Sarmiento v. Garland

Decision Date17 August 2022
Docket Number20-1679
Citation45 F.4th 560
Parties Fabio Noe GARCIA SARMIENTO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

45 F.4th 560

Fabio Noe GARCIA SARMIENTO, Petitioner,
v.
Merrick B. GARLAND,* Attorney General, Respondent.

No. 20-1679

United States Court of Appeals, First Circuit.

August 17, 2022


Susan M. Pires on brief for petitioner.

Timothy G. Hayes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Brian Boynton, Acting Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, on brief for respondent.

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

LYNCH, Circuit Judge.

Petitioner Fabio Noe Garcia Sarmiento purports to petition for review of two decisions of the Board of Immigration Appeals ("BIA"). In the first decision, dated January 16, 2020, the BIA dismissed Garcia Sarmiento's appeal of an Immigration Judge's ("IJ") denial of his application for withholding of removal, 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture ("CAT"), 8 C.F.R. § 1208.16(c). In the second, dated June 10, 2020, the BIA denied his motion to reopen proceedings, 8 U.S.C. § 1229a(c)(7). Because the petition is timely only as to the June 10 decision, we dismiss Garcia Sarmiento's petition for review of the January 16 decision. As to the June 10 decision, we deny the petition to review the BIA's denial of the motion to reopen.

45 F.4th 562

I.

These facts are drawn primarily from the IJ's oral decision of August 30, 2019, which was the subject of the January 16, 2020 BIA decision. Garcia Sarmiento is a native and citizen of Honduras. He first entered the United States in 2001 as a lawful permanent resident. He was ordered removed and deported to Honduras in 2008 after he was convicted of possession of cocaine. In Honduras, Garcia Sarmiento had a barbershop. Gang members came to his business several times in the summer of 2014 and threatened him, demanding that he pay them rent. In June of 2014, gang members killed Garcia Sarmiento's brother. Garcia Sarmiento left Honduras and, fearing violence from the gangs, reentered the United States without inspection in 2014. Garcia Sarmiento pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(1) and was sentenced to time served. See Judgment in a Criminal Case, United States v. Garcia-Sarmiento, No. 18-cr-00108 (D.R.I. June 14, 2019), ECF No. 26. On July 26, 2019, the Department of Homeland Security ("DHS") reinstated Garcia Sarmiento's previous removal order.

After expressing a fear of returning to Honduras, Garcia Sarmiento was referred to an asylum officer to determine his eligibility to apply for withholding of removal. Following an interview where it was determined Garcia Sarmiento had a reasonable fear of harm if he were returned to Honduras, he applied for withholding of removal. On August 30, 2019, Garcia Sarmiento had a hearing before an IJ. The IJ found that Garcia Sarmiento was credible. The IJ concluded that Garcia Sarmiento had not met his burden of showing eligibility for withholding of removal for three reasons: he had not demonstrated that he was a member of a protected social group, he had not shown the requisite nexus between his belonging to even his purported protected social group and the violence he feared, and he did not show that the Honduran government would be unwilling or unable to control the gang violence. See 8 U.S.C. § 1231(b)(3) ; see also Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008). The IJ found that CAT protection was not warranted because there was insufficient evidence that Garcia Sarmiento would more likely than not be tortured if he returned to Honduras. This was based on the evidence that Garcia Sarmiento had never been harmed by government officials and his testimony that he did not think the police would harm him, he did not fear the police, and he did not know if police were working with the people who wanted to harm him or if they would allow others to hurt him. See 8 C.F.R. § 1208.18(a)(1) ; see also Ali v. Garland, 33 F.4th 47, 53 (1st Cir. 2022). On appeal, the BIA adopted and affirmed the IJ's decision on January 16, 2020.

Garcia Sarmiento filed a motion with the BIA to reopen removal proceedings regarding the 2008 removal order and to stay removal on January 24, 2020. See 8 U.S.C. § 1229a(c)(7). The basis of his motion was the vacatur of his cocaine-possession conviction, which had led to his removal in 2008. He argued that the vacatur of his cocaine-possession conviction would make him eligible for and likely to succeed on a claim for either cancellation of removal or voluntary departure.

On June 10, 2020, the BIA denied Garcia Sarmiento's motion to reopen, finding that he had not established prima facie eligibility for relief. The BIA first found that under section 241(a)(5) of the Immigration and Nationality Act, Garcia Sarmiento was ineligible for relief because he was in withholding-only proceedings after having a prior removal order reinstated. See 8 U.S.C. § 1231(a)(5). It next found that even

45 F.4th 563

if Garcia Sarmiento were not barred from such relief, he had not demonstrated either that he had been continuously physically present in the United States for ten years or any hardship to qualifying relatives, both of which are necessary to establish a prima facie case for eligibility for cancellation of removal. See id. § 1229b(b)(1). The BIA also found that the new evidence would "not impact the reasoning for the denial of his prior applications for relief."

Garcia Sarmiento timely petitioned for review of the June 10 BIA decision on July 9, 2020. See 8 U.S.C. § 1252(b)(1).

II.

A. January 16, 2020 BIA Decision

In his petition, Garcia Sarmiento argues that the BIA erred in...

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    • August 17, 2022
  • Reyes-Ramos v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 13, 2023
    ...whether we can exercise jurisdiction under § 1252 over the reasonable 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 or......
  • Reyes-Ramos v. Garland, 18-1830
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 13, 2023
    ...... 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 ......

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