Ramon Amezola-Garcia v. Loretta E. Lynch ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0235p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RAMON AMEZOLA-GARCIA, a.k.a. Jose Rivera- ┐
Camarena, │
Petitioner, │
│
> No. 15-3328
v. │
│
│
LORETTA E. LYNCH, Attorney General, │
Respondent. │
┘
On Petition for Review of an Order
from the Board of Immigration Appeals.
No. A074387805.
Decided and Filed: April 11, 2016*
Before: BOGGS and ROGERS, Circuit Judges; BERG, District Judge.**
_________________
COUNSEL
ON BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES,
Farmington Hills, Michigan, for Petitioner. Colin J. Tucker, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
*
This decision originally issued as an unpublished opinion filed on April 11, 2016. The court has now
designated the opinion as one recommended for full-text publication.
**
The Honorable Judge Terrence Berg, United States District Judge for the Eastern District of Michigan,
sitting by designation.
1
No. 15-3328 Amezola-Garcia v. Lynch Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. Ramon Amezola-Garcia, a Mexican citizen who was ordered
removed for being present in the United States without having been admitted or paroled, appeals
the Board of Immigration Appeals’s (“BIA’s”) denial of his applications for withholding of
removal and voluntary departure. He primarily argues that the BIA erred by sending his case to
a single-member panel for review rather than to a three-member panel, by rejecting his argument
that his familial relationship with his murdered brother-in-law will subject him to future
persecution in Mexico, and by mischaracterizing the record in its voluntary-departure
determination. While the Government opposes most of Amezola-Garcia’s petition, it concedes
that the BIA’s interpretation of the record in its voluntary-departure determination is problematic
and warrants a remand. In light of the Government’s concession, the voluntary-departure
determination will be remanded to the BIA for reconsideration of its decision. The remainder of
Amezola-Garcia’s petition is without merit.
Amezola-Garcia unsuccessfully attempted to enter the United States in 1996 by
presenting the resident alien card of another. He agreed to return to Mexico in lieu of exclusion
proceedings. In 1997, Amezola-Garcia successfully entered the United States without being
admitted or paroled. Since that 1997 entry, Amezola-Garcia has traveled to Mexico and re-
entered the United States without being admitted or paroled at least four different times (in 1998,
2001, 2003, and 2006).
In 2011, the Department of Homeland Security commenced removal proceedings against
Amezola-Garcia. Before the Immigration Judge (“IJ”), Amezola-Garcia admitted that he was
removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States
without having been admitted or paroled. In another appearance before the IJ, Amezola-Garcia
submitted an application for withholding of removal and relief under the Convention Against
Torture (“CAT”). Because the one-year deadline to seek asylum had elapsed, he did not apply
for asylum. Additionally, in the merits hearing before the IJ, Amezola-Garcia requested
voluntary departure.
No. 15-3328 Amezola-Garcia v. Lynch Page 3
Amezola-Garcia’s application for withholding of removal and CAT relief states that he
fears he will be harmed and tortured on account of his membership in a particular social group if
he returns to Mexico. He identifies his particular social group as “family which has been
targeted by persons the government of Mexico cannot or will not control.” The application lists
Amezola-Garcia’s parents and fifteen siblings as the members of his family, although later
testimony indicated that it is not clear exactly how many siblings he has. With the exception of
two brothers who live in the United States, his parents and all of his remaining siblings (one
sister is deceased) live in Mexico. The application states that Amezola-Garcia’s brother-in-law
was a member of a “government organization of defense for Mexico” and was murdered in 2009
because he and his colleagues were investigating “criminal organizations” on behalf of the
Mexican government. The application further states that “the family still feels scared and
worr[ies] about repercus[s]ions from this investigation.” The application also provides that
cartels and people from Amezola-Garcia’s hometown who are involved in criminal activities
tend to threaten returnees from the United States. Finally, the application lists all of Amezola-
Garcia’s entries into the United States, but does not mention the 1996 incident where he was
turned away at the border.
In the merits hearing before the IJ, while Amezola-Garcia first described his brother-in-
law’s murder as an “assassination,” he later admitted that he did not know who killed his
brother-in-law or why and that an investigation into the murder is still ongoing. Amezola-Garcia
also stated that he did not know what type of work his brother-in-law did for the Mexican
government, other than that “it was something that had to do with defense” and was not
continuous work. When asked whether he feared if something might happen to him because of
what happened to his brother-in-law, Amezola-Garcia responded “[w]ell, it could happen or not.
One never knows.” Amezola-Garcia also confirmed that he was never harmed in Mexico and
that no one in his family (other than his deceased brother-in-law) has been threatened or harmed.
However, he stated that he feared that he would be attacked along the way if he attempted to
return to Mexico. When the IJ then asked “[s]o basically you’re in the same shoes as anybody
else from Mexico who has to return home,” Amezola-Garcia responded “[y]es.” Lastly,
Amezola-Garcia testified that he did not include his 1996 attempted entry in his application
because he forgot about the incident when filling out the application.
No. 15-3328 Amezola-Garcia v. Lynch Page 4
The IJ denied Amezola-Garcia’s request for voluntary departure and his application for
withholding of removal and CAT relief. First, the IJ found that Amezola-Garcia’s failure to
demonstrate that he has been a person of good moral character for the past five years precluded
him from being permitted to depart voluntarily. The IJ reasoned that Amezola-Garcia lacked
good moral character because he “prevaricated intentionally” with regard to his application for
withholding of removal: His testimony was often inconsistent with his application regarding both
his brother-in-law’s death and the order in which his siblings were born, leaving the IJ to
conclude that “he has made up his story out of absolutely nothing.” The IJ then appeared to state
that his lack of good moral character also precluded him from receiving withholding of removal.
Next, the IJ rejected Amezola-Garcia’s application for withholding of removal because
Amezola-Garcia’s testimony was not credible. The IJ found Amezola-Garcia’s testimony
troubling due to its lack of detail, the absence of corroborating statements or testimony from his
relatives, and the inconsistencies with his application. The IJ also found that Amezola-Garcia
had not established that he would more likely than not be harmed on account of his family
membership if he returned to Mexico. The IJ pointed to the fact that his remaining family
members in Mexico have not been harmed or threatened following his brother-in-law’s death and
that Amezola-Garcia has voluntarily returned to Mexico on a number of occasions. Similarly,
the IJ found that Amezola-Garcia failed to demonstrate eligibility for CAT relief because there is
no evidence that he would be harmed by, or with the acquiescence of, the Mexican government.
Amezola-Garcia appealed to the BIA. Amezola-Garcia’s brief to the BIA incorporated a
motion for the appeal to be considered by a three-member panel and a request that proceedings
be remanded for the IJ to clarify his denial of withholding of removal based on bad moral
character. A single-member panel of the BIA, rather than a three-member panel, then affirmed
the IJ’s decision and dismissed the appeal. The BIA did not rely on the IJ’s adverse credibility
determination to affirm the denial of withholding of removal; rather, the BIA found that
Amezola-Garcia’s withholding-of-removal claim failed because he demonstrated neither past
persecution nor a reasonable fear of future persecution. The BIA explained that the
reasonableness of his claim of future persecution was undermined by the fact that his remaining
family members in Mexico have not been harmed and by the fact that he voluntarily returned to
No. 15-3328 Amezola-Garcia v. Lynch Page 5
Mexico multiple times. The BIA likewise affirmed the IJ’s determination that Amezola-Garcia
does not qualify for CAT relief because he did not establish that it is more likely than not that he
will be tortured if he returns to Mexico. Finally, the BIA agreed with the IJ that Amezola-Garcia
does not qualify for voluntary departure because he “provided false testimony.” As proof of his
false testimony, the BIA stated that “[Amezola-Garcia] testified that he had intentionally lied on
his application about being in prior exclusion proceedings in 1996.”
On appeal to this court, Amezola-Garcia argues that the BIA erred by failing to rule on
his motion for a three-member panel and by not referring his case to a three-member panel, that
the IJ erred by concluding that a lack of good moral character barred a grant of withholding of
removal, that the BIA erred by not remanding the case for the IJ to clarify its withholding-of-
removal ruling, that the BIA wrongly concluded that he did not have a reasonable fear of future
harm if he returns to Mexico, and that the BIA engaged in impermissible fact-finding when it
based its denial of voluntary departure on a mischaracterization of his testimony.1
First, assuming without deciding that the BIA’s decision to assign a case to a single-
member panel is judicially reviewable, the BIA did not err when it decided to streamline
Amezola-Garcia’s case to a single-member panel, because a single-member panel had the
authority to decide Amezola-Garcia’s case.2 Amezola-Garcia argues that a three-member panel
was required under 8 C.F.R. § 1003.1(e)(6)(iii), (v), and (vi), which provide:
1
Amezola-Garcia’s opening brief does not challenge the BIA’s denial of CAT relief. Because arguments
not raised in a party’s opening brief are deemed waived, see, e.g., Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th
Cir. 2013), Amezola-Garcia has waived any challenges to the BIA’s denial of CAT relief.
2
There is some question as to whether the BIA’s decision to have a single-member panel review a case is
judicially reviewable under 5 U.S.C. § 701(a)(2), which deals with matters committed to agency discretion by law.
“Whether an applicant may challenge the BIA’s decision to streamline his case pursuant to the Administrative
Procedure Act remains an open question before this court.” Nabhani v. Holder, 382 F. App’x 487, 491 (6th Cir.
2010). As we have done in many other instances, we assume without deciding, for purposes of argument, that the
issue is reviewable, but reject the challenge to the single-member BIA assignment. See Reyna v. Lynch, Nos. 14–
3662, 15–3093, 2015 WL 7729232, at *2 n.3 (6th Cir. Nov. 30, 2015); Lopez-Salgado v. Lynch, No. 14–3646, 2015
WL 4461091, at *6 (6th Cir. July 22, 2015); Nabhani, 382 F. App’x at 491; Balliu v. Gonzales, 192 F. App’x 427,
435 (6th Cir. 2006); Denko v. I.N.S., 351 F.3d 717, 732 (6th Cir. 2003). Such an assumption does not run afoul of
Steel Co. v. Citizens for a Better Environment’s prohibition against “hypothetical jurisdiction,” 523 U.S. 83, 93–101
(1998). Although the parties couch their discussion in terms of whether we have “jurisdiction” to review the BIA’s
streamlining decision, arguments that a court may not review agency action that is “committed to agency discretion
by law” under 5 U.S.C. § 701(a)(2) do not go to the jurisdiction of the court. See Gor v. Holder, 607 F.3d 180, 196
(6th Cir. 2010) (Cole, J., concurring).
No. 15-3328 Amezola-Garcia v. Lynch Page 6
Cases may only be assigned for review by a three-member panel if the case
presents one of these circumstances:
...
(iii) The need to review a decision by an immigration judge or the Service that is
not in conformity with the law or with applicable precedents;
...
(v) The need to review a clearly erroneous factual determination by an
immigration judge; or
(vi) The need to reverse the decision of an immigration judge or the Service, other
than a reversal under § 1003.1(e)(5).
A single-member panel may affirm, modify, or remand any decision made by an IJ, but may
reverse an IJ’s decision only if “such reversal is plainly consistent with and required by
intervening Board or judicial precedent, by an intervening Act of Congress, or by an intervening
final regulation.” 8 C.F.R. § 1003.1(e)(5). It appears to follow that “a single board member may
not reverse a decision by an IJ based on a clearly erroneous factual determination.” Cataj v.
Gonzales, 140 F. App’x 600, 604 (6th Cir. 2005).
Amezola-Garcia’s argument that a three-member panel was required to decide his case
because a single-member panel lacks the authority to reverse an IJ’s clearly erroneous factual
determinations is meritless, because reversal did not occur in his case. A single-member panel
undeniably has the authority to affirm an IJ’s factual determinations, which is what occurred
here. Amezola-Garcia attempts to limit the single-member panel’s authority to affirm by citing
the limits on its authority to reverse; however, whether the BIA’s regulations limit a single-
member panel’s ability to reverse has no bearing on whether the regulations permit it to affirm.
Amezola-Garcia’s argument could perhaps be read as a claim that a single-member panel
is somehow compelled to affirm once it receives a case, regardless of the merits of the case.
Under this theory, the BIA’s initial decision to streamline a case to a single-member panel would
thereafter completely foreclose the possibility of a reversal based on clearly erroneous factual
determinations. That is not the law. A single-member panel “shall determine the appeal on the
merits as provided in paragraph (e)(4) or (e)(5) of this section, unless the Board member
determines that the case is appropriate for review and decision by a three-member panel under
No. 15-3328 Amezola-Garcia v. Lynch Page 7
the standards of paragraph (e)(6) of this section.” 8 C.F.R. § 1003.1(e)(3). If the single-member
panel had uncovered troublesome factual errors as it reviewed the merits of Amezola-Garcia’s
case, the single-member panel would not have been required nonetheless to affirm. Instead, as
§ 1003.1(e)(3) provides, the single-member panel could have sent Amezola-Garcia’s case to a
three-member panel for further review and possible reversal. The fact that the single-member
panel did not send Amezola-Garcia’s case to a three-member panel does not indicate that his
due-process rights were violated, as Amezola-Garcia appears to claim, but instead merely
reflects the fact that the BIA concluded that his claimed factual errors did not warrant reversal.
Amezola-Garcia’s argument that his case had to be sent to a three-member panel based
on § 1003.1(e)(6)(iii) also lacks merit, because both single-member and three-member panels are
capable of reversing an IJ’s error of law. 8 C.F.R. § 1003.1(e)(6)(iii) provides that a three-
member panel may review a case when there is a “need to review a decision by an immigration
judge or the Service that is not in conformity with the law or with applicable precedents.”
Likewise, a single-member panel may reverse an IJ’s decision if “such reversal is plainly
consistent with and required by intervening Board or judicial precedent, by an intervening Act of
Congress, or by an intervening final regulation.” 8 C.F.R. § 1003.1(e)(5). The two provisions
appear to give single-member and three-member panels the same authority: the ability to reverse
IJs’ decisions that are contrary to law. Amezola-Garcia contends that the two standards are
different and that the single-member panel did not have the authority to grant him the relief he
requested. However, he does not explain how the two grants of authority differ, in what
circumstances a single-member panel would not be able to reverse an IJ’s decision based on an
error of law, or why the legal errors he claims that the IJ made could be reversed only by a three-
member panel. Accordingly, he has not shown that the BIA erred by referring his case to a
single-member panel or that the BIA’s actions caused him any prejudice.
Moreover, a three-member panel is not required for all cases in which a petitioner claims
that the IJ made a clearly erroneous factual determination or issued a decision not in conformity
with the law. The assignment of a case that presents one or more of the six circumstances listed
in 8 C.F.R. § 1003.1(e)(6) to a three-member panel is not mandatory. Koussan v. Holder,
556 F.3d 403, 415 (6th Cir. 2009), abrogated on other grounds by Judulang v. Holder, 132 S. Ct.
No. 15-3328 Amezola-Garcia v. Lynch Page 8
476 (2011). Even when one or more of the six circumstances are present, the BIA may assign
that case to a single-member panel. Id. Thus, the mere fact that Amezola-Garcia asserted that
the IJ made clearly erroneous factual determinations and issued a decision not in conformity with
the law did not compel the BIA to send his case to a three-member panel. Otherwise, as the
Government argues, the purpose of 8 C.F.R. § 1003.1(e)(6)—to streamline the BIA’s decision-
making process—could be easily thwarted by a petitioner’s cursory arguments asserting one of
the § 1003.1(e)(6) grounds. Rather, it was permissible for the BIA to determine that Amezola-
Garcia’s case did not warrant review by a three-member panel on any of his asserted
§ 1003.1(e)(6) grounds and therefore that his case should be sent to a single-member panel for
affirmance in accordance with 8 C.F.R. § 1003.1(e)(5).
Additionally, Amezola-Garcia’s argument that the BIA erred by not explaining its
decision to send his case to a single-member panel fails. The very act of a single-member panel
affirming the IJ’s decision serves as an explanation that the BIA did not believe that the IJ made
any factual or legal errors that required reversal by a three-member panel. Further, any error
relating to the BIA’s lack of explanation was harmless because the BIA acted properly and
within its discretion in referring Amezola-Garcia’s case to a single-member panel.
Second, the BIA’s determination that Amezola-Garcia did not show a clear probability of
future persecution, and therefore is not entitled to withholding of removal, is supported by
substantial evidence. When the petitioner’s family members are also members of his or her
protected group, the reasonableness of the petitioner’s claim of future persecution is undermined
when the petitioner’s family members remain in the country of removal unharmed. See, e.g.,
Shvedko v. Holder, 411 F. App’x 817, 821 (6th Cir. 2011) (citing In re A–E–M, 21 I. & N. Dec.
1157, 1160 (BIA 1998)). Here, Amezola-Garcia’s claim is undermined because he testified that
none of his relatives in Mexico has been harmed or threatened following his brother-in-law’s
death. Additionally, because Amezola-Garcia testified that he was not sure why his brother-in-
law was killed, a reasonable factfinder would not be compelled to conclude that Amezola-Garcia
will face harm due to his familial relationship with his deceased brother-in-law. Amezola-
Garcia’s testimony did not establish that his brother-in-law’s killers have any interest in harming
him.
No. 15-3328 Amezola-Garcia v. Lynch Page 9
The BIA’s withholding-of-removal decision is also supported by Amezola-Garcia’s
testimony that his fear of returning to Mexico is based on general lawlessness and crime in that
country. “[G]eneral civil disorder and lawlessness to which anyone living in [the country of
removal] would be exposed” does not establish a well-founded fear of future persecution on
account of a protected ground. Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004). While the
presence of general lawlessness does not preclude a finding of a fear of future persecution on
account of a protected ground, Amezola-Garcia’s testimony that he fears that he will be attacked
on his return to Mexico for the same reasons as “anybody else from Mexico who has to return
home,” further establishes that a reasonable factfinder would not be compelled to conclude that
the reason he might face harm in Mexico is because of his familial relationship with his deceased
brother-in-law.
However, in light of the fact that all of Amezola-Garcia’s returns to Mexico occurred
before his brother-in-law’s death, we do not rely upon the BIA and Government’s argument that
Amezola-Garcia’s voluntary visits to Mexico undermine his claim of future persecution.
Amezola-Garcia’s arguments that the BIA’s decision is not supported by substantial
evidence are unavailing. The fact that the IJ erred by stating that bad moral character precludes a
grant of withholding of removal does not warrant reversal, because the BIA did not rely upon
that portion of the IJ’s opinion in making its decision. We review the IJ’s decision only to the
extent that the BIA adopts the IJ’s rationale. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.
2009). Thus, because the BIA did not base its withholding-of-removal decision on the IJ’s
conclusion that Amezola-Garcia lacked good moral character, any error that the IJ made
regarding Amezola-Garcia’s bad moral character in relation to his application for withholding of
removal is irrelevant to our review. Similarly, because the BIA found other grounds on which to
affirm the IJ’s withholding-of-removal ruling, the BIA had no reason to address Amezola-
Garcia’s motion to remand, and its failure to do so was not in error.
Also without merit is Amezola-Garcia’s claim that the BIA’s reliance on his relatives’
remaining unharmed is “internally inconsistent” with his brother-in-law’s murder. Contrary to
Amezola-Garcia’s characterizations, the BIA did not state that no harm has ever come to
Amezola-Garcia’s “family”; rather, it stated that no harm has come to Amezola-Garcia’s
No. 15-3328 Amezola-Garcia v. Lynch Page 10
“parents, his siblings who remain in Mexico, or his nieces and nephews.” The BIA’s statement
regarding Amezola-Garcia’s parents, siblings, nieces, and nephews is not inconsistent with the
fact that Amezola-Garcia’s brother-in-law was killed. Likewise, Amezola-Garcia’s argument in
his reply brief that “his brother-in-law was murdered and that is a family member that was
harmed” misses the mark. As the BIA explained in its decision, Amezola-Garcia’s claim of
future persecution is undermined because none of his other family members in Mexico—who are
in the same situation Amezola-Garcia will be in once he returns to Mexico—has been harmed
following the death of his brother-in-law.
Third, in light of the Government’s voluntary request for a remand, the BIA’s voluntary-
departure determination is remanded to the BIA for reconsideration. It appears that the BIA was
not correct when it stated that Amezola-Garcia testified that he lied on his application about the
1996 attempted entry; instead, the record shows that he testified that he forgot about the incident.
In the past, we have fairly freely issued remands when an agency requests a voluntary remand,
see, e.g., Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416–17
(6th Cir. 2004), and such a remand is especially appropriate when, as is the case here, the remand
is not opposed by the non-agency party.
We do not go further and order, as Amezola-Garcia urges in his reply brief, that on
remand the BIA order a further remand to the IJ. Such an order goes beyond what the Attorney
General requests, and would pretermit the opportunity of the BIA to rule on whether such a
course is warranted. If the BIA would determine that a further remand is warranted, we need not
direct that course. If the BIA determines that a further remand is not warranted, it should have
the opportunity to make and support such a ruling.
Finally, we do not address Amezola-Garcia’s argument—made for the first time in his
reply brief—that an order should be issued permitting him to reenter the United States,
ostensibly so that he could provide demeanor evidence to the IJ on remand.
For the foregoing reasons, Amezola-Garcia’s petition is remanded to the BIA for further
consideration of its voluntary-departure determination and is denied in all other respects.