Rodriguez-Palacios v. Barr , 927 F.3d 13 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1430
JAIME RODRIGUEZ-PALACIOS,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
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, on brief for respondent.
June 12, 2019
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.
1 Rodriguez notes that the Notice to Appear failed to
designate a date or time for the future hearing, stating only that
he was required to appear at a date and time "to be set." Citing
Pereira v. Sessions, 138 S. Ct. 2105 (2018), Rodriguez contends
that his Notice to Appear is now considered statutorily deficient,
rendering him eligible for Cancellation of Removal for
Nonpermanent Residents. However, he does not offer any arguments
to us in reliance on Pereira, but rather notes that he has filed
a motion before the BIA to remand the matter to the IJ. Therefore,
we do not address that issue in this opinion.
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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.
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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
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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
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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. Therefore, we do not have
jurisdiction to review his petition for review of the BIA's ruling
on his asylum claim. See Oroh v. Holder, 561 F.3d 62, 66–67 (1st
Cir. 2009).
B.
Rodriguez also sought withholding of removal and
protection under the CAT. These forms of relief require the
petitioner to prove that it is "more likely than not" that he
himself would face persecution or torture if he returned to his
home country. Usman, 566 F.3d at 268 (quoting Guillaume v.
Gonzales, 504 F.3d 68, 71 n.2 (1st Cir. 2007)). There is no
jurisdictional bar to our review of the BIA's rulings as to these
claims. Nevertheless, we reject his challenges to the BIA's
rulings as to each.
With respect to his challenge to the BIA's ruling
affirming the IJ's denial of his request for withholding of
removal, Rodriguez waived it by failing to develop it in his
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opening brief. See, e.g., United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."). That leaves, then, only Rodriguez's challenge
to the BIA's affirmance of the IJ's denial of his CAT claim on the
ground that "there is no evidence in the record that the respondent
would be singled out for torture with the consent or acquiescence
of a public official." (Emphasis added).
The IJ specifically found that Rodriguez was not
tortured in the past, that his family has not been tortured in
Mexico, and that, although one of his friends was killed, Rodriguez
had not provided any evidence with respect to that crime to show
the motivation of the killers. As Rodriquez fails to identify any
evidence to suggest that substantial evidence fails to support the
BIA's affirmance of the IJ's finding that he himself is not likely
to be tortured, he provides us with no basis for overturning the
BIA's ruling on his CAT claim.
III.
The petition for review is dismissed in part and denied
in part.
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