Miranda-Bojorquez v. Barr, 18-1202

• Decision Date: 27 August 2019
• Docket Number: No. 18-1202,18-1202
• Citation: 937 F.3d 1
• Parties: Dennis Mauricio MIRANDA-BOJORQUEZ, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

937 F.3d 1

Dennis Mauricio MIRANDA-BOJORQUEZ, Petitioner,

v.William P. BARR,^* Attorney General of the United States, Respondent.

No. 18-1202

United States Court of Appeals, First Circuit.

August 27, 2019

Rachel L. Rado and The Law Office of Rachel L. Rado, LLC, Boston, MA, 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.

Before Torruella, Lipez, and Kayatta, Circuit Judges.

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.

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 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 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 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

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 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 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...