Rodriguez-Palacios v. Barr

• Decision Date: 12 June 2019
• Docket Number: No. 18-1430,18-1430
• Parties: Jaime RODRIGUEZ-PALACIOS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

927 F.3d 13

Jaime RODRIGUEZ-PALACIOS, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 18-1430

United States Court of Appeals, First Circuit.

June 12, 2019

Melanie Chaput and Chaput Law Office on brief for petitioner.

Genevieve Kelly, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S. Department of Justice, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, on brief for respondent.

Before Lynch, Kayatta, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Jaime Rodriguez-Palacios ("Rodriguez"), a Mexican citizen, petitions for review of the Board of Immigration Appeals's ("BIA") order, which upheld the Immigration Judge's ("IJ") denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We dismiss in part and deny in part the petition for review.

I.

Rodriguez was born in Mexico and entered the United States without inspection in February 2007. The Department of Homeland Security ("DHS") commenced removal proceedings against Rodriguez on July 3, 2012, by filing a Notice to Appear with the Immigration Court that charged him with being removable from the United States under 8 U.S.C. § 1182(a)(6)(A)(i).¹ Thereafter, in November 2012, Rodriguez filed an application for asylum, withholding of removal, and protection under the CAT.

At a hearing before the IJ on May 3, 2017, Rodriguez testified as follows. He was born and raised in Colima, Mexico, where his parents and siblings still resided. Four years before he entered the United States, someone unsuccessfully tried to hit him with a bottle at a party. After the attempted assault, Rodriguez ran away with his friends and, afraid of retaliation, never reported the incident to the police, though his friends told him that the perpetrator belonged to a gang. Before he left for the United States, he worked at a shipyard. Neither he nor his co-workers had any problems there. He left Mexico with the assistance of a coyote "[b]ecause [he] was looking for the future, and because of the violence that's in Mexico."

Rodriguez further testified that his family had no problems in Mexico even after he left, though his brother worked for the Mexican military and kept to himself out of fear. Rodriguez also mentioned that, about a month before his hearing before the IJ, a friend of his was murdered by gang members at a location that was about fifteen to twenty minutes from his hometown, perhaps because his friend used drugs. Rodriguez testified that he feared returning to Mexico because he or his children could be targeted by kidnappers or extortionists who would assume that he had money because he was returning from the United States. Finally, Rodriguez noted that he did not apply for asylum in 2007 because circumstances were better in Mexico at that time. He stated that "[a]bout nine or 10 years [ago] is when things started to change. And they're worse and worse with the kidnappings and murders and the cartels."

After reviewing this testimony, along with news articles and country reports that Rodriquez submitted, the IJ denied Rodriguez's applications for asylum, withholding of removal, and deferral of removal under the CAT, but granted his request for voluntary departure. Rodriguez filed a Notice of Appeal to the BIA, which upheld the IJ's factual findings and dismissed the appeal. We now consider Rodriguez's timely petition for review of the BIA's ruling.

II.

Where, as here, "the BIA wrote separately while also approving the IJ's decision, our review is directed at both of those decisions." Ahmed v. Holder, 765 F.3d 96, 99 (1st Cir. 2014). We examine legal conclusions de novo and factual findings under the substantial evidence standard, "accepting the agency's factfinding unless the evidence ‘would compel a reasonable factfinder to reach a contrary conclusion.’ " Guaman-Loja v. Holder, 707 F.3d 119, 122 (1st Cir. 2013) (quoting Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009) ).

A.

A petitioner seeking asylum must "demonstrate[ ] by clear and convincing evidence" that his asylum application was filed within one year of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). A failure to meet this one-year filing deadline may be excused if "the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application." Id. § 1158(a)(2)(D).

Rodriguez did not file his asylum application within one year of entering the United States. Moreover, he acknowledges that "we have no jurisdiction to review the Attorney General's determination that an asylum application is untimely and unexcused by circumstances." Usman v. Holder, 566 F.3d 262, 267 (1st Cir. 2009) (internal alteration omitted) (quoting Lutaaya v. Mukasey, 535 F.3d 63, 69 (1st Cir. 2008) ) (citing 8 U.S.C. § 1158(a)(3) (providing that "[n]o court shall have jurisdiction to review any determination of the Attorney General" on an asylum seeker's compliance with the one-year time limit)).

Nevertheless, Rodriguez contends that we may review his challenge pursuant to 8 U.S.C. § 1252(a)(2)(D), which states that "[n]othing in ... this chapter ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review." In order for this exception to the jurisdictional bar to apply, "the putative constitutional or legal challenge must be more than a disguised challenge to factual findings."

Usman, 566 F.3d at 267 (quoting Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007) ).

Rodriguez styles his challenge to the BIA's timeliness ruling as one that targets the legal standard that the BIA applied. In fact, however, his challenge takes issue with the evidentiary basis for the BIA's finding that "circumstances" did not excuse his untimely application for asylum. Therefo...