Sanchez-Vasquez v. Garland

• Citation: 994 F.3d 40
• Decision Date: 07 April 2021
• Docket Number: No. 20-1661,20-1661
• Parties: Héctor Edgardo SANCHEZ-VASQUEZ, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

994 F.3d 40

Héctor Edgardo SANCHEZ-VASQUEZ, Petitioner,

v.Merrick B. GARLAND,^* United States Attorney General, Respondent.

No. 20-1661

United States Court of Appeals, First Circuit.

April 7, 2021

William Keefe, Bangor, ME, on brief for petitioner.

Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Jeffrey R. Leist, Senior Litigation Counsel, on brief for respondent.

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

SELYA, Circuit Judge.

The petitioner, Héctor Edgardo Sanchez-Vasquez, is a Salvadoran national. He seeks judicial review of a decision of the Board of Immigration Appeals (BIA), which upheld an adverse decision by an immigration judge (IJ) denying, inter alia, his application for withholding of removal. Relatedly, he seeks review of the BIA's rulings with respect to an evidentiary proffer made for the first time before that body. Concluding, as we do, that the BIA's rejection of the petition was supported by substantial evidence and that its rulings with respect to the evidentiary proffer (including its decision not to remand for further proceedings) were within the compass of its discretion, we deny the petition.

I

The petitioner entered the United States without inspection on September 3, 2008. More than a decade later, the Department of Homeland Security commenced removal proceedings against him, charging that he was subject to removal as an alien present in the United States without having been lawfully admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). The petitioner, a non-English speaker, was detained pending a bond hearing. He appeared pro se, and the IJ continued the proceedings. When the petitioner's case came up again, the IJ found him removable, but explained the various kinds of relief that might nonetheless be available.

The third time around, the petitioner appeared with pro bono counsel, and the IJ granted another continuance at the lawyer's request. When the petitioner next appeared, standby counsel asked for time to help the petitioner prepare his application for relief from removal. The court granted a further continuance.¹ The fifth hearing was marked by the IJ's review of the petitioner's application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). In support, the petitioner testified that, while in El Salvador, gang members (belonging to the El Salvador-based MS-13 gang) twice told him that if he refused to join their ranks, they would kill him. Specifically, the petitioner testified that "[t]hey told me that if I didn't participate with them, that they were going to kill me. They said what they always say, which is, if you're not with us, you're against us." The gang members did not mention the petitioner's religion during either encounter.

To be sure, the petitioner testified that the gang members referred to his distribution of anti-gang pamphlets. He stated that he had distributed these pamphlets as part of his affiliation with a Christian youth group. Even so, the petitioner in no way alleged to the IJ that the gang members associated his pamphlet distribution with his Christian youth group affiliation. It was after his second encounter with the gang members that the petitioner decided to flee to the United States.

Among other things, the IJ questioned the petitioner about the additional documents that he did obtain and asked the petitioner, "[i]s there anything else you want to tell me?" The petitioner replied in the negative.

A sixth hearing was held approximately ten days thereafter. Before rendering her bench decision, the IJ again inquired of the petitioner: "[i]s there anything else ... you want to tell me that you haven't already told me about why you're afraid to go back to your home country?" The petitioner once more replied in the negative, and the IJ proceeded with her decision.

In that decision, the IJ rejected the petitioner's asylum claim as time-barred because the petitioner had not applied for asylum within the statutorily prescribed period. See 8 U.S.C. § 1158(a)(2)(B) (requiring — with exceptions not relevant here — that applications for asylum be filed within one year of an alien's entry into the United States). She also rejected the petitioner's CAT claim because the petitioner had not shown a sufficient nexus between the asserted harm and any government official. See Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir. 2008) (indicating that successful CAT claim must have nexus linking government official to torture inflicted or to be inflicted upon petitioner). The petitioner does not challenge either of these rulings, and we therefore treat both claims as abandoned. See Zaruma-Guaman v. Wilkinson, 988 F.3d 1, 8 (1st Cir. 2021) ; Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010) ; see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The IJ also denied the petitioner's claim for withholding of removal, explaining that the harm the petitioner allegedly suffered was not on account of either his religion or any other statutorily protected ground. See 8 U.S.C. § 1231(b)(3)(A).

The petitioner appealed this decision to the BIA. Represented by counsel, he proffered a sheaf of documents, asked the BIA to take administrative notice of facts that he claimed were evidenced by those documents, and sought an order remanding to the IJ for further consideration of both the extent to which Christians were persecuted in El Salvador and the causes of such persecution. As part of his argument, he noted that he had proceeded pro se before the IJ and — due to a language barrier and his custody status — was unable to submit the documents earlier. The BIA affirmed the IJ's decision, declined the invitation to take administrative notice of the proffered documents, eschewed any remand, and dismissed the appeal. See In re Sanchez-Vasquez, No. A201-582-862, at *1 (BIA Jun. 2, 2020). This timely petition for judicial review followed.

II

In this venue, the petitioner's asseverational array can be separated into three buckets. First, he contends that the agency's denial of withholding of removal cannot stand because he presented enough facts to establish persecution on account of his religious affiliation and activities. Second, he contends that the BIA erred in concluding that he had not raised certain arguments before the IJ and, therefore, erred in refusing to consider those arguments. Third, he contends that the BIA's mishandling of the "administrative notice" issue and/or its refusal to remand the case to the IJ for perscrutation of the proffered documents comprised an abuse of discretion. We discuss these asseverations sequentially, noting that when reviewing an order denying both a withholding-of-removal claim and a related refusal to remand, "[t]he statutory framework permits us to consider both [rulings] in a single proceeding." Morgan v. Holder, 634 F.3d 53, 56 (1st Cir. 2011) (citing 8 U.S.C. § 1252(b)(6) ). We caution, however, that these rulings "remain legally distinct." Id.

A

We begin by addressing the petitioner's contention that he established all the necessary elements of a withholding-of-removal claim. "Where, as here, the BIA embraces the IJ's decision but adds its own gloss, we review both decisions as a unit." Miranda-Bojorquez v. Barr, 937 F.3d 1, 5 (1st Cir. 2019). Our review of the factual findings of the agency proceeds pursuant to the substantial evidence standard. See Perez-Rabanales v. Sessions, 881 F.3d 61, 65 (1st Cir. 2018). "Under this highly deferential standard, we must accept the [agency's] findings so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (quoting Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) ). This means that "the agency's factual findings will not be disturbed unless ‘the record is such as to compel a reasonable factfinder to reach a contrary determination.’ " Id. (quoting Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012) ).

To obtain relief in the form of withholding of removal, an alien must establish a clear probability that, if returned to his homeland, he will be persecuted on account of a statutorily protected ground. See 8 U.S.C. § 1231(b)(3)(A) ; Rodríguez-Villar v. Barr, 930 F.3d 24, 27 (1st Cir. 2019) ; Villafranca v. Lynch, 797 F.3d 91, 97 (1st Cir. 2015). In the case at hand, the petitioner's primary claim before the IJ was that his religious affiliation and activities were the cause of the persecution that he allegedly suffered. We hasten to add that " ‘[p]ersecution’ is a term of art in immigration law." Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir. 2012) (citing Lopez Perez v. Holder, 587 F.3d 456, 461 (1st Cir. 2009) ). Establishing persecution requires proof of three discrete elements: a threshold level of past or anticipated serious harm, a nexus between that harm and government action or inaction, and a causal connection to one of the five statutorily protected grounds.² See id. If an alien cannot carry the devoir of persuasion on all three of these elements, his claim of persecution fails. See Aguilar-De Guillen v. Sessions, 902 F.3d 28, 33 (1st Cir. 2018).

Of course, an alien must establish the same three elements in order to secure asylum. See, e.g., Sosa-Perez v. Sessions, 884 F.3d 74, 76-77 (1st Cir. 2018) ; Carvalho-Frois, 667 F.3d at 72. This is pertinent for present purposes because much of the relevant case law analyzes persecution claims in the asylum context. See, e.g., Xian Tong Dong v. Holder, 696 F.3d 121, 125-27 (1st Cir. 2012) ; Singh v. Mukasey, 543 F.3d 1, 5-7 (1st Cir. 2008) ; Romilus v. Ashcroft, 385 F.3d 1, 7-8 (1st Cir. 2004). And even though a withholding-of-removal claim requires a higher level of proof than an asylum claim — "[w]ithholding of removal requires that an alien establish a clear...