Lopez-Perez v. Garland
| Decision Date | 22 February 2022 |
| Docket Number | 21-1057 |
| Parties | LEONARDO FABIO LÓPEZ-PÉREZ, Petitioner, v. MERRICK B. GARLAND, [*] UNITED STATES ATTORNEY GENERAL, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEAL
Jeffrey B. Rubin, Todd C. Pomerleau, Kimberly A. Williams and Rubin Pomerleau PC on brief for petitioner.
Brian Boynton, Acting Assistant Attorney General, Civil Division with whom Jennifer R. Khouri, Acting Senior Litigation Counsel, and Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.
Before Kayatta, Lipez, and Gelpí, Circuit Judges.
Leonardo Fabio López-Pérez ("López-Pérez"), a native and citizen of Guatemala, petitions for review of a ruling of the Board of Immigration Appeals ("BIA") affirming the denial of his application for asylum, withholding of removal, protection under the Convention Against Torture ("CAT"), and voluntary departure. For the reasons that follow, we affirm.
In early 2012, López-Pérez entered the United States through the United States-Mexico border, without inspection, admission, or parole. At the time, he was sixteen years old. López-Pérez was initially included in his parents' asylum application filed on November 4, 2013. However, said application was withdrawn on November 4, 2017. López-Pérez claims he was unaware of this fact and learned of this withdrawal during his own removal proceedings, well after he had turned twenty-one.
In December 2018, the Department of Homeland Security served López-Pérez with a Notice to Appear, charging him with removability pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA") as an "alien present in the United States without being admitted or paroled." 8 U.S.C. § 1182(a)(6)(A)(i).
An Immigration Judge ("IJ") conducted a hearing on September 16, 2019, during which López-Pérez conceded removability and applied for asylum, withholding of removal, protection under the CAT, and post-conclusion voluntary departure.
In a subsequent hearing on November 7, 2019, López-Pérez testified before the IJ in support of his applications for relief. During his testimony, he described his childhood living with his grandmother and sisters in San Marcos, Guatemala. He stated that in addition to Spanish, he spoke the Mam dialect.[1] López-Pérez also asserted that during his childhood he was persecuted for being Mam. While attending school, López-Pérez allegedly was mistreated, subjected to mockery and bullying, and faced verbal attacks by his classmates for his ethnicity and speaking the Mam language. He further stated that he felt threatened in Guatemala given that his cousin, Adan López Gómez, had been kidnapped in 2008. Subsequently, his cousin received letters warning that the kidnappers would go after his family. When asked why the kidnappers targeted his cousin, López-Pérez replied that they perceived him as a wealthy merchant. This testimony was corroborated by two sworn statements from López-Pérez's cousins, Adan López Gómez himself and Cecilio López Gómez. When asked why he felt apprehensive about returning to Guatemala, López-Pérez responded that he feared that what had happened to his cousin would also occur to him. Additionally, he claimed that he would be discriminated against for his Mam identity.
Following the hearing, the IJ found the petitioner's testimony about his personal and family experiences in Guatemala credible. The IJ, however, concluded that he was ineligible for asylum because he had not filed his application within a reasonable time of turning eighteen, turning twenty-one, or following his parents' withdrawal from the asylum-seeking process. In the alternative, the IJ addressed the merits of the asylum claim and concluded that before he left Guatemala, López-Pérez had not suffered harm that rose to the level of past persecution. Additionally, the IJ found that López-Pérez failed to meet the requisite standard for such relief because he did not show that he would suffer any harm on account of one of the five protected grounds enumerated in the asylum statute. Because his asylum claim failed on the merits, the IJ found that López-Pérez was unable to satisfy the even more stringent burden of establishing a withholding of removal claim. The IJ next denied López-Pérez's CAT petition, concluding that he had not established a likelihood that, if sent back to Guatemala, he would be subject to torture by or with the consent or acquiescence of a public official. Finally, after considering López-Pérez's positive equities and past unlawful activity, the IJ denied the request for voluntary departure.
López-Pérez appealed the IJ's ruling to the BIA, which affirmed the IJ's conclusions. He subsequently filed a timely petition for review with this court.
Where, as here, "the BIA adopts and affirms an IJ's decision, we review the IJ's decision to 'the extent of the adoption, and the BIA's decision as to [any] additional ground.'" Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (alteration in original) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir. 2006)). The agency's findings of fact are reviewed under the substantial evidence standard. "This standard applies both to asylum and withholding claims as well as claims brought under CAT." Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). Under this analysis, the agency's determinations will be upheld unless the record evidence "compel[s] a reasonable factfinder to make a contrary determination." Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004) (quoting Guzmán v. INS, 327 F.3d 11, 15 (1st Cir. 2003)); see also 8 U.S.C. § 1252(b)(4)(B). Questions of law, in turn, are reviewed de novo. Romilus, 385 F.3d at 5.
A noncitizen is eligible for asylum upon establishing that he is a refugee as defined by the INA. Pérez-Rabanales v. Sessions, 881 F.3d 61, 65 (1st Cir. 2018); see also 8 U.S.C. § 1101(a)(42).
"A refugee is a person who cannot or will not return to [his] home country '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.'" Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)).
An asylum application must be filed "within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). Failure to comply with said deadline may be excused if the "applicant demonstrates 'changed circumstances which materially affect [his] eligibility for asylum or extraordinary circumstances relating to the delay in filing'" and if the non-citizen "file[s] the application 'within a reasonable period' given those circumstances." Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009) (). A noncitizen can establish a changed circumstance that preserves his eligibility for asylum by proving that he was previously included as a dependent in another noncitizen's asylum application and the parent-child relationship to the principal applicant was lost by the attainment of age twenty-one. 8 C.F.R. § 1208.4(a)(4)(i)(C). The noncitizen bears the burden of establishing that he qualifies for such an exception. Id. § 1208.4(a)(2)(i).
It is undisputed that López-Pérez resided in the United States for more than seven years prior to filing his own asylum application. Indeed, by the time he filed his application, he was twenty-three. Consequently, both the IJ and the BIA determined that López-Pérez's application was untimely because it fell well outside of the one-year period after he turned twenty-one. For this reason, the IJ and the BIA concluded that López-Pérez had not demonstrated changed or extraordinary circumstances that justified the long delay in filing his asylum application.
Congress has limited "the scope of judicial review with respect to timeliness determinations in asylum cases." Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007). As such, this court is barred from reviewing the agency's determination unless the noncitizen identifies a legal or constitutional question. Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009); see also 8 U.S.C. § 1158(a)(3). Therefore, before we can reach the substance of López-Pérez's timeliness argument, he must identify a "legal or constitutional defect" in the agency's decision which would allow us to review the agency's determination regarding the application's timeliness. Rashad, 554 F.3d at 5.
López-Pérez contends that the IJ failed to consider that he did not know about his parents' withdrawal from the asylum-seeking process until his own removal proceedings had begun. Although López-Pérez claims that the agency committed factual and legal error, his challenge nonetheless "takes issue with the evidentiary basis for the BIA's finding that 'circumstances' did not excuse his untimely application for asylum." Rodríguez-Palacios v. Barr, 927 F.3d 13, 17 (1st Cir. 2019). This is the sort of "factual claim masqueraded as a legal challenge" which we lack jurisdiction to review. Rashad, 555 F.3d at 5.
Even if certain applicants are not eligible for asylum, they may still be entitled to withholding of removal. Sosa-Pérez v. Sessions, 884 F.3d 74, 77 (1st Cir. 2018). To qualify for withholding of removal López-Pérez must show that there is a clear probability that his life or freedom would be threatened in Guatemala because of his "race, religion, nationality, membership in a particular social group, or...
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