Reyes-Ramos v. Garland, 18-1830

• Docket Number: 18-1830
• Decision Date: 13 January 2023
• Parties: JOSE ANTONIO REYES-RAMOS, Petitioner, v. MERRICK B. GARLAND, Attorney General, [*] Respondent.
• Court: U.S. Court of Appeals — First Circuit

JOSE ANTONIO REYES-RAMOS, Petitioner, v. MERRICK B. GARLAND, Attorney General, ^[*] Respondent.

No. 18-1830

United States Court of Appeals, First Circuit

January 13, 2023

Petition for Review of an Order of an Immigration Judge

Stephen A. Lagana for petitioner.

Christina P. Greer, with whom Joseph H. Hunt, Assistant Attorney General, U.S. Department of Justice, Civil Division Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Barron, Chief Judge, Howard and Kayatta, Circuit Judges.

HOWARD, CIRCUIT JUDGE

In his petition for review of an immigration judge's (IJ) denial of his application for withholding of removal, Jose Antonio Reyes-Ramos argues that the IJ erred by concurring with an asylum officer's determination that Reyes did not have a reasonable fear of persecution or torture. Finding Reyes's arguments unpersuasive, we deny his petition.

I.

A native and citizen of El Salvador, Reyes entered the United States without inspection on three occasions. He first entered in 2005 and the next year was ordered removed in absentia, after he failed to appear for a hearing. After his eventual removal by the Department of Homeland Security (DHS) in June 2011, pursuant to the 2006 removal order, Reyes reentered the United States without inspection in September of the same year. He was apprehended the following month and DHS reinstated the 2006 removal order against him. After his October 2011 apprehension, Reyes initially expressed fear of persecution or torture if removed to El Salvador. However, he withdrew his request for a reasonable fear determination after being detained for two months, disclaiming his fear of returning to El Salvador and requesting removal. DHS removed Reyes in January 2012.

Reyes subsequently reentered the United States for a third time without inspection on an unknown date. DHS apprehended him in April 2018 after he was arrested in Massachusetts for committing a criminal offense. The agency reinstated his 2006 removal order for a second time, and Reyes again expressed fear of persecution or torture. During his subsequent reasonable fear interview with the asylum officer, Reyes stated that he feared returning to El Salvador because of the violence that he suffered at the hands of gangs that he refused to join. According to Reyes, MS-13 began recruiting him when he was 18 or 19 years old and serially terrorized him after he refused to join. They reportedly beat him to the point of unconsciousness the first time he refused, leaving permanent scars on his head. Reyes also said that, on another occasion, gang members shot him in the leg as he fled from them and threatened to kill him the next time they saw him. While Reyes was away from his family recovering from his wound, gang members allegedly told his mother that they would continually search for Reyes so that they could kill him. Reyes did not report these incidents to local police, and noted his general belief that the police could not protect him from gang-inflicted violence. He recounted that police did not respond when his cousin was kidnapped and killed and that they responded tardily when his uncle was shot. He attributed his uncle's death to this delay.

While the asylum officer found Reyes's testimony credible, the officer nevertheless concluded that Reyes had shown neither a connection between his claims and a protected ground, nor that government officials would acquiesce in torturing him.

As will be further discussed below, Reyes had the burden of establishing a "reasonable possibility" of either consequence to have his removal withheld under 8 C.F.R. § 208.31(c).

Reyes requested review of the asylum officer's rejection of his reasonable fear claim by an IJ. See 8 C.F.R. § 208.31(g). Reyes argued to the IJ that he was a member of a social group of "persons [against] who[m] the MS Gang retaliates for failure to join." In addition to considering Reyes's testimony, the IJ also reviewed death certificates and medical records that Reyes submitted to show the murders of family and friends killed by MS-13 gang members.

In upholding the asylum officer's decision, the IJ concluded in a written order that, while he believed that Reyes's "threats and beatings [were] unfortunate" and he was "extremely sympathetic to the plight of the respondent," there was insufficient evidence to find that Reyes had been attacked because of a protected ground, as DHS regulations require. The IJ found that the harm Reyes suffered "appear[ed] to be motivated by gangs or organized crime committing heinous crimes to increase their ranks and power[,] instead of targeting the respondent on any protected ground."

The IJ also found that Reyes's purported social group was "insufficiently particular and lack[ed] social distinction." And the IJ agreed with the asylum officer that there was "insufficient evidence in the record to establish a reasonable possibility that the respondent would be singled out for torture with the consent, instigation, acquiescence, or willful blindness of a public official or other person acting in an official capacity." He also noted that Reyes never contacted the police and that there was insufficient evidence to show why the police did not follow up on his cousin's murder. Reyes's petition to this court followed.

II.

There is a threshold question of whether we have jurisdiction over Reyes's petition.^[1] We have often repeated that our jurisdiction to review orders of removal pursuant to 8 U.S.C. § 1252(a)(1) and (5) applies only to final orders of removal. See, e.g., Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015).

8 C.F.R. § 208.31 details DHS's process for adjudicating reasonable fear claims following reinstatement of removal. Under the regulation, a claimant whose removal order has been reinstated, but who "express[es] a fear of returning to the country of removal," may have her claim reviewed by an asylum officer. 8 C.F.R. § 208.31(a). If the asylum officer finds in the claimant's favor, the officer will refer the matter to an IJ for full consideration of the request to withhold removal, and the claimant may appeal an adverse decision of the IJ to the Board of Immigration Appeals (BIA). Id. at § 208.31(e). But if both the asylum officer and the IJ find against the claimant, the petitioner cannot appeal to the BIA, and the IJ will have the final administrative word. Id. at § 208.31(g) (1). This case sits in the latter posture. Moreover, Reyes does not dispute that there is a final order of removal in place and that he is nonetheless challenging only the credible fear ruling by the IJ.

We have not held definitively whether we can exercise jurisdiction under § 1252 over the credible fear determination in this scenario. Cf. Garcia Sarmiento v. Garland, 45 F.4th 560, 563 & n.1 (1st Cir. 2022). The Supreme Court has stated twice in recent years that withholding-only proceedings do not result in final orders of removal. See Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2288 (2021); Nasrallah v. Barr, 140 S.Ct. 1683, 1691 (2020). And at least one circuit has foreclosed review under similar circumstances. See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 195 (2d Cir. 2022); but see Tomas-Ramos v. Garland, 24 F.4th 973, 980 n.3 (4th Cir. 2022) (finding that an IJ's negative reasonable fear determination constitutes a "final order"). We nevertheless leave this question for another day. As we have done in other immigration cases that raised issues of our authority to review under § 1252, we bypass the jurisdictional question here because Reyes's petition "easily fail[s] on the merits." Telles v. Lynch, 639 Fed.Appx. 658, 659 (1st Cir. 2016); see also Tacuri-Tacuri v. Garland, 998 F.3d 466, 472 (1st Cir. 2021) ("While federal courts typically cannot apply 'hypothetical jurisdiction' in terms of Article III jurisdiction, we can sidestep statutory jurisdiction when, as here, it makes sense to do so because the resolution on the merits of the case is straightforward." (quoting Alvarado v. Holder, 743 F.3d 271, 276 (1st Cir. 2014))).

III.

The parties disagree over the standard of review that we should apply. Reyes argues for the substantial evidence standard, which at least the Ninth Circuit employs when reviewing an IJ's negative reasonable fear determination, see Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th Cir. 2016), while the government asks us to employ the even more deferential "facially legitimate and bona fide reason" standard, which the government similarly urged in Telles, see Telles 639 Fed.Appx. at 662; cf. Tomas-Ramos, 24 F.4th at 981 ("While the government has often taken th[e] position [that the facially legitimate and bona fide reason standard should apply] in cases challenging reasonable fear determinations, it has yet to find a circuit to agree, and our court has expressed some skepticism.").^[2] But this dispute need not detain us, because, as in Telles, Reyes's claims fail even under the more petitioner-friendly substantial evidence standard that he urges. See Telles, 639 Fed.Appx. at 662 ("[W]e need not and do not reach the question of whether this standard should apply to an IJ's concurrence with an [asylum officer's] negative reasonable fear determination because [petitioner's] claim fails even under the substantial evidence standard he says should apply.").

To that end, when applying the substantial evidence standard, we will uphold findings that are "supported by reasonable substantial, and probative evidence on the record considered as a whole." Enamorado-Rodriguez v. Barr, 941 F.3d 589, 595 (1st Cir. 2019) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). "...