
addressed by, the BIA. See Makhoul, 387 F.3d at 80.
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