Hugo Aguilar Montecinos v. Merrick B. Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2333
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Hugo Aguilar Montecinos
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of United States
lllllllllllllllllllllRespondent
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No. 22-1438
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Hugo Aguilar Montecinos
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 13, 2022
Filed: February 10, 2023
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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ARNOLD, Circuit Judge.
After conceding that he was removable from the United States for entering the
country without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), Hugo
Aguilar Montecinos applied for asylum on the ground that gangs in his native
Honduras had persecuted him in the past and that he feared persecution from them
should he return there. An immigration judge and the Board of Immigration Appeals
determined, as relevant, that any harm Aguilar had suffered bore no connection to his
political opinions and denied his application. Aguilar petitions our court for review
of the agency's decision and his motion to reconsider that decision, and we deny the
petitions.
In his initial application for asylum, Aguilar explained that he had been
"threatened by the gang MS-13 because they wanted me to help collect 'rent' from
people because I had a car," and he expressed a fear that, should he return to
Honduras, "police and Ms13 can torture you, [and] the authorities would never find
out." In a supplement to that application Aguilar provided a declaration explaining
that, one afternoon in November 2012, four armed people robbed him and his wife
of money and personal documents, among other things, and threatened to kill them
if they told police. A week later Aguilar found a note on his car stating that "we have
all of your information, where you live, what you do, what can you own, and you
move around a lot in your car." It then said that "we want you [to] help us collect the
war tax," and if he did, it "can save your life also your brothers, your wife's and
children." Finally, the note warned, "We will be calling and we will be aware of you
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and if you do not do it, you will be dead. MS13." Aguilar testified before an
immigration judge that he didn't contact police "[b]ecause many times the police is
actually working with them." Aguilar reported that, after he found the note, "[t]hey
kept calling me, threatening me, and leaving me intimidating messages." He testified
that they threatened to kill him and that they called two or three times a week for the
next month or two. When asked why he thought the gang had selected him to collect
the war tax, he surmised, "I think they did it because I have to go all over the country,
and I am an honest person with no problems."
Aguilar also provided a statement from his wife, who still lives in Honduras,
in support of his application. She reported that, in October 2016, her neighbors were
the victims of an armed robbery at their home. At some point during the robbery, the
culprits told the neighbors "sorry man, made a mistake" and left. They then knocked
on Aguilar's wife's door, but she didn't answer and wasn't harmed. Aguilar appears
to suspect that the robbers were gang members who were looking for him or his
family. Aguilar also submitted evidence that Honduran gangs like MS-13, sometimes
with the help of police, have demanded that certain people who travel throughout the
country collect a "war tax" and that many people have been killed for refusing to do
so. He also testified that Honduran gangs are so big that "they are actually part of the
government." Finally, he provided his mother's death certificate as evidence that
gangs were targeting his family, though his attorney admitted that the certificate
doesn't say that someone murdered Aguilar's mother.
In rejecting the claim that any actual or imputed political opinion of Aguilar's
was at least one central reason for his mistreatment, the IJ explained that Aguilar "has
never expressed any political opinion or anti-corruption sentiment" that could be
characterized as political opinion, "nor is there any evidence that the gang has
imputed to him such a position." The IJ noted that mere resistance to assisting a
criminal enterprise is insufficient to qualify as political opinion. The IJ also pointed
out that it appeared the gang targeted Aguilar "because he had a car and traveled to
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different parts of Honduras, and therefore, would be a useful tool to further the
criminal efforts of the MS 13 Gang."
The BIA upheld the IJ's decision, explaining that the IJ "did not clearly err in
finding the gang members were not and would not be motivated to target the
respondent because of his actual or imputed political opinion." It rejected Aguilar's
contention that his refusal to collect the "war tax was viewed as an act of resistance
to the gang, which operates as a de facto government in Honduras," explaining that
the IJ could reasonably believe that the dispute between Aguilar and the gang was a
product of "general criminality," and not an effort to punish someone for his political
views. Aguilar also failed to provide any evidence, the BIA said, that the gang
imputed a political opinion to him, and it appeared that the gang targeted him merely
for economic gain.
Aguilar maintains that the BIA erred in holding that no "nexus" exists between
any actual or imputed political opinion and Aguilar's past mistreatment or current
fears. To be eligible for asylum, Aguilar must show that he is a refugee, see 8 U.S.C.
§ 1158(b)(1)(A), who is unwilling or unable to return to his home country "because
of persecution or a well-founded fear of persecution on account of . . . political
opinion." See id. § 1101(a)(42)(A). To demonstrate the requisite nexus between
Aguilar's persecution and his political opinion, he must show that "political opinion
was or will be at least one central reason for persecuting" him. See id.
§ 1158(b)(1)(B)(i). Though a central reason need not be the sole reason, it must be
more than incidental or tangential. See Gomez-Rivera v. Sessions, 897 F.3d 995, 998
(8th Cir. 2018). Because we review the agency's nexus holding for substantial
evidence, we will reverse only if we determine that a reasonable factfinder would
have to conclude that Aguilar's actual or imputed political opinion motivated his
persecutors' actions sufficiently to qualify him for asylum. See Silvestre-Giron v.
Barr, 949 F.3d 1114, 1117–19 (8th Cir. 2020).
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An asylum applicant's refusal to assist or join a gang is often unrelated to the
applicant's political opinions. For example, in Marroquin-Ochoma v. Holder, 574
F.3d 574, 576 (8th Cir. 2009), an applicant had received threatening notes and phone
calls from a gang in her native Guatemala demanding money, but she resisted and
fled. The applicant asserted before our court that the gang's "threats were motivated
by an anti-gang political opinion that the gang members imputed to her based on her
refusal to join the gang or otherwise succumb to their extortionate demands." See id.
at 577. We upheld the agency's determination to the contrary and rejected the
applicant's contention that the gang wasn't a "garden variety street gang" but
"political in nature" and so "the mere refusal to join the gang is therefore sufficient
to find an imputed political opinion." See id. at 578. We explained that "evidence that
the gang is politically minded could be considered evidence that the gang members
would be somewhat more likely to attribute political opinions to resisters," but "a
generalized 'political' motive underlying the gang's forced recruitment would be
inadequate to establish" that "the gang believes resistance to those recruitment efforts
is based on an anti-gang political opinion." See id. After all, even a person who
supports a gang might refuse to assist it for reasons other than political opinion, such
as fear that gang rivals might target the applicant or "fear of combat, a desire to
remain with one's family and friends, a desire to earn a better living in civilian life,
to mention only a few." See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482 (1992). The
record here simply does not contain much evidence, if any, that Aguilar's refusal to
assist the gang, even one as powerful and politically influential as MS-13, was meant
to reflect a political opinion, or that the gang thought his refusal was due to a political
opinion.
Aguilar asserts that the IJ and BIA did not carefully examine the record but
simply assumed that any opposition to a criminal organization is necessarily
apolitical. It is true that "careful attention to the particular circumstances surrounding
the alleged persecution remains necessary even if the persecution is generally
categorized as extortion or recruitment." See Marroquin-Ochoma, 574 F.3d at 577.
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The circumstances could show that, even if a gang's actions amounted to extortion,
the gang might have been motivated to persecute the victim because of a statutorily
protected ground. For example, in a case Aguilar relies on, De Brenner v. Ashcroft,
388 F.3d 629, 637 (8th Cir. 2004), our court concluded that it was "an
oversimplification" to characterize the threats made in that case "as simple extortion
without carefully examining the record for particularized evidence of imputed
political opinion." The record there showed that an asylum applicant who resisted
gang recruitment in Peru was eligible for asylum because her persecution was
sufficiently related to gang-imputed political opinions. The gang had labeled the
applicant and her family as members and supporters of the ruling party. It had also
mistakenly identified her as the personal secretary of a senior, active member of the
party. And the record showed that the persecutors had imputed certain political
opinions to all wealthy Peruvians like the applicant. See id. at 636–37. But the record
here contains nothing of the sort.
Aguilar's contention that the IJ and BIA failed to examine the record
adequately in reaching their conclusions is untenable. The IJ recounted the gang's
interactions with Aguilar and concluded that he never expressed any political opinion
or anti-corruption sentiment, or that the gang imputed those things to
him—conclusions that find ample support in the record. We read the IJ's opinion to
say that, unless the record provides some reason to think that a gang's persecution of
an asylum applicant relates to the applicant's actual or imputed political opinions,
refusal to comply with gang demands alone is insufficient to demonstrate the requisite
nexus. That seems unexceptionable. The BIA similarly recounted the gang's
interactions with Aguilar, pointed out that he hadn't provided evidence that gang
members imputed a political opinion to him, and noted that it was not error for the IJ
to hold that the gang's motivation was economic in nature. The agency therefore did
not take the improper shortcut that Aguilar says it did.
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Aguilar also maintains that we should grant his petition because the BIA failed
to address his request that it take administrative notice of an indictment in the
Southern District of New York against the brother of Honduras's president for drug
trafficking. Aguilar says that the allegations in the indictment show "the Honduran
government's deep involvement with organized crime made the MS-13 functionally
a quasi-governmental entity" and so blurs the line between government and gang.
We agree with Aguilar that the BIA, in resolving his appeal of the IJ's decision
and his motion to reconsider, appeared to misapprehend either his request or its
authority to take administrative notice should it choose to do so. See 8 C.F.R.
§ 1003.1(d)(3)(iv). But we think the BIA's apparent error was harmless because we
have "not the slightest uncertainty as to the outcome of [the] proceeding" were we to
remand the case, as any error "clearly did not affect the outcome" of Aguilar's appeal
or his motion to reconsider. See Prohibition Juice Co. v. U.S. Food & Drug Admin.,
45 F.4th 8, 24 (D.C. Cir. 2022). The indictment was largely duplicative of the
country-conditions evidence that Aguilar had already submitted to the BIA in that it
tended to show that Honduras is plagued by corruption and that certain government
officials and members of the police assist gangs in their drug-trafficking pursuits.
Though the indictment provides a specific example of potential corruption, we do not
think it would have influenced the BIA to reach a different result, especially since it
does nothing to cure the deficiencies in Aguilar's asylum request, namely, the lack of
evidence that his resistance to the gang had anything to do with an actual or imputed
political opinion.
Despite Aguilar's contention to the contrary, our determination that any error
was harmless does not violate the so-called Chenery doctrine. Under that doctrine,
"a reviewing court, in dealing with a determination or judgment which an
administrative agency alone is authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency," and "[i]f those grounds are
inadequate or improper, the court is powerless to affirm the administrative action by
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substituting what it considers to be a more adequate or proper basis." See Sec. &
Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947). But as our sister circuits
have explained, the Chenery doctrine doesn't prohibit courts from considering
whether an agency error is harmless. See, e.g., Prohibition Juice, 45 F.4th at 24;
Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010); Save Our Heritage, Inc. v.
F.A.A., 269 F.3d 49, 61 (1st Cir. 2001); see also Mass. Trs. of E. Gas & Fuel Assocs.
v. United States, 377 U.S. 235, 246–48 (1964). The Administrative Procedure Act
requires courts, in reviewing agency action, to take "due account" "of the rule of
prejudicial error," see 5 U.S.C. § 706, and that is what we do here.
Aguilar also asserts that the BIA's reliance on Matter of A-B-, 27 I. & N. Dec.
316 (A.G. 2018) (Matter of A-B- I), requires that we grant his petitions because that
decision has been vacated. See Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021)
(Matter of A-B- II). Indeed, the BIA relied on Matter of A-B- I when, in explaining
that Aguilar had not established a nexus between the gang's mistreatment of him and
his political opinions, it said "that acts of personal or private violence would not
ordinarily satisfy the nexus prong of persecution analysis." The attorney general,
though, vacated Matter of A-B- I at least in part because he thought it "could be read
to create a strong presumption against asylum claims based on private conduct." See
Matter of A-B- II, 28 I. & N. Dec. at 309.
We nonetheless conclude that remand is unnecessary because Aguilar already
brought this matter to the BIA's attention, and the BIA held that vacatur of Matter of
A-B- I didn't affect Aguilar's asylum application. In so holding, the BIA explained
that, even without a presumption against asylum claims involving persecution by
private actors, Aguilar had failed to show that his actual or imputed political opinions
had anything to do with the gang's mistreatment of him. In other words, Aguilar's
asylum application failed under "legal authority that remains valid." We discern no
error on this point.
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Finally, Aguilar maintains that the BIA erred when it refused to consider his
request for withholding of removal. See 8 U.S.C. § 1231(b)(3). In deciding Aguilar's
appeal, the BIA said that Aguilar had not challenged the IJ's ruling on withholding
of removal, and so it deemed the matter waived. When Aguilar moved the BIA to
reconsider, it explained that he didn't raise any meaningful arguments regarding
withholding of removal. Aguilar says that he did and that the arguments he makes
regarding his asylum application apply with equal force to his request for withholding
of removal.
Aguilar had to raise issues with the agency before challenging their resolution
here. See Bakor v. Barr, 958 F.3d 732, 739 (8th Cir. 2020). If a petitioner "fails to
raise a particular issue when he appeals to the Board, the petitioner has not exhausted
his administrative remedies with respect to that issue." Ramirez v. Sessions, 902 F.3d
764, 770 (8th Cir. 2018). We agree with the BIA that Aguilar failed to appeal the IJ's
determination on withholding of removal. While Aguilar adverted to withholding of
removal a few times in the relevant brief, he did so only when reciting the actions that
the IJ took or the names of documents at issue. On the other hand, he clearly
challenged the IJ's asylum determination, dedicating a large portion of his brief to the
"substantive requirements for asylum" and concluding that he "is statutorily eligible
for asylum." So we find no fault with the BIA interpreting Aguilar's appeal as relating
only to the IJ's asylum decision.
Petitions denied.
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