Jose Garcia Garcia v. Eric Holder, Jr. ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
FILE NAME: 15A0261N.06
CASE NO. 14-3204
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSE LUIS GARCIA-GARCIA, )
FILED
) Apr 10, 2015
Petitioner, ) DEBORAH S. HUNT, Clerk
)
v. ) ON PETITION FOR REVIEW OF
) AN ORDER OF THE BOARD OF
ERIC HOLDER, JR., Attorney General, ) IMMIGRATION APPEALS
)
Respondent. )
)
Before: BATCHELDER, MOORE, and SUTTON, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Jose Luis Garcia-Garcia petitions this
court for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of
the denial of his motion to withhold removal. We DENY the petition for review.
I.
Garcia is a native of Guatemala who entered the United States without inspection on or
about January 1, 2000. He appeared before an immigration judge and conceded removability but
sought withholding of removal, claiming that he fears persecution if returned to Guatemala on
the basis of his membership in a persecuted social group, namely, former gang members. Garcia
claimed that because his former gang associates know him and because he has a distinguishing
gang tattoo (a tear drop under his eye), they or others will persecute him if he returns. He
testified at his hearing and produced a letter from his parents asserting that he was in a
Guatemalan gang.
The immigration judge denied withholding, concluding first that Garcia had failed to
persuade her that he is likely to be recognized or persecuted if returned to Guatemala. The
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immigration judge concluded as well that Garcia had failed to establish that he is not barred from
eligibility for withholding of removal because of involvement in serious nonpolitical crime as a
member of a gang in Guatemala. The BIA dismissed the appeal, finding that Garcia was barred
from eligibility for withholding, and also concluding that Garcia had failed to show a likelihood
of persecution or that he could not relocate to another part of Guatemala to avoid persecution.
He seeks review here.
II.
Garcia argues that the immigration judge and the BIA erred by finding that he had failed
to provide sufficient corroborating evidence to support withholding. Specifically, the
immigration judge found Garcia’s testimony “basically credible” but “too general” and “not
sufficiently detailed to sustain his burden without corroboration.” And the immigration judge
found the corroborating evidence “slim,” explaining that Garcia “provided no details concerning
his involvement with the gang even after questioned extensively by his attorney and the [c]ourt
on this issue”; “[h]e provided no details concerning his initiation”; “[h]e gave no information
essentially about what he did with the gangs except to say that they fought”; “[h]e provided no
information about how they fought or the results of the fights[,] even after asked repeatedly”; and
he “provided no details about who were the members of the leadership of the gang, where they
were located, how he knows them, [or] how he would be recognized.” Consequently, the
immigration judge, noting that she is forbidden from speculating, held that Garcia failed to
persuade her or produce sufficient proof that, upon return, he would likely be recognized or
persecuted.
Garcia appealed to the BIA, which dismissed the appeal, concluding (as an alternative
basis) that Garcia “ha[d] not provided the corroboration necessary to sustain his burden of
proof.” The BIA cited and relied on 8 U.S.C. § 1229a(c)(4)(B) and Urbina-Mejia v. Holder, 597
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F.3d 360, 368 (6th Cir. 2010), which the BIA described accurately, albeit somewhat awkwardly,
as “affirming the Immigration Judge’s determination that Urbina-Mejia did not provide sufficient
corroboration to meet his burden to prove that he would be more likely than not to suffer
persecution upon removal even where an expert witness testified.” The Urbina-Mejia opinion
itself goes one step further in its explanation, pointing out that “section 1252(b)(4) instructs that
we are prohibited from reversing the agency’s finding ‘with respect to the availability of
corroborating evidence . . . unless [we] find[] . . . that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.’” Id. (quoting 8 U.S.C. § 1252(b)(4)).
On appeal, Garcia argues that the BIA’s and immigration court’s decisions are in error
because the immigration judge never told him what corroborating evidence was missing or
allowed him to explain why he did not provide it, thus depriving him of due process. He relies
on the Ninth Circuit’s holding in Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“An
applicant must be given notice of the corroboration required, and an opportunity to either provide
that corroboration or explain why he cannot do so.” (footnote omitted)). While Garcia notes that
our opinion in Pulatov v. Holder, 516 F. App’x 455, 459 n.5 (6th Cir. 2013), cited Ren in a
footnote, he fails to mention that Pulatov also cited the Seventh Circuit’s disagreement in
Abraham v. Holder, 647 F.3d 626, 633 (7th Cir. 2011) (holding that 8 U.S.C. § 1158(b)(1)(B)(ii)
does not create an additional notice-and-opportunity requirement). More importantly, Pulatov,
516 F. App’x at 459 n.5, left this an “open question” because “that [lack-of-notice-and-
opportunity] argument was not presented to the BIA, and so ha[d] not been properly exhausted.”
Garcia also failed to raise this argument to the BIA and, therefore, failed to exhaust it and
preserve it for appeal. Id.; see also Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004).
Garcia argues as well that he presented sufficient evidence to compel the conclusion that
he would be persecuted upon his return to Guatemala, and that at the very least, he is entitled to a
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remand to permit the immigration judge to rule on this claim. But the immigration judge
explicitly held that Garcia had failed to carry his burden in this regard, and the BIA, while not
outright affirming the immigration judge’s ruling, thoroughly discussed it and explicitly stated
that if it were to reach this issue, it would affirm. Garcia’s claim is without merit.
Finally, the immigration judge held, and the BIA explicitly affirmed—and, indeed, based
its dismissal of Garcia’s appeal on this conclusion—that Garcia had failed to prove that he was
not barred from eligibility for withholding of removal because of his involvement in serious
nonpolitical criminal activity in Guatemala. Garcia admitted both that he had been involved in
gang fights that included the use of knives and beating people in the face, and that his gang
activity had had no political aspect. The record contains substantial evidence to support the
conclusion that Garcia is not eligible for withholding of removal.
III.
For the foregoing reasons, we DENY the petition for review.