Jhonny Garcia-Moctezuma v. Jefferson B. Sessions, III , 879 F.3d 863 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4433
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Jhonny Garcia-Moctezuma
Petitioner
v.
Jefferson B. Sessions, III, United States Attorney General
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 19, 2017
Filed: January 11, 2018
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Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG, 1 Judge.
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GOLDBERG, Judge.
Petitioner Jhonny Garcia-Moctezuma seeks review of a final order of removal
issued by the Board of Immigration Appeals (“BIA”). The BIA’s order dismissed
Garcia-Moctezuma’s appeal from the decision of the Immigration Judge (“IJ”) that
found him removable and denied his applications for withholding of removal and
for protection under the Convention Against Torture (“CAT”).
1
The Honorable Richard W. Goldberg, Senior Judge, United States Court of
International Trade, sitting by designation.
Garcia-Moctezuma alleges prior and future persecution and torture in Mexico
on account of his faith in the deity Santa Muerte. The IJ concluded that Garcia-
Moctezuma failed to establish a sufficient nexus between his faith and his
mistreatment in Mexico and also that he failed to establish a likelihood of torture if
removed to Mexico. After careful review of the decisions of the IJ and the BIA and
consideration of the parties’ briefs and oral argument, we deny Garcia-Moctezuma’s
petition for review.
BACKGROUND
Garcia-Moctezuma is a native and citizen of Mexico who first entered the U.S.
without authorization in 2001. On April 1, 2010, Garcia-Moctezuma was ordered
removed from the U.S. Garcia-Moctezuma testified that, upon his return to Mexico
in 2010, he began praying to Santa Muerte, a deity venerated primarily in Mexico.
Some Mexican government officials and other observers have associated worship of
Santa Muerte with criminal activity, specifically with membership in a drug cartel.
Garcia-Moctezuma testified that by 2012 he was a devotee of Santa Muerte,
prompting him to get two Santa Muerte-related tattoos on his body.
Again without authorization, Garcia-Moctezuma reentered the U.S. on
November 20, 2014 and was detained by Immigration and Customs Enforcement on
June 16, 2015. Upon finding that Garcia-Moctezuma had expressed a reasonable
fear of persecution in Mexico, an asylum officer referred Garcia-Moctezuma’s
removal case to an IJ.
Having violated a prior removal order, Garcia-Moctezuma was not eligible to
apply for asylum. 8 U.S.C. § 1231(a)(5). Therefore, in defense of removal, Garcia-
Moctezuma applied for withholding of removal, see 8 U.S.C. § 1231(b)(3), and CAT
protection, see 8 C.F.R. § 1208.16(c). Garcia-Moctezuma sought relief on the basis
of two beatings he sustained at the hands of Mexican law enforcement in 2014. In
March 2014, Mexican soldiers intercepted Garcia-Moctezuma on his way home,
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accused him of working for a drug cartel, and beat him on the head, stomach, and
back. Garcia-Moctezuma testified that the soldiers stated that his Santa Muerte
tattoos showed that he was associated with drug cartels.
In August 2014, Garcia-Moctezuma was passing by a cemetery on his way to
the store. Mexican federal police pulled Garcia-Moctezuma into the cemetery,
where they had several other men in custody on suspicion of drug trafficking.
Garcia-Moctezuma testified that the police told him that he was being detained
because he had been identified as a drug dealer by one of the other men in custody.
Garcia-Moctezuma denied any association with drug activity. Police then repeatedly
struck Garcia-Moctezuma with a piece of wood, placed a bag over his head, and
filled the bag with water, leading Garcia-Moctezuma to believe he would drown.
Police later pulled on Garcia-Moctezuma’s tongue with pliers, threatening to cut it
off, before letting him go.
Garcia-Moctezuma testified that he suffered only bruises from these two
encounters, but that he also began to have chronic lower back pain around the time
of the March 2014 incident.
In a September 18, 2015 decision, the IJ denied Garcia-Moctezuma’s
applications for relief. The IJ found Garcia-Moctezuma’s testimony credible,
including his statement that the March 2014 beating was expressly motivated by his
association with Santa Muerte. Nevertheless, the IJ ruled that withholding of
removal was not appropriate because Garcia-Moctezuma had established neither
prior persecution on account of a protected ground nor a clear probability of future
persecution. According to the IJ, the March 2014 beating was too “minor” to be
considered persecution and the August 2014 beating was insufficiently related to a
protected ground, Garcia-Moctezuma’s faith. The IJ also denied Garcia-
Moctezuma’s CAT claim, finding that he failed to establish that it is more likely than
not he would face torture in Mexico. Garcia-Moctezuma timely appealed to the BIA.
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On March 29, 2016, the BIA remanded, in part because the IJ had failed to
make a finding as to whether the March and August beatings constituted “past
persecution in the aggregate.” On remand, the IJ determined that the harm suffered
by Garcia-Moctezuma across the two beatings indeed rose to the level of
persecution. However, the IJ ruled that Garcia-Moctezuma still failed to establish a
sufficient nexus between his persecution and his faith. Accordingly, the IJ again
denied Garcia-Moctezuma’s applications for relief from removal. On November 21,
2016, the BIA affirmed the IJ’s decision and dismissed Moctezuma’s appeal. This
petition for review followed.
DISCUSSION
Garcia-Moctezuma’s petition presents three issues for our consideration: A)
if not waived by Garcia-Moctezuma, whether the IJ and BIA applied the correct
standard for determining whether persecution is sufficiently motivated by a
protected ground (the “nexus standard”); B) whether the IJ and BIA correctly
determined that Garcia-Moctezuma’s mistreatment in Mexico lacked a sufficient
nexus to his faith; and C) whether the IJ and BIA correctly determined that Garcia-
Moctezuma failed to establish the requisite likelihood of torture if he returns to
Mexico. For the reasons discussed below, we hold that Garcia-Moctezuma waived
any arguments related to the appropriate nexus standard. We also find that the IJ
and BIA reasonably denied Garcia-Moctezuma’s applications for relief from
removal.
A.
An alien’s removal must be withheld “if the Attorney General decides that the
alien’s life or freedom would be threatened” in the country to which they will be
returned “because of [one of the following protected grounds:] the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). To qualify for withholding of removal, “an alien [must]
demonstrate[] that the alien’s life or freedom would be threatened for a reason”
related to one of the protected grounds. 8 U.S.C. § 1231(b)(3)(C) (emphasis added).
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To qualify for asylum, an alien must show that a protected ground “was or
will be at least one central reason for persecuting the applicant.” 8 U.S.C. §
1158(b)(1)(B)(i) (emphasis added). In its Matter of C-T-L- decision, the BIA
thoroughly analyzed the text and history of the relevant statutory sections and
concluded that, despite the disparate language in the two provisions, the “one central
reason” nexus standard should be read to apply to both asylum and withholding of
removal applicants. 25 I. & N. Dec. 341, 343–348 (BIA 2010).
The IJ applied the “one central reason” nexus standard to Garcia-
Moctezuma’s withholding of removal application, inquiring whether Garcia-
Moctezuma’s association with Santa Muerte was “one central reason” for his
persecution. On appeal, Garcia-Moctezuma argues, for the first time, that the correct
nexus inquiry for his application is simply whether his religion is a reason for his
persecution.
Generally, this Court “will not consider an argument raised for the first time
on appeal.” Hartman v. Workman, 476 F.3d 633, 635 (8th Cir. 2007) (citation
omitted). This principle applies to our review of agency decisions, as “there is a
basic principle of administrative law that ‘[o]rdinarily an appellate court does not
give consideration to issues not raised below.’” Etchu–Njang v. Gonzales, 403 F.3d
577, 583 (8th Cir. 2005) (quoting Hormel v. Helvering, 312 U.S. 552, 556, 61 S. Ct.
719, 85 L. Ed. 1037 (1941)).2
2
Prior decisions of this Court are mixed as to whether the failure to raise an
issue is also a jurisdictional matter or if it “simply raises the non-jurisdictional
question whether review of that issue is precluded by the doctrine of administrative
exhaustion.” See Mambwe v. Holder, 572 F.3d 540, 550 (8th Cir. 2009) (quoting
Zine v. Mukasey, 517 F.3d 535, 539–40 (8th Cir. 2008)). Because Garcia-
Moctezuma’s waiver disposes of the issue, we decline to address the jurisdictional
question here.
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Garcia-Moctezuma clearly neglected to raise the nexus standard issue below.
The IJ applied the “one central reason” standard in each of its two decisions.
Likewise, the BIA directly cited to Matter of C-T-L- not only in its final decision,
but also in its earlier decision remanding to the IJ. Accordingly, Garcia-Moctezuma
had ample opportunity to request that the IJ apply a different nexus standard or to
request that the BIA revisit its decision in Matter of C-T-L-. Instead, Garcia-
Moctezuma himself applied the “one central reason” standard—the standard he now
argues is inapplicable—at all times before the IJ and the BIA.
Enforcing the doctrine of waiver is particularly appropriate here, where “the
administrative proceedings before both the Immigration Court and the BIA were
adversarial, and [Garcia-Moctezuma] was represented by counsel.” See Agha v.
Holder, 743 F.3d 609, 616 (8th Cir. 2014). While this Court “has the discretion to
consider an issue for the first time on appeal . . . when the argument involves a purely
legal issue,” Gap, Inc. v. GK Dev., Inc., 843 F.3d 744, 748–49 (8th Cir. 2016), we
decline to exercise that discretion here. As an initial matter, Garcia-Moctezuma
makes no attempt to explain or excuse his failure to raise the issue prior to this
appeal. Moreover, the record supports a finding that Garcia-Moctezuma’s
withholding of removal application would have failed under either nexus standard.
See infra note 6. Accordingly, it would be academic, and thus imprudent, to take up
this legal issue in this particular case.3
B.
We must next determine whether, as Garcia-Moctezuma insists, the IJ and
BIA erred in finding that Garcia-Moctezuma’s worship of Santa Muerte was not
3
Garcia-Moctezuma urges this Court to adopt the position of a recent Ninth
Circuit decision, which held that the BIA’s statutory construction in Matter of
C-T-L- was erroneous and that the appropriate nexus standard in withholding of
removal cases is the less stringent “a reason” standard. See Barajas-Romero v.
Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). In light of Garcia-Moctezuma’s
repeated and unexcused waiver of this issue, we take no position on the relative
merits of the respective interpretations in Matter of C-T-L- and Barajas-Romero.
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“one central reason” for his mistreatment by Mexican police in August 2014.4 Under
the “one central reason” nexus standard, a protected ground need not be the sole
reason for persecution, but the protected ground cannot be “incidental or tangential
to the persecutor’s motivation.” Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208, 213
(BIA 2007) (citation omitted).
In its June 2, 2016 decision, the IJ determined that Garcia-Moctezuma’s
August 2014 beating “was on account of a non-protected ground, namely being
suspected of selling drugs.” Consequently, the IJ and BIA denied Garcia-
Moctezuma’s application for withholding of removal. “[W]e review the BIA’s
decision to deny withholding of removal under the deferential substantial evidence
standard.” Zine, 517 F.3d at 541 (citation omitted). 5 Thus, we will reverse only if
we determine that “a reasonable factfinder would have to conclude” that Garcia-
Moctezuma’s faith actually and sufficiently motivated his persecutors’ actions. See
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 117 L. Ed. 38 (1992)
(emphasis added).
The IJ credited Garcia-Moctezuma’s testimony that, during the August 2014
beating, the Mexican federal police mentioned his tattoos as a reason to believe he
was involved with drug cartels. Further, the IJ considered record evidence showing
a stereotype that Santa Muerte followers are also drug cartel members. However,
per Garcia-Moctezuma’s own testimony, the police referenced the tattoos only after
detaining Garcia-Moctezuma and made no mention of Santa Muerte. As a result,
4
The IJ found that the March and August 2014 beatings constituted
persecution in the aggregate. Additionally, the IJ determined that the March 2014
beating was inflicted on account of Garcia-Moctezuma’s religious belief. However,
because the March 2014 beating, alone, was too minor to constitute persecution, the
IJ concluded that Garcia-Moctezuma must also show a nexus between his faith and
the August 2014 beating. We agree.
5
While this Court generally limits its review to the decision of the BIA, we
may also review the decision of the IJ to the extent that the BIA adopts or defers to
it. See Alanwoko v. Mukasey, 538 F.3d 908, 912 (8th Cir. 2008) (citation omitted).
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the IJ ruled that, while Garcia-Moctezuma’s “tattoos were a tangential and
superficial reason for his detention and subsequent harm,” he “has not shown that
the persecutors were aware that he had religious tattoos or had detained or beaten
him because of [the tattoos’] religious nature.”6
The BIA, “[c]onsidering the evidence on the whole, [] discern[ed] no clear
error” in the IJ’s findings. In turn, we find that substantial evidence supported the
IJ’s conclusion, adopted by the BIA, that Garcia-Moctezuma’s worship of Santa
Muerte was not “one central reason” for his persecution.
C.
We also discern no error in the denial of Garcia-Moctezuma’s application for
CAT protection. Under the CAT, an alien can avoid removal if the alien can show
that “it is more likely than not that he or she would be tortured if removed.” 8 C.F.R.
§ 1208.16(c)(2). Unlike withholding of removal, protection under the CAT does not
depend on a showing that the anticipated torture would be motivated by a protected
ground. See 8 C.F.R. § 1208.18(a)(1) (defining “torture”).
The IJ found that the August 2014 beating constituted torture. Nevertheless,
the IJ ultimately determined that this past incident of torture did not indicate that
Garcia-Moctezuma would more likely than not be tortured in the future. To support
this conclusion, the IJ reasoned that a single—and, according to Garcia-Moctezuma,
false—accusation of selling drugs was unlikely to happen again. The IJ also looked
to other evidence in the record, noting that country condition reports reflect that the
Santa Muerte faith is growing and that the Mexican government, “while stereotyping
the followers of Santa Muerte, does not acquiesce in the torture of its Santa Muerte
6
In other words, while the IJ determined that the tattoos were “a tangential
and superficial reason” for the August 2014 beating, the IJ concluded that Garcia-
Moctezuma’s faith was not even a reason, let alone a central reason, for his
mistreatment. Therefore, Garcia-Moctezuma’s application for withholding of
removal likely would have failed under either nexus standard.
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worshipping citizens.” Similarly, statements by the Catholic Church that worship of
Santa Muerte “is anathema to the Catholic religion” were insufficient to persuade
the IJ that Garcia-Moctezuma would more than likely face torture upon return to
Mexico.
For its part, in dismissing Garcia-Moctezuma’s appeal, the BIA cited the
Mexico 2013 International Religious Freedom Report finding that there are no
reports of societal abuses or discrimination based on religious affiliation, beliefs or
practice in Mexico. The BIA also noted Garcia-Moctezuma’s testimony that “he has
friends [in Mexico] who are devoted to Santa Muerte and they have not been
harmed.” In sum, substantial evidence supported the denial of Garcia-Moctezuma’s
application for CAT protection.
CONCLUSION
For the foregoing reasons, we deny Garcia-Moctezuma’ petition for review.
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