Cante-Lopez v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1922
BILIAN ARGELIO CANTE-LOPEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Randy Olen on brief for petitioner.
Sherease Pratt, Senior Litigation Counsel, with whom Brian M.
Boynton, Principal Deputy Assistant Attorney General, and Sheri R.
Glaser, Senior Litigation Counsel, were on brief, for respondent.
October 5, 2022
BARRON, Chief Judge. Bilian Argelio Cante-Lopez, a
citizen of Guatemala, petitions for review of the denial by the
Board of Immigration Appeals ("BIA") of his application for
withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA
affirmed the Immigration Judge ("IJ") without opinion. The
petition is dismissed due to Cante-Lopez's failure to exhaust an
issue on which his challenge to the BIA's ruling depends.
I.
Cante-Lopez entered the United States without inspection
on May 12, 2014 and was placed in removal proceedings on May 13,
2014. At his removal proceedings before the IJ in Boston,
Massachusetts on December 20, 2018, he sought asylum and
withholding of removal or, in the alternative, voluntary
departure. The IJ denied Cante-Lopez's asylum claim and
application for withholding of removal. The IJ then denied his
request for voluntary departure.
In denying Cante-Lopez's application for withholding of
removal, the IJ determined that Cante-Lopez had not suffered past
"harm rising to the level" of statutory persecution. Next, the IJ
determined that Cante-Lopez had failed to establish that the harm
he had suffered was on account of a statutorily protected ground.
Finally, the IJ determined that, "[f]or the reasons explained
above," Cante-Lopez had failed to establish that it was more likely
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than not that his "life or freedom would be threatened on account
of any such protected ground" in the future.
Following the IJ's ruling, Cante-Lopez filed a notice of
appeal with the BIA on Form EOIR-26. 8 C.F.R. § 1003.3(b). In
the space provided to "[s]tate in detail the reason(s) for this
appeal," Cante-Lopez stated:
The Immigration Judge did deny the Respondent's
applications for asylum and withholding of removal. The
Immigration Judge did err in her application of the facts
(multiple murders, extortions, threats) to the
particular social group of family. It is submitted that
the facts of record, credible facts, demonstrate that
the motivation for the past persecutions to the
Respondent's family was causually [sic] linked and that
the motivation was kinship.
Cante-Lopez then filed a two-page brief in support of
his appeal to the BIA. Cante-Lopez presented the issue as follows:
"Did the Immigration Judge err in failing to find that the
Respondent was entitled to a grant of withholding of removal based
upon his membership in a particular social group." His brief
relied on what he contended was BIA precedent "establish[ing] that
family may serve as a particular social group for purposes of
asylum/withholding analysis" and argued that Cante-Lopez was "the
latest in a long line of threatened individuals from the same
extended family of brothers and sisters and their offspring."
The BIA affirmed without opinion pursuant to 8 C.F.R. §
1003.1(e)(4). After securing new counsel, Cante-Lopez petitioned
this court for review of the BIA's decision.
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II.
Cante-Lopez petitions for review of only the BIA's
denial of the application for withholding of removal. Cante-Lopez
contends that the IJ -- and thus the BIA, by affirming the IJ
without opinion -- erred in denying his application for withholding
of removal because the IJ wrongly determined that Cante-Lopez had
not shown that the harm that he either had suffered or would suffer
constituted persecution "on account of" a statutorily protected
ground, given what he contends the record shows about the nexus
between his family status and the harm that he both had suffered
and would suffer. But, even if we were to assume that Cante-Lopez
is right on that score, we still must dismiss his petition. The
reason is that, as we will explain, the IJ denied Petitioner's
application for withholding of removal for failure to meet his
burden to show that either the harm that he had suffered or the
harm that he would suffer rises to the level of persecution. 8
C.F.R. § 1208.16(b)(1)-(2). Yet, Cante-Lopez did not challenge
that aspect of the IJ's ruling when he appealed that ruling to the
BIA. Thus, Cante-Lopez cannot bring that challenge to us for the
first time, given that the issue was not exhausted.
In contending otherwise, Cante-Lopez disputes that, with
respect to his claim that he would suffer future persecution on
account of his family status, the IJ made any determination as to
whether the future harm that Cante-Lopez claimed that he would
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suffer was severe enough to rise to the level of persecution.
Thus, Cante-Lopez contends, he was not required to raise that issue
before the BIA, as he contends that the IJ relied solely on the
lack of a nexus in rejecting Cante-Lopez's future-persecution-
based withholding of removal claim. But, we do not agree with
that understanding of the IJ's ruling.
As we have noted above, in rejecting Cante-Lopez's claim
for withholding of removal based on a showing of past persecution,
the IJ relied on two distinct conclusions. First, the IJ
determined that the record showed that Cante-Lopez's past harm did
not rise to the level of statutory persecution. In addition, the
IJ concluded that Cante-Lopez had failed to show that any harm he
suffered prior to leaving Guatemala was inflicted on account of a
statutorily protected ground because Cante-Lopez had failed to
demonstrate that his family membership was the motivation for the
harm. And, as we have also noted above, the IJ then rejected
Petitioner's withholding of removal application insofar as it was
based on a showing of future persecution "[f]or the reasons
explained above." Thus, in context, we understand the IJ to have
rejected Petitioner's future persecution claim on the same grounds
as his past persecution claim: Cante-Lopez failed to show that any
future harm would rise to the level of statutory persecution, and
he failed to show that the motivation of any such future harm would
be his family membership.
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We note that this reading draws support not merely from
the IJ's use of the phrase "[f]or the reasons explained above"
(emphasis added). It also draws support from the fact that Cante-
Lopez did not identify any evidence to support a finding of future
persecution independent of his past persecution claims.
We understand Cante-Lopez's remaining contention to be
that, even if the IJ did find that Cante-Lopez had failed to show
that the harm he contended he would suffer in the future was not
severe enough to constitute persecution, we may still address the
merits of that finding by the IJ despite the fact that Petitioner
did not challenge that finding before the BIA. Cante-Lopez
contends that is so because the BIA affirmed the IJ without
opinion.
Cante-Lopez is right that we have not squarely held that
a failure to raise an issue to the BIA constitutes a failure to
exhaust the issue that deprives us of jurisdiction when the BIA
affirms the IJ without opinion. But, we have held that a failure
to exhaust is fatal in cases where the BIA has affirmed the IJ
without opinion. See Aguirre v. Holder, 728 F.3d 48, 55 (1st Cir.
2013); Jupiter v. Ashcroft, 396 F.3d 487, 490-91 (1st Cir. 2005);
Un v. Gonzales, 415 F.3d 205, 210-11 (1st Cir. 2005); Kigozi v.
Gonzales, No. 04-2090, 2005 WL 2170349, at *1 (1st Cir. Sept. 8,
2005); cf. Singh v. Gonzales, 413 F.3d 156, 160 n.3 (1st Cir. 2005)
(exercising jurisdiction over issues raised before the BIA and
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affirmed without opinion). And every other circuit to have
considered the issue has ruled similarly. See Zhong v. U.S. Dep't
of Just., 480 F.3d 104, 123 (2d Cir. 2007); Joseph v. Att'y. Gen.,
465 F.3d 123, 126 (3d Cir. 2006); Alyas v. Gonzales, 419 F.3d 756,
761-62 (8th Cir. 2005); Zara v. Ashcroft, 383 F.3d 927, 931 (9th
Cir. 2004); Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006);
cf. Atemnkeng v. Barr, 948 F.3d 231, 240-41 (4th Cir. 2020)
(exercising jurisdiction over claims "adequately" exhausted before
the BIA and affirmed without opinion); Lopez-Perez v. Garland, 35
F.4th 953, 956-57 (5th Cir. 2022) (same); Hassan v. Gonzales, 403
F.3d 429, 433 (6th Cir. 2005) (same); Pasha v. Gonzales, 433 F.3d
530, 534 (7th Cir. 2005) (similar). Nor do we see any reason to
conclude otherwise, given that the purpose of the exhaustion
requirement is to provide the agency with an opportunity to address
an issue in the first instance. Mazariegos-Paiz v. Holder, 734
F.3d 57, 62-63 (1st Cir. 2013). After all, the BIA's opportunity
to address an issue in the first instance is not a function of
whether it chooses to issue an opinion. It is a function of
whether the issue was presented to it for consideration.1 See id.
at 63; Singh, 413 F.3d at 160 n.3.
1Petitioner contends that the IJ and BIA also erred by relying
on Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), Matter of A-
B-, 28 I. & N. Dec. 199 (A.G. 2021), and Matter of L-E-A-, 27 I.
& N. Dec. 581 (A.G. 2019), three Attorney General decisions that
were vacated while this matter was pending before this court.
However, not one of these decisions is cited in the IJ's opinion.
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III.
For these reasons, the petition for review is dismissed.
Therefore, they do not form the basis of the IJ's ruling or the
BIA's affirmance, and they have no bearing on this case.
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