Miguel Guillen v. Merrick B. Garland ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0406n.06
No. 20-3580
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 26, 2021
MIGUEL ANGEL GUILLEN, )
DEBORAH S. HUNT, Clerk
)
Petitioner, )
)
ON PETITION FOR REVIEW FROM
v. )
THE UNITED STATES BOARD OF
)
IMMIGRATION APPEALS
MERRICK B. GARLAND, Attorney )
General, )
OPINION
)
Respondent. )
BEFORE: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Miguel Guillen was a soldier in the El Salvadoran
Army from 1983 to 1985, during which time the army perpetrated numerous human rights abuses
on guerillas and civilians. When he applied for asylum in the United States, an immigration judge
(“IJ”) and the Board of Immigration Appeals concluded that Guillen was barred from relief
because he had failed to satisfy his burden to show that he had not participated in the human rights
abuses. Guillen appeals, arguing that the immigration judge erred in shifting the burden to him
before the Government had put sufficient evidence in the record to show a nexus between his
conduct and the abuses as well as knowledge of the abuses. Because we conclude that Guillen has
failed to exhaust his arguments, we DENY the petition for review.
No. 20-3580, Guillen v. Garland
I. FACTUAL BACKROUND
El Salvador endured a civil war from 1980 to 1992. During this conflict, the El Salvadoran
Army battled several factions of guerillas and perpetrated significant human rights abuses.
The El Salvadoran Army conducted “zone killings” and “sweeps” from 1980 to 1983 to keep
civilians from supporting the guerillas. Subsequently, “[f]rom 1984, the use of terror tactics by
the military—indiscriminate killings and extrajudicial executions of prisoners or suspected guerilla
sympathizers—became more selective, but aerial bombing escalated sharply and illegal detentions
and torture continued to be widespread.”
Guillen joined the El Salvadoran Army in March 1983; he testified that he was enlisted
unwillingly. He left the army in January of 1985. Guillen was in the second company of the
Battalion Canas,1 which was in the Fifth Brigade, and he served in the San Vicente area. He was
trained to infiltrate guerilla camps and to obtain information. Guillen reported this information to
his colonel but claims he did not know what his colonel did with the information. Guillen was
aware that the army attacked the guerillas based on the information he provided but testified that
he had never witnessed his battalion attack civilians or commit atrocities against civilians. He left
the army in 1985, after his company disbanded. The guerillas apparently identified Guillen and
visited his home while searching for him. When they did not find Guillen there, they killed his 13-
year-old brother.
Guillen arrived in the United States in 1987. He filed his first asylum application in
October 1988, his second application in 1993, and his third application in 1995. In 2001, he filed
for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act
(NACARA), Pub. L. No. 105-100, § 203(a)(1), 111 Stat. 2160, 2197–98 (1997). USCIS
1
The battalion’s name is spelled variously “Cannas” and “Canas” throughout the administrative record.
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determined in 2006 that the Immigration and Naturalization Act’s persecutor bar, 8 U.S.C.
§ 240A(c)(5), might apply to Guillen’s petition and referred the case to an IJ. Guillen then filed
an amended application for cancellation of removal under NACARA in 2011, which the
Government opposed based on USCIS’s determination concerning the persecutor bar. The IJ,
Judge Pazar, held a hearing in 2012. During his testimony, Guillen was inconsistent about what
happened to guerillas after battles. Among other things, Guillen appeared to contradict himself
about whether the army took guerillas as prisoners.
The Government submitted a database of human rights abuses compiled by El Rescate, an
NGO. According to this database, there were six specific human rights violations—five captures
of individuals and one assault—committed in the San Vicente area during the time Guillen was in
the El Salvadoran army. Of these six, only two are specifically attributed to Battalion Canas.
There is no information in the record about how Guillen’s conduct might or might not have
facilitated any of these incidents.
Judge Pazar found Guillen to be not credible. He noted that Guillen had been unresponsive
to questioning by the Government and the Court. IJ Pazar highlighted Guillen’s inconsistent
testimony about the treatment of guerillas and civilians by the army and found that some of his
assertions were implausible. The IJ concluded that Guillen’s testimony could be “an attempt to
distance himself as well as his battalion from any persecutory involvement with guerillas . . . .”
These inconsistencies were “central” to Guillen’s testimony and justified an adverse credibility
finding.
Judge Pazar also concluded that the Government had presented enough information
supporting Guillen’s possible participation in persecution to shift the burden to Guillen to
demonstrate by a preponderance of the evidence that the persecutor bar did not apply. But IJ Pazar
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noted that “[t]he majority of the incidents listed either did not occur in San Vicente or occurred
after Respondent left the army. Also, the incidents that did occur while Respondent was in the
Canas Battalion do not list the specific sites of the incidents.”
Judge Pazar determined that the evidence submitted by the Government supported the
conclusion that some individuals in the Fifth Brigade (which contained 3,600 people) and Battalion
Canas (which contained 1,200 people) committed human rights abuses during the time of Guillen’s
service. But he also determined that nothing in the record connected Guillen’s actions to those
abuses. Under Diaz-Zanatta v. Holder, 558 F.3d 450 (6th Cir. 2009), IJ Pazar found that there
was no nexus between Guillen’s information-gathering activities and any of the specific atrocities
the Government had presented, although his analysis in places relied on Guillen’s non-credible
testimony. Judge Pazar also determined that Guillen lacked scienter. Here, too, the IJ relied on
Guillen’s testimony, which he had previously concluded was not credible. In sum, IJ Pazar
concluded that although the burden had shifted to Guillen, the persecutor bar could not apply
because the record did not contain evidence establishing the requisite nexus and scienter required
under Diaz-Zanatta.
The Government appealed and the BIA remanded. The BIA concluded that the
Government, by providing evidence that Guillen may be subject to the persecutor bar, had shifted
the burden to Guillen to demonstrate that he was not subject to it. In a footnote, the BIA stated
that on appeal, Guillen had not contested the adverse credibility finding and did not “specifically
address” the IJ’s conclusions about the burden-shifting framework. It noted that the IJ Pazar had
relied almost exclusively on Guillen’s non-credible testimony to show that he had met his burden
in defeating the persecutor bar. The BIA remanded for further explanation from Judge Pazar as to
how Guillen could meet his burden absent credible testimony.
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On remand, the case was reassigned to IJ Holt due to IJ Pazar’s retirement. Judge Holt
held an additional hearing, at which she declined to reopen the issue of Guillen’s credibility. But
she allowed additional testimony from Guillen and his wife. Guillen testified about the attempts
he had made to obtain a letter or testimony from his sergeant. Guillen’s wife testified that Guillen
had told her he had not participated in any human rights abuses.
In Judge Holt’s subsequent opinion, she held that the law of the case doctrine applied to
Judge Pazar’s adverse credibility determination, and that in any event Guillen had not challenged
the finding before her or the BIA. IJ Holt agreed that the burden had shifted to Guillen. In her
view, even with the additional evidence from the hearing, Guillen failed to show by a
preponderance that the persecutor bar did not apply and therefore did not satisfy his burden. The
BIA affirmed. This appeal followed.
II. ANALYSIS
A. Standard of Review
The BIA affirmed IJ Holt and added additional commentary. Accordingly, we review IJ
Holt’s decision “as supplemented by the BIA, as the final administrative order.” Ceraj v. Mukasey,
511 F.3d 583, 588 (6th Cir. 2007). We apply the “substantial evidence” standard to the factual
findings of the IJ and overturn them “only if ‘the evidence not only supports [reversal], but compels
it.’” Yousif v. Lynch, 796 F.3d 622, 628 (6th Cir. 2015) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992)) (emphasis in Elias-Zacarias) (alteration in Yousif). We review questions of
law de novo. Id. In doing so, we “‘defer to the [IJ]’s reasonable interpretations of the INA.’”
Diaz-Zanatta, 558 F.3d at 454 (quoting Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006))
(alteration in Diaz-Zanatta). Law of the case determinations are reviewed for abuse of discretion.
United States v. Cunningham, 679 F.3d 355, 374 (6th Cir. 2012).
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B. Discussion
A grant of asylum or withholding of removal is impermissible for a person who “ordered,
incited, assisted, or otherwise participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1158(b)(2)(A)(i) (asylum); see also 8 U.S.C. § 1231(b)(3)(B)(i) (withholding of removal)
(similar language). Once the IJ has determined that the persecutor bar might apply, the burden
shifts to the alien to demonstrate that it does not. 8 C.F.R. § 1240.8(d) (“If the evidence indicates
that one or more of the grounds for mandatory denial of the application for relief may apply, the
alien shall have the burden of proving by a preponderance of the evidence that such grounds do
not apply.”).
Circuit courts, including our own, have imposed additional requirements for the persecutor
bar to apply. The applicant “must have done more than simply associate with persecutors; there
must have been some nexus between the alien’s actions and the persecution of others, such that
the alien can fairly be characterized as having actually assisted or otherwise participated in that
persecution.” Diaz-Zanatta, 558 F.3d at 455. This nexus must be more than “tangential.” Id. at
458. Second, if there is a nexus, the applicant “must have acted with scienter; the alien must have
had some level of prior or contemporaneous knowledge that the persecution was being conducted.”
Id. at 455. Once the persecutor bar is invoked, “the asylum petitioner bears the burden of
demonstrating that the persecution bar does not apply to her.” Id. at 458. But “[t]he mere fact that
[the applicant] may be associated with an enterprise that engages in persecution is insufficient by
itself to trigger the effects of the persecutor bar.” Id. at 456–57 (quoting Gao v. United States Att’y
Gen., 500 F.3d 93, 99 (2d Cir. 2007)).
On appeal, Guillen argues that IJ Holt erred by applying the law of the case doctrine to IJ
Pazar’s adverse credibility finding but not to his conclusion that the persecutor bar did not apply
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to Guillen under Diaz-Zanatta. He also argues that the persecutor bar, properly applied, requires
the Government to present a prima facie case that the nexus and scienter requirements are met
before the burden shifts to the applicant. The Government argues that we lack jurisdiction over
this appeal under 8 U.S.C. § 1252(d)(1) because Guillen failed to exhaust all of his arguments
before the BIA. It contends that Guillen waived the argument concerning Judge Pazar’s adverse
credibility finding by not raising it in his opening brief, and that he failed to raise the law of the
case argument before either the Board or Judge Holt. The Government also argues that Guillen
did not raise the burden-shifting issue with the BIA or with IJ Holt on remand. In reply, Guillen
points to several places in the record, starting in 2011, where he contends the burden-shifting issue
has been raised, and he argues that the BIA waived the exhaustion requirement by sua sponte
raising the burden-shifting issue when it remanded to IJ Holt.
“The purpose of Section § 1252(d)(1)’s exhaustion requirement is (1) to ‘ensure that . . .
the agency responsible for construing and applying the immigration laws and implementing
regulations . . . has had a full opportunity to consider a petitioner’s claims.” Ramani v. Ashcroft,
378 F.3d 554, 559 (6th Cir. 2004) (quoting Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir.
2004)). Failure to exhaust in this context renders the claims unreviewable by this court. Id. at
559–60. Exhaustion requires that each claim be presented to the BIA with “precision.” Cuevas-
Nuno v. Barr, 969 F.3d 331, 334 (6th Cir. 2020). However, where the BIA raises an issue sua
sponte, “the BIA’s action waives that issue’s exhaustion requirements.” Khalili v. Holder, 557
F.3d 429, 435 (6th Cir. 2009). To raise the issue sua sponte, the BIA must have “addressed the
merits of the issue” through either explicitly considering the merits or summarily affirming the
IJ’s decision. Id. at 434–35; see Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005).
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With respect to Guillen’s arguments about burden shifting and the law of the case doctrine,
the BIA has done neither. The BIA issued its own opinion affirming IJ Holt’s determinations, and
Guillen did not raise his arguments in that appeal. Guillen’s appeal brief consisted of one
paragraph of argument, which asserted that IJ Holt had erred in applying the persecutor bar but
raised no specific arguments about the burden-shifting framework or the law of the case doctrine.
Guillen points to the BIA’s footnote in its opinion remanding IJ Pazar’s decision, contending that
because the BIA observed that Guillen had not challenged the shifting of the burden to him, it sua
sponte addressed the merits of the claim. But the BIA simply noted that Guillen had not challenged
IJ Pazar’s determination that the burden had shifted to Guillen once it was possible that the
persecutor bar applied. In other words, the BIA’s discussion of the issue is entirely distinct from
the issue Guillen raises on appeal, which concerns “the prima facie evidentiary requirement to
trigger the burden shift to the applicant . . .” and the BIA has not “addressed the merits of [that]
issue.” Khalili, 557 F.3d at 434–35.
Guillen also cites earlier record evidence, but this too is unavailing. In 2011, Guillen
contended that his mere membership in the army was not sufficient to trigger the persecutor bar
and that there was no nexus between his conduct and any persecution. Likewise, he argued in his
motion for summary affirmance of IJ Pazar’s ruling that the evidence in the record was insufficient
for the persecutor bar to apply. Neither of these amounts to making the argument that the
Government must make a prima facie case before the burden shifts to the applicant. And although
there was discussion of this issue before IJ Pazar during the 2012 hearing, Guillen has never
squarely presented this issue to the BIA.
Guillen’s arguments below concerning the burden-shifting framework of the persecutor bar
and the law of the case doctrine are therefore not specific enough to be considered exhausted.
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III. CONCLUSION
Because we conclude that Guillen has not exhausted his claims, we DENY his petition for
review.
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