Jose Constanza-Martinez v. Eric H. Holder, Jr. , 739 F.3d 1100 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3534
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Jose David Constanza-Martinez
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 23, 2013
Filed: January 9, 2014
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Before BYE, SMITH, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Jose David Constanza-Martinez petitions for review of the Board of
Immigration Appeals (BIA) decision denying him withholding of removal. Having
jurisdiction under 8 U.S.C. § 1252, this court denies the petition.
I.
Constanza-Martinez, a former special forces member of the El Salvador
military, unlawfully entered the United States in 2000. The Department of Homeland
Security began removal proceedings in 2011. He conceded removability, petitioning
for withholding of removal. He believes that El Salvador is unable to control the
gangs that will recruit him and persecute him based on his “pro rule of law opinion.”
See 8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not remove an alien to
a country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.”); Menjivar v. Gonzales,
416 F.3d 918, 921 (8th Cir. 2005) (defining persecution as harm inflicted by the
government or by “persons or an organization that the government [is] unable or
unwilling to control”). The Immigration Judge (IJ) denied his petition. He appealed
to the BIA, which upheld the IJ. He appeals, arguing that the BIA erred by denying
him due process, in relying on a prior BIA decision, and in its factual conclusions.1
“This court reviews the BIA’s decision as the final agency action, but to the
extent the BIA adopts the findings of the IJ, this court reviews those findings as part
of the final agency action.” R.K.N. v. Holder, 701 F.3d 535, 537 (8th Cir. 2012).
“We review the BIA’s factual findings for substantial evidence and its legal
determinations de novo. . . . The BIA’s decision can be reversed only if the evidence
‘was so compelling that no reasonable factfinder could fail to find the requisite fear
of persecution.’” Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 433 (8th Cir. 2007),
quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The BIA’s
interpretation of immigration statutes is given substantial deference. Matul-
1
Constanza-Martinez also requested protection under Article III of the
Convention Against Torture. The BIA denied this request, and he expressly waives
appeal.
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Hernandez v. Holder, 685 F.3d 707, 711 (8th Cir. 2012). A due process claim in an
immigration proceeding is reviewed de novo. Zacarias-Velasquez, 509 F.3d at 435.
II.
“The Fifth Amendment’s due process clause mandates that removal hearings
be fundamentally fair.” Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004).
During Constanza-Martinez’s hearing, after a week’s notice to the parties, the IJ
introduced two documents into evidence: a USAID report on gangs in Central
America, and a State Department issue paper on gangs in El Salvador. Constanza-
Martinez argues that the introduction of these documents deprived him of a fair
hearing. Before 1996, the Immigration and Naturalization Act (INA) directed that IJs
“shall administer oaths, present and receive evidence, interrogate, examine, and
cross-examine the alien or witnesses.” 8 U.S.C. § 1252(b) (1994) (emphasis added).
The INA’s current language directs that IJs “shall administer oaths, receive evidence,
and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C.
§ 1229a(b). See also 8 C.F.R. §§ 1003.10(b) (restating 8 U.S.C. § 1229a), 1240.1(c)
(“The immigration judge shall receive and consider material and relevant evidence .
. . .”), 1240.7(a) (“The immigration judge may receive in evidence any oral or written
statement that is material and relevant to any issue in the case . . . .”).
The parties agree it is unclear why “present” was removed from the INA. Even
so, IJs maintain an affirmative duty to develop the record. “[U]nlike an Article III
judge, [an IJ] is not merely the fact finder and adjudicator but also has an obligation
to establish the record.” Al Khouri, 362 F.3d at 465, quoting Yang v. McElroy, 277
F.3d 158, 162 (2d Cir. 2002). “[U]nlike the trial judge, an administrative judge has
a well established affirmative duty to develop the record.” Al Khouri, 362 F.3d at 465,
quoting Charles H. Koch, Jr., Administrative Law and Practice § 5.25 (2d ed.
1997). Both the BIA and the IJ may take administrative notice of country conditions,
provided the “alien be given notice of the . . . intention to take administrative notice,
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and a sufficient opportunity to respond.” Francois v. INS, 283 F.3d 926, 933 (8th
Cir. 2002); Ogayonne v. Mukasey, 530 F.3d 514, 520 (7th Cir. 2008) (considering the
INA’s changed wording and concluding that “the IJ did not err in introducing these
particular documents because they merely stated commonly acknowledged facts that
were amenable to official notice”); Ming Shi Xue v. BIA, 439 F.3d 111, 118 (2d Cir.
2006) (“[T]he [Immigration and Naturalization] Service and the Immigration Judge
both have a role in introducing evidence into the record.”), quoting In re S-M-J, 21
I&N Dec. 722, 726 (BIA 1997).
To develop the record, the INA also gives IJs authority to “issue subpoenas for
the attendance of witnesses and presentation of evidence.” 8 U.S.C. § 1229a(b). An
IJ may issue a subpoena sua sponte. “An Immigration Judge may issue a subpoena
upon his or her own volition . . . .” 8 C.F.R § 1003.35(b). The IJ “may, upon his/her
own volition . . . issue subpoenas requiring the attendance of witnesses or for the
production of books, papers and other documentary evidence, or both.” 8 C.F.R §
1287.4(a). Although the IJ did not issue a subpoena in this case, Constanza-Martinez
argues that the IJ should have followed the “procedural safeguards” for a subpoena.
The IJ did not need to issue a subpoena in this case. The documents were available
and “amenable to official notice.” Ogayonne, 530 F.3d at 520.
The IJ provided Constanza-Martinez an opportunity to examine the documents
and respond to them. The IJ did not deprive him of a fundamentally fair hearing.
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III.
Constanza-Martinez argues that the evidence compels a conclusion that he will
be persecuted in El Salvador. He claims he will be recruited by gangs based on his
former military membership, yet that he will refuse to join due to his “pro rule of law”
political opinion. Assuming former military membership is a “social group” (or that
respect for the rule of law is a “political opinion”) protected by 8 U.S.C. §
1231(b)(3)(A), he must establish that the record compels a conclusion that he will be
persecuted. See Elias-Zacarias, 502 U.S. at 482-83 (requiring defendant “establish
that the record . . . compels the conclusion that he has a ‘well-founded fear’ that the
guerrillas will persecute him”); Khilan v. Holder, 557 F.3d 583, 585 (8th Cir. 2009)
(“[T]he applicant must show that the government condoned [persecution] or at least
demonstrated a complete helplessness to protect the victims.”), quoting Menjivar, 416
F.3d at 921; Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004) (allowing a
“specific, credible, and immediate” threat of death as evidence of persecution).
Constanza-Martinez fails to establish that the record compels the conclusion
that he will be persecuted at all. After leaving the military and living in El Salvador,
he was not harmed based on his former military membership. His brothers, who were
never in the military, refused to join a gang and were not harmed. He shows no
specific and immediate threat of future harm. Based on substantial evidence, the BIA
and the IJ found that El Salvador has repeatedly tried to prevent gang violence and
rehabilitate youth. Constanza-Martinez’s evidence describes the “mass incarceration
of gang members,” government policies leading to “the arrest and detention of high-
level gang leaders,” and “social investment [in] municipalities with high levels of
violence and exclusion.” No reasonable adjudicator would be compelled to find that
Constanza-Martinez has a well-founded fear of harm from gangs, or that the
government is completely helpless to protect him.
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Constanza-Martinez also argues that the BIA’s reliance on a prior immigration
case, Matter of S-E-G, 24 I&N Dec. 579 (BIA 2008), deprives him of an
individualized determination of eligibility for relief. See Prokopenko v. Ashcroft, 372
F.3d 941, 946 (8th Cir. 2004) (requiring individualized determinations in asylum
cases). The BIA references S-E-G only in a footnote, and then not for factual support.
The IJ relied on S-E-G only after considering Constanza-Martinez’s history at length
and concluding that he “has failed to meet his burden of proof to establish that it is
‘more likely than not’ that he would be persecuted in El Salvador.” After this
conclusion, the IJ cited S-E-G for support that recruitment by a gang lacks “the
required nexus” with government to constitute persecution. See Khilan, 557 F.3d at
585. The BIA and IJ based their decision on his individual circumstances and did not
err by citing precedent.
Constanza-Martinez fails to show that a reasonable adjudicator would be
compelled to conclude that he will be persecuted in El Salvador.
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The petition for review is denied.
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