Garcia-Cruz v. Sessions , 858 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2272
FELIPE GARCÍA-CRUZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Randy Olen, for petitioner.
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Andrew N. O'Malley, Senior Litigation Counsel,
were on brief, for respondent.
May 26, 2017
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions III is substituted for former Attorney
General Loretta E. Lynch, as respondent.
TORRUELLA, Circuit Judge. Petitioner Felipe García-
Cruz appeals from a Board of Immigration Appeals ("BIA") decision,
which affirmed an Immigration Judge's ("IJ") decision denying his
applications for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). García-Cruz argues
that he presented sufficient evidence to establish both past
persecution and a well-founded fear of future persecution, and
that he could not reasonably relocate within Guatemala, the country
of removal.
BACKGROUND
A. Factual Background1
García-Cruz is a native of Guatemala, from the village
of Chixocol, in the municipality of Zacualpa. García-Cruz became
involved in politics in June 2011, after seeing the Patriota
(Spanish for "Patriot") party's mayoral candidate for Zacualpa,
Gabriel Ventura, deliver a speech. That month, he joined the
Patriota party, and by August he had become a member of the party's
executive committee. As a member of the committee, he traveled
to campaign events to handle set up and logistics; in his time
with the party, he helped prepare three rallies.
1 The IJ found García-Cruz's testimony credible, and the BIA did
not make a contrary finding. We therefore summarize the facts as
presented by García-Cruz in his testimony and affidavit.
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The incumbent mayor, Ernesto Calachij-Riz, belonged to
the Une y Gana (Spanish for "Unite and Win") party. According to
García-Cruz, in the days leading up to the elections, Une y Gana
members "began to carry weapons and threaten [Patriota supporters]
with their weapons. They had guns and they had sticks and machetes
. . . and they knew who [Patriota supporters] were." Une y Gana
members also threatened to "kill anyone who voted for Ventura."
Patriota supporters were "ridiculed, sometimes even beaten by the
Une y Gana party." Nevertheless, García-Cruz and his family cast
their votes for Ventura on September 11, 2011.
That night, it was announced that Calachij-Riz, the Une
y Gana candidate, had won the race. The next morning, Patriota
members gathered at the Une y Gana victory rally, where a "huge
fight broke out" and the "city hall was set on fire." García-Cruz
was at home at the time, but other Patriota supporters told him
that "the Une y Gana party was going to kill off all the members
of the [Patriota party]." In addition, the Une y Gana party made
"a list of people they accused of being responsible for the fire."
García-Cruz was on the list, even though he "had nothing to do
with the fire," because of his "involvement in the Patriota party."
García-Cruz received five threatening phone calls in the
aftermath of the September 2011 election. The first came just
days after the election, when an anonymous caller -- who identified
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himself as an Une y Gana member -- blamed García-Cruz for the fire,
pledged to hold him responsible for it, and threatened his life.
A second anonymous caller made similar allegations and stated:
"We are watching you, and when we find you we will kill you."
García-Cruz became so concerned for his life that he stopped
leaving his house. In the third call, the caller asked García-
Cruz why he had stopped leaving the house, to which García-Cruz
responded that he was frightened.
Fearing for his life, García-Cruz moved to Cobán, Alta
Verapaz, Guatemala. There, he found work running games at fairs
and carnivals. On October 9, 2011, while in Cobán, García-Cruz
received the next phone call. The caller asked why he had left
Chixocol and told García-Cruz that they knew where he was. In the
fifth and final phone call, in January 2012, the caller told
García-Cruz that if he did not return to Chixocol, Une y Gana would
kidnap his wife and children. García-Cruz never reported the
threatening phone calls to authorities. He claimed that the local
police were "in the present mayor's pocket," and he feared word
would get back to those threatening him if he reported the calls
to the national police.
In the days after the fifth phone call, García-Cruz
relocated his family to the village of Salamá, about ten hours
from Chixocol. García-Cruz also removed the chip from his cell
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phone so that he would not receive any more calls. After saving
enough money, García-Cruz left Guatemala for the United States in
May 2012. Nothing suggests that he was either harmed or threatened
further between January and May of 2012.
The political conflict in Zacualpa resulted in other
Patriota members being targeted. García-Cruz averred that "other
members of the Patriota party were being kidnapped and beaten."
Two or three weeks after the election, an acquaintance of Ventura
was "taken from his home and beaten very badly." Another Patriota
member was abducted by Une y Gana and only returned as part of a
prisoner exchange. García-Cruz also testified that he knew of "at
least one" person who was killed by Une y Gana "in the year that
[he] left." García-Cruz does not know what happened to other
members of the committee who were accused of burning the city hall,
however. In June 2012, after García-Cruz fled Guatemala, Ventura
was arrested by the police for alleged crimes against his political
rivals, triggering further protests.
At the time of García-Cruz's hearing, the president of
Guatemala was a member of the Patriota party, but the Une y Gana
party remained in control of Zacualpa. In addition, García-Cruz's
wife and children were still living in Salamá. García-Cruz,
however, could not live with them because they lived with his
wife's employer, and he would not be able to find work in Salamá.
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B. Procedural History
García-Cruz conceded removability under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) and applied for asylum, withholding of
removal, and protection under the CAT on January 22, 2013. On
May 22, 2014, the IJ held a hearing on García-Cruz's application.
The IJ found his testimony to be credible, but she ruled that
García-Cruz did not establish past persecution. The IJ explained
that García-Cruz was never physically harmed and had worked in
public view, and the phone calls alone were not "so menacing as to
have caused some actual harm" and so did not rise to the level of
persecution. Moreover, given García-Cruz's failure to report the
calls to authorities, the IJ "could not conclude the requisite
government action or inaction."
The IJ also concluded that García-Cruz's fear of future
persecution was not well-founded; given the time elapsed and
García-Cruz's limited involvement with the campaign, there was
little support for his assertion that he would be targeted if he
returned to Guatemala. Furthermore, the IJ found that, "although
it would be economically difficult," García-Cruz could relocate
within Guatemala because Guatemala's president at the time of the
hearing was a member of the Patriota party and "the Patriota party
ha[d] gained significant ground in Guatemala." Specifically,
García-Cruz could "reasonabl[y]" and "safely" relocate to Salamá,
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where he had relocated his wife and children. Thus, the IJ denied
García-Cruz's applications for both asylum and withholding of
removal. The IJ concluded by denying García-Cruz's application
for protection under the CAT given his failure to demonstrate that
he would be subjected to torture by or with the acquiescence of a
public official.
On September 30, 2015, the BIA upheld the IJ's decision
on two grounds. First, it adopted the IJ's determination that the
"five anonymous threatening phone calls were not so menacing as to
have caused some actual harm," and so they did not rise to the
level of past persecution. Second, it found "no clear error of
fact or mistake of law in the Immigration Judge's assessment" that
García-Cruz "would be able to relocate to another area in
Guatemala." It cited the fact that his wife and children lived
in Salamá as "strong evidence that [García-Cruz] could do so as
well." Thus, the BIA ruled that García-Cruz was not eligible for
either asylum or withholding of removal. Finally, the BIA
affirmed that García-Cruz failed to establish that "he had ever
been tortured or that government officials seek to torture him."2
2 The BIA did not adopt the IJ's findings (1) that it "could not
conclude the requisite government action or inaction," or (2) that
García-Cruz had not established a well-founded fear of future
persecution even if he did not relocate within Guatemala. We
therefore do not review those issues. Renaut v. Lynch, 791 F.3d
163, 170-71 (1st Cir. 2015); Romilus v. Ashcroft, 385 F.3d 1, 5
(1st Cir. 2004) ("[W]here the BIA's decision adopts portions of
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The BIA therefore dismissed his appeal, and García-Cruz petitioned
this Court for review.
ANALYSIS
We review the BIA's findings of fact under a "substantial
evidence" standard, and we will uphold them if they are "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." Xin Qiang Liu v. Lynch, 802 F.3d 69, 74
(1st Cir. 2015) (quoting Hasan v. Holder, 673 F.3d 26, 33 (1st
Cir. 2012)). Questions of law are reviewed de novo. Id. Thus,
we will reverse the BIA's determination only if "any reasonable
adjudicator would be compelled to conclude to the contrary."
8 U.S.C. § 1252(b)(4)(B).
To be eligible for asylum, García-Cruz must establish
that he is unwilling or unable to return to Guatemala "because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). "Proof
of past persecution creates a presumption of a well-founded fear
of future persecution." Ordonez-Quino v. Holder, 760 F.3d 80, 87
(1st Cir. 2014); 8 C.F.R. § 1208.13(b)(1). But the Government can
rebut this presumption by demonstrating either changed
the IJ's opinion, we review those portions of the IJ's opinion
that the BIA has adopted.").
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circumstances or that García-Cruz "could avoid future persecution
by relocating to another part of [Guatemala] . . . and under all
the circumstances, it would be reasonable to expect [him] to do
so." 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B). Similarly, García-Cruz
cannot establish a well-founded fear of future persecution if he
"could avoid persecution by relocating to another part of
[Guatemala] . . . [and] under all the circumstances it would be
reasonable to expect [him] to do so." 8 C.F.R. § 1208.13(b)(2)(ii).
A. Substantial Evidence Supported the BIA's Determination that
García-Cruz Did Not Suffer Past Persecution
García-Cruz sought to demonstrate that he suffered
persecution in Guatemala, in the form of death threats, on account
of his political beliefs, thus creating a rebuttable presumption
that he will more likely than not suffer persecution if returned
to Guatemala. See 8 C.F.R. § 1208.13(b)(1). "[C]redible, specific
threats can amount to persecution if they are severe enough."
Javed v. Holder, 715 F.3d 391, 395-96 (1st Cir. 2013). "'Threats
of murder' fit squarely within this rubric." Id. at 396 (quoting
López de Hincapié v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007)).
"[T]he addition of physical violence" is not required for a finding
of past persecution, id., but "threats standing alone constitute
past persecution in only a small category of cases, and only when
the threats are so menacing as to cause significant actual
suffering or harm." Bonilla v. Mukasey, 539 F.3d 72, 77 (1st Cir.
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2008) (quoting Tobon–Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir.
2008)).
In Bonilla, the petitioner received frequent telephone
calls from a militant group threatening his and his family's lives
because of his support for a presidential candidate. Id. at 74-
75. After he changed his telephone number, the same group left a
letter outside his apartment declaring the petitioner "a military
target." Id. at 75. The BIA adopted the immigration judge's
ruling that this was not past persecution. Id. at 76. We affirmed,
stating that "we [could not] say that the agency was compelled to
find that [the petitioner] was persecuted." Id. at 78.
Similarly, in Un v. Gonzales, the petitioner was twice confronted
by government agents, who told him on the second occasion that he
would be killed, and a friend subsequently told him to "go into
hiding because they were 'looking to kill [the petitioner].'" 415
F.3d 205, 207-08 (1st Cir. 2005). The BIA had not considered the
possibility of past persecution, and we remanded for a finding
because "we [could not] say the evidence compels a conclusion
either way." Id. at 209.
The intensity and credibility of the threats received by
García-Cruz are similar to those in Bonilla and Un. Bonilla in
particular seems factually analogous, closer than cases like
Javed, 715 F.3d 391, cited by García-Cruz, in which we have held
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that threats constituted persecution as a matter of law. Although
the BIA certainly could have found that García-Cruz suffered past
persecution on this record, given our deferential standard of
review, we cannot say that it was compelled to do so.
B. The BIA Did Not Correctly Analyze Whether It Would Be
Reasonable to Expect García-Cruz to Relocate Within Guatemala
The BIA concluded that García-Cruz "did not establish
. . . a well-founded fear of persecution." However, it did so on
only one possible ground -- by adopting the IJ's finding that
García-Cruz "would be able to relocate to another area in
Guatemala."
"An applicant does not have a well-founded fear of
persecution if the applicant could avoid persecution by relocating
to another part of the applicant's country of nationality . . . if
under all the circumstances it would be reasonable to expect the
applicant to do so." 8 C.F.R. § 1208.13(b)(2)(ii). When determining
whether such internal relocation is reasonable:
adjudicators should consider, but are not limited to
considering, whether the applicant would face other
serious harm in the place of suggested relocation; any
ongoing civil strife within the country;
administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural
constraints, such as age, gender, health, and social
and familial ties.
8 C.F.R. § 1208.13(b)(3).
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Determining whether an applicant can reasonably relocate
within the applicant's country of nationality entails a two-step
analysis. Matter of M-Z-M-R-, 26 I. & N. Dec. 28, 32 (2012).
First, the BIA must decide whether there is a safe area of the
country, i.e., one where the applicant would have no well-founded
fear of persecution. Id. Second, if there is such an area, the
BIA must analyze whether "it would be reasonable for the applicant
to relocate," applying the considerations of 8 C.F.R. § 1208.13
(b)(3). Id. at 34-35 (quoting 8 C.F.R. § 1208.13(b)(1)(i)(B)).
1. Jurisdiction
Before we proceed, we must determine whether we can
review all of García-Cruz's arguments. We may only review García-
Cruz's claims if he "has exhausted all administrative remedies
available to [him] as of right." 8 U.S.C. § 1252(d)(1). In his
appeal to the BIA, García-Cruz argued only that he would not be
safe if he relocated within Guatemala. He did not argue that the
IJ made any error in determining that it would be reasonable for
him to relocate. Before us, however, García-Cruz also argues that
the IJ and the BIA did not properly apply the considerations listed
in 8 C.F.R. § 1208.13(b)(3).
The Government has not raised this issue, and it appears
that we have not previously addressed whether we would raise
failure to exhaust sua sponte in the asylum context. But
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administrative exhaustion in this context is an "inquiry into
subject-matter jurisdiction," Mazariegos-Paiz v. Holder, 734 F.3d
57, 62 (1st Cir. 2013), and where a requirement is jurisdictional
-- where it "affect[s] a court's constitutional or statutory power
to adjudicate a case" -- a party's failure to fulfill that
requirement is "nonwaivable." Bennett v. City of Holyoke, 362
F.3d 1, 7–8 (1st Cir. 2004); see also Alphas Co. v. William H.
Kopke, Jr., Inc., 708 F.3d 33, 36–38 (1st Cir. 2013). We therefore
hold that we may determine whether a petitioner has exhausted his
or her administrative remedies as required by 8 U.S.C.
§ 1252(d)(1), even if no party has addressed the issue.
A petitioner generally "cannot proffer a theory to the
IJ, forgo any presentation of that theory to the BIA, and then
resurrect the theory on a petition for judicial review." Ramírez-
Matías v. Holder, 778 F.3d 322, 327 (1st Cir. 2015). Although a
party presenting an issue to the BIA is the most common way in
which an issue is exhausted, however, it is not the only way.
Mazariegos-Paiz, 734 F.3d at 62. Even if an issue was not raised
by a party, the issue is exhausted if the BIA addresses the issue
on the merits. Id. at 63 ("Where an agency has opted to [address
an issue], there is no logical reason why exhaustion should turn
on which party (if either) brought the issue to the agency's
attention."); see also Xin Qiang Liu, 802 F.3d at 74 ("The
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exhaustion requirement is satisfied where the agency chooses to
address the merits of a particular issue, regardless of whether
the alien raised that issue." (quoting Meng Hua Wan v. Holder, 776
F.3d 52, 56 (1st Cir. 2015)).
Here, the IJ squarely addressed the issue. It found
that although "it would be economically difficult [for García-Cruz
to relocate], it is reasonable to expect internal relocation rather
than to come to the United States." The IJ further explained that
García-Cruz's "wife and children remain in Guatemala in a town
nine to [ten] hours from Chixocol" and so it would be "reasonable
for [him] to relocate there" -- plus, the IJ added, "he could do
so safely."
For its part, the BIA repeated how the IJ had found that
García-Cruz "would be able to relocate to another area in
Guatemala." The BIA then stressed that "[i]n this regard," the
IJ had noted that García-Cruz's "wife and child remain in Guatemala
in a town 9 or 10 hours away, strong evidence that [he] could do
so as well." And the BIA found "no clear error of fact or mistake
of law with the [IJ's] assessment." The BIA therefore briefly
addressed the reasonableness of internal relocation on its own --
finding that his wife and children remaining in Guatemala was
"strong evidence" that he could relocate -- and it adopted the
IJ's more detailed reasoning on that point. Thus, we can review
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both whether the BIA properly found that it was safe for García-
Cruz to relocate within Guatemala -- which García-Cruz has raised
at every level -- and whether the BIA properly found that he could
reasonably do so -- an issue which the BIA addressed on the merits.
2. The Merits
Substantial evidence supports the BIA's finding that
García-Cruz could safely relocate within Guatemala. As the IJ
described: García-Cruz lived in Cobán from January 2012 to May
2012 without any further threats after removing the chip from his
phone; his wife and children apparently lived unmolested after
they moved to Salamá; at the time of the hearing, almost three
years had passed since the 2011 mayoral election; and "the Patriota
party ha[d] gained significant ground in Guatemala." Although
none of this evidence is conclusive, we are not compelled to
overturn the IJ's finding.
But the IJ and the BIA described no similar evidence to
support their conclusion that, although "it would be economically
difficult," it would be reasonable to expect García-Cruz to
relocate internally. Instead, both essentially asserted that
because García-Cruz's wife and children resided elsewhere in
Guatemala, so could he.
8 C.F.R. § 1208.13(b)(3), however, lists a number of
factors that an adjudicator should consider. "[W]hile the IJ and
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BIA do not necessarily have to address each of [8 C.F.R.
§ 208.13(b)(3)'s] reasonableness factors explicitly . . . the
agency must explain why the factors that cut against the asylum
applicant outweigh the factors in his favor." Khattak v. Holder,
704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v.
Gonzales, 241 F. App'x 432, 434 (9th Cir. 2007) (remanding asylum
petition for further review because "the IJ did not consider
whether [the petitioner's] relocation would be reasonable"). In
Khattak, the BIA determined that the petitioner could relocate to
another part of Pakistan where he owned a home and had briefly
lived twenty years earlier. 704 F.3d at 206-07. We remanded to
the BIA, however, because (1) "neither the IJ nor the BIA addressed
evidence in the record indicating that" the petitioner would not
be safe in that area and (2) "neither the IJ nor the BIA made any
mention of [the reasonableness] factors." Id. at 207.
Relevant factors here include:
 "ongoing civil strife within the country" (the IJ found that
"electoral violence" is common "in every electoral cycle");
 "economic . . . infrastructure" (the IJ found that relocation
"would be economically difficult");
 "social and cultural constraints" (García-Cruz speaks Quiché,
a minority language that has no official status and is spoken
mainly in Guatemala's central highlands); and
 "familial ties" (all of García-Cruz's extended family live in
Chixocol).
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Yet the IJ and the BIA discussed only the fact that García-Cruz's
wife and children were in Salamá. They did not address evidence
in the record that appears to undercut the conclusion that García-
Cruz could reasonably relocate within Guatemala -- for example,
García-Cruz's testimony that he could not live with his wife in
Salamá and does not "have a home . . . [or] a job" there. Thus,
neither the BIA nor the IJ "presented a reasoned analysis of the
evidence as a whole." Id. at 208 (quoting Jabri v. Holder, 675
F.3d 20, 24 (1st Cir. 2012)).
García-Cruz asserts that "every single factor" supports
a conclusion that he cannot reasonably relocate, but he does little
to develop this argument. He then asserts that the BIA's
"unfounded conclusion . . . itself requires reversal." That is
not accurate. To reverse the BIA's order, rather than simply
remand it, the evidence must compel us to conclude that it would
be unreasonable for García-Cruz to relocate within Guatemala. Id.
at 207 (citing INS v. Elías-Zacarías, 502 U.S. 478, 481 n.1
(1992)). There is significant evidence in the record supporting
a conclusion that relocation would be unreasonable. But García-
Cruz has understandably focused on the BIA's failure to properly
analyze the reasonableness factors, rather than whether the
evidence compels a finding that internal relocation would be
unreasonable, and neither the IJ nor the BIA weighed the
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reasonableness factors. Given the limited analysis on this issue,
we think it best to remand to the BIA to consider it fully. We
therefore grant the petition for review, vacate the BIA's order,
and remand for further proceedings.3
CONCLUSION
Petition for review granted, order vacated, and case
remanded for further proceedings.
"Dissenting opinion follows"
3 Because we vacate the BIA's denial of García-Cruz's asylum
petition, we do not reach García-Cruz's withholding of removal and
CAT claims.
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KAYATTA, Circuit Judge, dissenting in part. I agree
with my colleagues that the record supports the BIA's finding that
the events occurring before García-Cruz left Guatemala to enter
the United States in May of 2012 did not constitute the type of
persecution that creates a presumption of a well-founded fear of
future persecution. I also agree that the record supports the
BIA's finding that García-Cruz could have, in any event, safely
moved elsewhere in Guatemala.
I cannot agree, however, that we have jurisdiction to
adjudicate García-Cruz's newly minted argument that the agency
failed to consider adequately the relevant factors in finding that
it would be "reasonable" to expect him to relocate within
Guatemala. Congress has stated that we "may review a final order
of removal only if . . . the alien has exhausted all administrative
remedies available to the alien as of right." 8 U.S.C.
§ 1252(d)(1). This means "that theories not advanced before the
BIA may not be surfaced for the first time in a petition for
judicial review of the BIA's final order." Makhoul v. Ashcroft,
387 F.3d 75, 80 (1st Cir. 2004). We have further concluded that
"[t]his exhaustion requirement is jurisdictional; that is, it
constitutes a limitation on our power of review." Mazariegos-Paiz
v. Holder, 734 F.3d 57, 62 (1st Cir. 2013); see also Sousa v. INS,
226 F.3d 28, 31 (1st Cir. 2000) ("Whatever our own views, we are
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bound by precedent to apply the INA exhaustion requirement in a
more draconian fashion.").
As my colleagues concede, García-Cruz never raised
before the BIA his challenge to the thoroughness of the IJ's
consideration of the factors set forth in 8 C.F.R. § 1208.13(b)(3)
in finding that relocation within Guatemala would be reasonable.
In order to leap over this significant jurisdictional hurdle, my
colleagues declare that the BIA sua sponte raised and exhausted
the issue of whether relocation would be reasonable. They then
assert that we can find, essentially, that the BIA's sua sponte
exhaustion of that issue was not exhaustive enough, because the
BIA did not also sua sponte evaluate factors that García-Cruz never
faulted the IJ for allegedly failing to consider.
To explain my disagreement, I first recount exactly what
transpired before the agency. On the subject of relocation, the
IJ stated the following:
Given that the Patriota party has gained . . . ground
[in Guatemala] and the president of the country is
part of that party, the Court finds that the
respondent could internally relocate and that,
although it would be economically difficult to do
that, it is reasonable to expect internal relocation
rather than come to the United States.
. . . Finally, the respondent's wife and children
remain in Guatemala in a town nine to 10 hours away
from Chixocol and the Court finds that it is
reasonable for the respondent to relocate there and
that he could do so safely.
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It is plain from the above that the IJ made two relevant findings,
consistent with the two-step analysis described in Matter of M-Z-
M-R-, 26 I. & N. Dec. 28, 31–32 (B.I.A. 2012): (1) García-Cruz
could safely relocate within Guatemala, and (2) it would be
reasonable for him to do so.
As my colleagues acknowledge, in his appeal to the BIA,
García-Cruz raised a question concerning only the first of those
two findings. In García-Cruz's own words, the question was
"[w]hether respondent can safely relocate within Guatemala." With
respect to that question, he advanced only a single, specific
argument (again in his words): "Respondent cannot safely relocate
within Guatemala." And in support of that argument, he stated
only:
Respondent has demonstrated that he was targeted
by political enemies from UNE y GANA, a national
party. As a highly visible public supporter of this
party, he runs the risk of being identified and
targeted throughout the country.
The fact that respondent's wife and children have
not been harmed after fleeing their hometown should
be given very little weight. Respondent's wife and
children were not public supporters of the party and
were not themselves politically active. Accordingly,
it is unlikely that respondent's persecutors have been
able to determine the identity and location of his
family. In contrast, respondent's persecutors can
easily recognize him on sight. Given these facts,
the fact that respondent's wife and children have so
far escaped harm does not indicate that he can also
safely relocate within Guatemala.
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(citations omitted). The BIA directly responded to García-Cruz's
argument with the following:
[T]he Immigration Judge found that the respondent
would be able to relocate to another area in
Guatemala. In this regard, the Immigration Judge
noted that the respondent's wife and children remain
in Guatemala in a town 9 or 10 hours away, strong
evidence that the respondent could do so as well.
We see no clear error of fact or mistake of law
in the Immigration Judge's assessment.
(citations omitted).
To find from the foregoing that the BIA raised -- or
even acknowledged -- a challenge to the IJ's step-two,
reasonableness finding, one logically must point to language that
one would not expect to find were the BIA simply discussing and
rejecting García-Cruz's argument that it was not safe for him to
relocate. My colleagues point to no such language. Rather, and
without explanation, they point to the fact that the BIA said
García-Cruz "would be able to relocate." Yet this is what one
would well expect the BIA to say in rejecting García-Cruz's
argument that he could not safely relocate. My colleagues
otherwise point (again without explanation) to the BIA's
observation that the fact that García-Cruz's wife and children
remained in Guatemala provided strong evidence that García-Cruz
could do so as well. But this statement, too, was directly
responsive to García-Cruz's argument that the experience of his
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wife and children did not mean that he could safely relocate as
well. In short, there is no basis for reading into the BIA's
opinion any indication that it was addressing or even aware of any
challenge to the IJ's step-two, reasonableness finding. Indeed,
the very fact that my colleagues fault the BIA for not expressly
weighing any of the step-two, reasonableness factors listed in
8 C.F.R. § 1208.13(b)(3) underscores my point: the BIA did not
weigh those factors because it did not need to do so in order to
respond to García-Cruz's challenge to the IJ's step-one, safety
finding. To conclude otherwise is to conclude that the BIA decided
on its own to raise a question about whether the IJ's consideration
of the § 1208.13(b)(3) factors was thorough enough, and then
decided not to say anything at all about the regulation, the
factors, or the thoroughness of the IJ's review. If this is
exhaustion, then fatigue must be pandemic at the BIA.
The foregoing explains why the BIA did not hint at or
acknowledge the reasonableness issue. But even such a hint or
acknowledgement would not have been enough to justify my
colleagues' finding of sua sponte exhaustion. Our precedent
requires the BIA to "squarely address[]" an issue in order for us
to find that it sua sponte exhausted the issue. Mazariegos-Paiz,
734 F.3d at 63; see also Velerio-Ramirez v. Lynch, 808 F.3d 111,
117 (1st Cir. 2015) (finding that the BIA sua sponte exhausted the
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issue of which law applied because the BIA "addressed applicable
law directly" by "remarking on the IJ's erroneous use of removal
law, stating that [petitioner's] application is governed by
deportation law, and making [an] additional unbriefed
determination" regarding the issue). Applied with straight-faced
rigor, this "squarely address[]" test ensures that we recognize
sua sponte exhaustion only when "the agency makes clear its wish
to entertain the argument." Garcia-Carbajal v. Holder, 625 F.3d
1233, 1239 (10th Cir. 2010) (Gorsuch, J.).
I am at a loss to explain how the BIA's opinion "squarely
addressed" a challenge to the IJ's finding not merely that it would
be safe for García-Cruz to relocate, but also that it would be
reasonable for him to do so. Perhaps what my colleagues mean to
say is that if one discusses the first step of the two-step
8 C.F.R. § 1208.13(b)(2)(ii) inquiry, then one necessarily
"exhausts" all challenges to the second step as well. But if this
were so, then we would hold that García-Cruz himself, merely by
challenging the IJ's first-step finding as to safety, also
exhausted his claim that the IJ committed procedural error in
making the reasonableness determination required by the second
step of the analysis. And since my colleagues correctly do not
so hold, they must think that the BIA raised something that García-
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Cruz did not, and then squarely addressed it. Yet I can find no
explanation in my colleagues' opinion of how this is so.
The exhaustion requirement established by 8 U.S.C.
§ 1252(d)(1), like most issue-preservation rules, ensures a
modicum of repose and orderliness in the narrowing of issues that
occurs as a dispute progresses through several layers of review.
This requirement preserves the agency's statutory prerogative to
go first, while also avoiding the delay and uncertainty that would
result from multiple rounds of agency review. See Mazariegos-
Paiz, 734 F.3d at 62–63 (citing, inter alia, SEC v. Chenery, 332
U.S. 194, 200–01 (1947)). Sua sponte exhaustion does not hinder
the achievement of these goals, so long as we are confident that
the agency really did do what it would have done had the petitioner
properly raised an argument. The "squarely address[]" rule
provides that assurance only because it demands unambiguous
evidence that the agency exhausted the issue on its own. By
contrast, my colleagues' dowsing for sua sponte, collateral
exhaustion buried in the disposition of properly raised issues
provides no such assurance. The notion that the agency itself,
rather than the petitioner, may satisfy § 1252(d)(1)'s exhaustion
requirement already stretches the boundaries of our jurisdictional
grant. At least, though, we can say that the purposes of the
exhaustion requirement are served when the BIA, for whatever
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reason, has squarely addressed the petitioner's otherwise
unpreserved basis for challenging the IJ's decision. See id.
When we take the yet further step of gleaning exhaustion from a
record as bare as this one, on issues that, as here, raise no
constitutional considerations, we abandon both statutory text and
congressional purpose, and place ourselves in direct conflict with
not only our own precedent, see id., but also the precedent of at
least one other circuit, see Garcia-Carbajal, 625 F.3d at 1238–
39. Such, I fear, may tempt Congress to conclude that the circuit
courts of appeals cannot be trusted with our already limited power
of review in this domain. I therefore respectfully dissent from
the order remanding this case to the BIA.
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