Neri–Garcia v. Holder

• Decision Date: 03 October 2012
• Docket Number: No. 11–9566.,11–9566.
• Parties: Efren NERI–GARCIA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

696 F.3d 1003

Efren NERI–GARCIA, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–9566.

United States Court of Appeals, Tenth Circuit.

Oct. 3, 2012.

Submitted on the briefs: ^*

Dario Aguirre, Aguirre Law Group P.C., Denver, CO, for Petitioner.

Linda S. Wernery, Assistant Director, Civil Division, Walter Bocchini, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before HARTZ, ANDERSON, and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Petitioner Efren Neri–Garcia seeks review of the Board of Immigration Appeals' (BIA) denial of his applications for restriction on removal under the Immigration and Nationality Act (INA) ¹ and for relief under the United Nations Convention Against Torture (the CAT). Years ago he was mistreated by government actors because of his homosexuality. At issue is whether conditions in Mexico, with respect to the treatment of gay men, have changed sufficiently to overcome the presumption that he would be at risk were he to return. We deny his petition for review.²

I.

Neri–Garcia is a native and citizen of Mexico. He was removed on February 12, 1997, but reentered the United States the next day. Eventually he again came under the gaze of immigration authorities. After a credible-fear interview in January 2011, an asylum officer determined he had a reasonable fear of persecution or torture in Mexico, and his case was referred to an immigration judge (IJ). The IJ considered his applications for restriction on removal and for relief under the CAT pursuant to 8 C.F.R. § 1208.16.

At a hearing before the IJ, Neri–Garcia claimed he had been mistreated and persecuted in Mexico because he is homosexual. He testified to discrimination, threats, and physical attacks by family members, fellow students, and police officers. Nearly three decades ago police officers arrested him for a theft he did not commit and then tortured him to extract a confession. Following his conviction for that crime in 1984, he was incarcerated in a penitentiary in Guadalajara, where he was housed with psychiatric patients because he is gay. He testified to having been beaten and doused with cold water, not allowed to go outside, and kept in solitary confinement. He was released from the penitentiary in 1987, but was subsequently detained by the police on several more occasions. After being detained in 1994, he came to the United States. Although he has spent no significant time in Mexico since 1994, he says mistreatment of gays continues there. His statement was based on what he has seen on the news and on the internet. He also claimed it would be very difficult to change the macho culture in Mexico; he didn't say why.

Andres Villa Lopez also testified at the hearing. Lopez was employed as a custodian at the penitentiary in Guadalajara during part of the time Neri–Garcia was incarcerated. He corroborated Neri–Garcia's testimony regarding his treatment at the prison. Lopez, who is also gay, testified about his own mistreatment by his supervisors and threats against him by co-workers at the prison. He also stated he had been attacked several times and that he and other gay men in Guadalajara were not open about their sexual orientation, except in gay bars. Lopez came to the United States in 1985 and eventually became a lawful permanent resident. He has returned to Guadalajara only once since 1985, yet claimed to be familiar with the gay community there. He did not say how. He conceded that homosexuals now live openly in Mexico City, but said many of his friends had been attacked and killed since he left Guadalajara. He provided no details. According to his testimony, attacks on homosexuals continue in Mexico City, but again, he did not explain the source of his claimed knowledge.

In a written decision, the IJ found Neri–Garcia to be a member of the particular social group of homosexual males from Mexico. The IJ found Neri–Garcia and his witnesses to be credible and the testimony to have established past persecution on account of his homosexuality. But the IJ also decided the Department of Homeland Security (DHS) met its burden to rebut the regulatory presumption of future persecution based on evidence of past persecution. The DHS established, by a preponderance of the evidence, a fundamental change in circumstances in Mexico such that Neri–Garcia's life or freedom would not now be threatened as a result of his sexual orientation.

The IJ based his conclusion on the 2009 and 2010 United States Department of State Human Rights Reports (Country Reports) for Mexico. Both Country Reports contain a section titled “Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity.” According to these reports, homosexual conduct had experienced growing social acceptance in Mexico; gay pride marches were occurring in cities across the country, including one in Mexico City in which 400,000 people participated; Mexico City had legalized both gay marriage and adoption by gay couples; and the Mexican Supreme Court required all Mexican states to recognize gay marriages performed in those states where it was permitted. The IJ noted the 2009 and 2010 Country Reports were identical, except for a single high-profile case of violence against a gay activist described in the 2009 report.³ Relying on the Country Reports, he also acknowledged the existence of continuing discrimination against homosexuals in Mexico, “principally in entertainment media programs and everyday attitudes.”

The IJ discounted Neri–Garcia's and Lopez's testimony about nothing having changed in Mexico since they lived there, because neither of them had recently spent time there, and they otherwise failed to explain the bases of their statements and opinions. While acknowledging some continuing incidents of attacks on gay men by private individuals, the IJ found no evidence the Mexican government systematically harms gay men or fails to protect them from violence. At bottom, the IJ concluded the Country Reports indicated the Mexican government had taken and was continuing to take significant steps to prevent violence and discrimination against gay men.

As to Neri–Garcia's claim for relief under the CAT, the IJ was concerned with the age of the seminal events—twenty-seven years. He noted how Mexican law now prohibits the use of torture, and the number of torture complaints had significantly decreased in the past year from thirty-three to ten. He found no evidence of the Mexican government committing or acquiescing in violations of human rights to an extent warranting a grant of protection under the CAT. In sum, he concluded Neri–Garcia was ineligible for restriction on removal or protection under the CAT.

Neri–Garcia took an appeal from the IJ's decision to the BIA. He also filed a motion to remand his case to the IJ based on new evidence of country conditions, specifically news articles about the recent killings of two gay activists in Mexico, one of whom was found beaten to death on the street and another who had been stabbed in his home. Although the articles quoted gay activists claiming the murders were hate crimes, none of the articles identified responsible groups or individuals.

The BIA adopted the IJ's reasoning regarding DHS's rebuttal of the presumption of future persecution and his conclusion that Neri–Garcia failed to show he would likely be tortured if he returned to Mexico. It also denied Neri–Garcia's motion to remand because the additional evidence he submitted would not have impacted the IJ's bases for denying his applications for relief. It dismissed the appeal. Neri–Garcia filed this timely petition for review.

II.

“We look to the record for substantial evidence supporting the agency's decision: Our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006) (quotations and alteration omitted). Specifically, “[w]hether the materials of record rebutted the presumptive inference from past to future persecution is a question of fact that we review for substantial evidence. That means we cannot reverse the determination of the BIA unless the record compels us to conclude that it was wrong.” Ba v. Mukasey, 539 F.3d 1265, 1269 (10th Cir.2008) (citation omitted); see also8 U.S.C. § 1252(b)(4)(B) (providing “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”).

Because a single member of the BIA affirmed the IJ's decision in a brief order, see8 C.F.R. § 1003.1(e)(5), we review the BIA's opinion rather than the decision of the IJ, see Uanreroro, 443 F.3d at 1204. “However, when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds.” Id. Finally, we review the BIA's denial of a motion to remand for abuse of discretion. Witjaksono v. Holder, 573 F.3d 968, 978–79 (10th Cir.2009).

III.

A. Restriction on Removal

The INA provides: “[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's ... membership in a particular social group....” 8 U.S.C. § 1231(b)(3)(A). Under this statute, the alien must establish “a clear probability of persecution” to be granted restriction on removal. Niang v. Gonzales, 422 F.3d 1187, 1195 (10th Cir.2005) (quotation omitted). And the persecution must be “committed by the government or forces the government is either unable or unwilling to control.” Id. at 1194–95 (quotation omitted). An alien can establish a presumptive entitlement to restriction on removal on the basis of past persecution. Id. at 1195. But a requested restriction on removal can be denied...