Flavio Pacheco-Moran v. Merrick B. Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3779
No. 22-2383
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Flavio Pacheco-Moran
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, 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: February 14, 2023
Filed: June 5, 2023
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
Flavio Pacheco-Moran, a forty-seven-year-old native and citizen of Mexico,
first entered the United States in 1991 and most recently in 1996 without inspection.
The Department of Homeland Security (“DHS”) initiated removal proceedings in
January 2013. Pacheco-Moran conceded removability and applied for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”),
claiming past persecution and a well-founded fear of future persecution and torture
in Mexico because of his membership in two Particular Social Groups (“PSGs”),
“Married Homosexual Men” and “Homosexual Men in Mexico.” More than five
years later, after evidentiary hearings but before Pacheco-Moran applied to the U.S.
Citizenship and Immigration Services for a U-visa, the Immigration Judge (“IJ”)
denied Pacheco-Moran’s motion for a continuance to file a U-visa application. Then,
in a lengthy Decision and Memorandum, the IJ denied his application for asylum,
withholding of removal, and CAT relief on the merits. The Board of Immigration
Appeals (“BIA”) dismissed Pacheco-Moran’s administrative appeal in a November
2021 opinion and denied his motion to reconsider in June 2022. Pacheco-Moran
petitions for review of both BIA orders. We deny the petitions for review.
I. Background
To be eligible for asylum, an applicant must show that he is a refugee, defined
in the Immigration and Nationality Act as a person unable or unwilling to return to
his native country due to past persecution or a well-founded fear of future persecution
“on account of race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i) (emphasis
added). The INA also provides that the asylum applicant must “demonstrate[] by
clear and convincing evidence that the application has been filed within one year after
the alien’s arrival in the United States.” § 1158(a)(2)(B). Pacheco-Moran’s last
arrival was in 1996, more than sixteen years prior to the removal proceedings. He
had not applied for asylum. The INA provides that an application may be considered
if the alien satisfies the Attorney General of “either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing.” § 1158(a)(2)(D).
At an initial hearing in April 2013, the IJ asked Pacheco-Moran’s attorney if
Pacheco-Moran is “seeking any sort of a U visa.” See generally Islas-Saldana v.
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Garland, 59 F.4th 927 (8th Cir. 2023). Counsel responded that Pacheco-Moran was
a victim of a qualifying 1996 felony assault crime in Compton, California. Counsel
was “having difficulties” obtaining the required law enforcement certification. The
IJ scheduled the next hearing for September 9, 2013 and directed Pacheco-Moran to
file by that day a Form I-589 application for asylum and other relief, adding that “I
would expect . . . a brief . . . defining the basis under which [he] is seeking relief. For
example, if it’s under a particular social group, to define the particular social group,
and then also analyze the relevant case law.”
On September 9, Pacheco-Moran filed a Memorandum of Law stating that he
“is eligible for asylum and withholding of removal on the basis of his membership in
a particular social group as a married homosexual male.” However, prior to an
evidentiary hearing almost five years later, he filed a Brief arguing that he “is a
member of the [PSG] -- ‘Homosexual Men in Mexico,’” and that his marriage in 2013
is a “changed circumstance” that excuses his failure to file an asylum application
within one year of his arrival in the United States in 1996. To Pacheco-Moran’s
benefit, the IJ treated these inconsistent filings as articulating two separate PSGs and
proceeded to consider both. The IJ found that both married homosexual men and
homosexual men in Mexico are valid PSGs.
At the evidentiary hearing, Pacheco-Moran testified regarding mistreatment
and harassment he suffered as a teenage boy in Mexico because he was recognized
to be homosexual, testimony the IJ found credible. Though his parents separated,
Pacheco-Moran’s father “yelled at him and hit him with a belt almost every day” and
once, after he locked himself in a bathroom, “started pouring water on [him] with a
hose . . . [and] said he would pour water on [him] until he drown[ed].” Pacheco-
Moran testified he was made fun of and called a “‘fag,’ ‘queer,’ and ‘homosexual.’”
Once, bigger classmates “asked him if he was a faggot,” “threw [a] pot of food out
of his hands,” “circled him,” and “hit him.” He testified his nose bleeds regularly
from these incidents though a doctor said his nose bleeds because of the climate. He
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considered suicide when he was eleven or twelve years old. He was last assaulted
when he was around thirteen or fourteen.
Pacheco-Moran left Mexico in 1991 and arrived in the U.S. at age 17. He came
out as a gay man when he moved to Minnesota in 2000. He met his husband Edgar,
a native of Mexico City, in November 2007. They married in August 2013 and
participate in LGBT events in Minnesota, including the gay pride parade. His sister
in Mexico told him that a classmate was murdered in 2016. Pacheco-Moran testified
that “[e]verybody says it’s because he was gay, but his family never said why he was
killed.” Pacheco-Moran fears returning to Mexico because “it is not acceptable to be
homosexual there.” “There is a law that permits homosexual marriage, but it’s not
acceptable in society.” He has sought phychological help since the removal
proceedings began because of the stress and fear of what might happen if he returns
to Mexico.
II. Discussion
Like the IJ, we will separately analyze the two PSGs because the one-year
asylum bar in 8 U.S.C. § 1158(a)(2) impacts the two groups differently. We review
the BIA’s determinations “under the deferential substantial evidence standard.”
Cambara-Cambara v. Lynch, 837 F.3d 822, 826 (8th Cir. 2016). The evidence
presented “must be so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
A. Married Homosexual Men.
1. Asylum. The IJ ruled that § 1158(a)(2)(B) does not bar Pacheco-Moran’s
asylum claim based on his membership in this PSG because he was not a married
homosexual male until his August 12, 2013 marriage one month before he filed his
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asylum application. The IJ found the marriage was a changed circumstance that
materially affected eligibility for asylum based on this PSG.
Turning to the merits of this claim, the IJ noted that Pacheco-Moran has not
alleged harm or persecution after his marriage and therefore is not entitled to a
rebuttable presumption that his fear of future persecution is well-founded. The IJ
found that Pacheco-Moran “does not have an objective fear of future persecution on
account of his membership” in this PSG. The IJ found that Pacheco-Moran “did not
submit evidence that suggested that married homosexual men face additional or
different harms from homosexual men or members of the LGBT community which
would rise to the level of persecution.” Although he submitted numerous reports of
incidents that “may suggest a practice of discrimination or a societal disapproval of
LGBT individuals, they do not rise to the level of persecution. Less severe harm such
as discrimination or disadvantage on the basis of a protected characteristic does not
ordinarily amount to persecution,” correctly citing Fisher v. INS, 291 F.3d 491, 497-
98 (8th Cir. 2002). The IJ also found that Pacheco-Moran could reasonably relocate
to Mexico City, where his spouse is from, a place where there is ample evidence a
married homosexual would not suffer persecution. Concluding that Pacheco-Moran
“does not cite sufficient evidence to show that married homosexual men in Mexico
are persecuted because of their membership in this group,” the BIA upheld the IJ’s
denial of asylum.
On appeal, Pacheco-Moran argues “[c]ountry conditions establish that the
viciously homophobic environment in Mexico should satisfy the 10% likelihood that
is necessary for future persecution on a protected ground to be adequate for granting
asylum.” We review factual determinations, including “the ultimate question of past
persecution or well-founded fear of future persecution,” under the substantial
evidence standard. He v. Garland, 24 F.4th 1220, 1224 (8th Cir. 2022).
“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
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“Persecution is an extreme concept that does not encompass low-level intimidation
and harassment.” Ladyha v. Holder, 588 F.3d 574, 578 (8th Cir. 2009) (quotation
omitted). Here, substantial evidence supports the IJ and BIA finding that Pacheco-
Moran failed to demonstrate a well-founded fear of persecution based on membership
in this PSG. “[S]lurs and harassment from private individuals . . . do not constitute
persecution.” Fisher, 291 F.3d at 497. Pacheco-Moran failed even to cite, much less
distinguish, these controlling Eighth Circuit cases.
2. Withholding of Removal. To be eligible for withholding of removal under
8 U.S.C. § 1231(b)(3)(A), Pacheco-Moran must establish a “clear probability” that
his “life or freedom would be threatened” in Mexico because of his membership in
this PSG. Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir. 2005). The IJ and the BIA
found, consistent with controlling Eighth Circuit precedent, that Pacheco-Moran did
not satisfy this clear probability standard because he did not meet the lower statutory
burden of proof required for asylum. See, e.g., Tojin-Tiu v. Garland, 33 F.4th 1020,
1024 (8th Cir. 2022). We agree. On appeal, Pacheco-Moran argues this was a
“false[] finding,” citing cases from two other circuits. Whatever the rule in other
circuits, we must follow our binding circuit precedent.
3. CAT Relief. An applicant is eligible for CAT relief if he proves that “it is
more likely than not that he . . . would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2). Separate analysis of a CAT claim is required
only when there is evidence that the person might be tortured for reasons unrelated
to his claims for asylum and withholding of removal. See Alemu, 403 F.3d at 576.
The IJ found that Pacheco-Moran had not presented evidence of a claim for relief
unrelated to his underlying claim for asylum and withholding of removal and
therefore denied his application for relief under the CAT. We agree. On appeal,
Pacheco-Moran simply repeats his factual arguments in support of asylum and
withholding of removal and argues he “merits protection under CAT.”
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B. Homosexual Men in Mexico
1. Asylum. The IJ found that Pacheco-Moran failed to show changed
circumstances or extraordinary circumstances and therefore the one-year bar
precluded the grant of asylum under this PSG. Taking up the three circumstances on
which Pacheco-Moran relied, the IJ found, first, that his marriage to Edgar was not
a changed circumstance that materially affected his eligibility for asylum because it
did not change his decades-long membership in the group or affect his eligibility for
asylum based on this group. Second, the murder of his friend Miguel did not create
a new ground for relief and occurred twenty years after Pacheco-Moran’s most recent
arrival in the United States. Third, Pacheco-Moran’s mental health and recent PTSD
diagnosis were not extraordinary circumstances that prevented timely filing given that
he worked in the United States from 1996 until he filed his asylum application. The
BIA upheld these findings.
Pacheco-Moran argues the BIA erred in finding he did not meet one of the
exceptions to the one-year bar in 8 U.S.C. § 1158(a)(2)(B). The government responds
that § 1158(a)(3) deprives us of jurisdiction to review this issue. That statute
provides that “[n]o court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).” There is strong Eighth Circuit support for
this argument. See Goromou v. Holder, 721 F.3d 569 (8th Cir. 2013); Manani v.
Filip, 552 F.3d 894, 899-901 (8th Cir. 2009). The IJ’s finding that Pacheco-Moran
did not demonstrate extraordinary or changed circumstances is an unreviewable
discretionary judgment of the Attorney General. See Goromou, 721 F.3d at 579-80.
Pacheco-Moran argues we should reject these cases and follow contrary rulings
of the Ninth Circuit, which of course our panel may not do. Pacheco-Moran also
argues the Supreme Court’s recent decision in Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1068 (2020), which stated that the term “questions of law” in 8 U.S.C.
§ 1252(a)(2)(D) “includes the application of a legal standard to undisputed or
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established facts,” governs this issue. Guerrero-Lasprilla did not involve the one-year
time bar in § 1158(a)(2), and Pacheco-Moran’s argument on its face would strip
§ 1158(a)(3) of all effect, contrary to established principles of statutory construction.
See Sharif v. Barr, 965 F.3d 612, 620 (8th Cir. 2020) (“no administrative case can be
decided without applying some law to some facts”). As in Sharif, “we refuse to adopt
a reading of § 1252(a)(2)(D) that vitiates [§ 1158(a)(3)].” Id. (cleaned up).
Alternatively, if we do have jurisdiction to review the one-year-bar issue, we agree
with the BIA’s determination for the reasons stated in the IJ and BIA opinions.
2. Withholding of Removal. Having found the asylum claim barred, the IJ
turned to the withholding of removal claim based on this PSG. “Even cumulatively,”
the IJ ruled, “the harm [Pacheco-Moran] suffered does not amount to past
persecution. See Barillas-Mendez v. Lynch, 790 F.3d 787 (8th Cir. 2015).” On
appeal, Pacheco-Moran argued the IJ failed to consider mental and emotional harm
he experienced in Mexico. The BIA responded, citing 8 C.F.R. § 1208.13(b)(1):
As the [IJ] found, however, even if this constitutes persecution
under the Act, the [DHS] rebutted the presumption that the respondent
has a clear probability of persecution today by showing that he ‘could
avoid future persecution by relocating to another part’ of Mexico and
that . . . ‘it would be reasonable to expect’ him to do so.
Pacheco-Moran argues “internal relocation is not reasonable because country
conditions as well as credible testimony [of anti-gay hate crimes committed not far
from Mexico City] establish the [he] would face other serious harm in the place of
suggested relocation.” Under the deferential substantial evidence standard, evidence
of “general, widespread discrimination” does not trump the BIA’s finding, based on
specific facts in the administrative record, that Pacheco-Moran could avoid future
persecution by reasonably relocating from his rural home town to another part of
Mexico. See Molina-Cabrera v. Sessions, 905 F.3d 1103, 1106 (8th Cir. 2018). The
BIA pointed to Mexico City, where Pacheco-Moran’s husband is from and which is
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reported to have “taken the lead in . . . taking measures to protect the rights of the
LGBT population.”
C. An Alleged Third PSG
Pacheco-Moran also argues that the IJ and BIA ignored a third PSG for which
he would qualify for asylum: “Mexicans Perceived to be Against Catholicism.”
Therefore, fundamental fairness requires that we remand for factual findings on this
issue. We agree with the government this issue was not properly preserved.
The IJ insisted that Pacheco-Moran define any PSG on which his claim is
based, with supporting authorities. In separate briefs filed five years apart, he
identified the two PSGs we have discussed. At the evidentiary hearing, in response
to leading questions, a friend who grew up in Mexico and met Pacheco-Moran in
Minnesota testified that Catholics “don’t accept the gay community at all,” and that
“Our family . . . . [t]hey’re Catholics, they don’t like homosexuals.” Then, in closing
argument, counsel for Pacheco-Moran argued:
I would argue that because Mexico is so Catholic . . . . Being gay . . .
sort of constitutes an opposition to the religion and so I think we could
also add another basis based on [Pacheco-Moran] being perceived as
being non-Catholic or just a person who threatened the Catholic religion
by engaging in prohibited behavior in the view of the Catholic people.
As Pacheco-Moran had not identified this as a PSG, and that argument did not begin
to define this PSG, the IJ did not discuss it. On appeal, on page 20 of his appeal
Brief, Pacheco-Moran argued the BIA must remand because the IJ failed to consider
future persecution based on his membership “in a group of ‘Mexican gay men
perceived as being opposed to the Catholic religion.’” The BIA’s opinion did not
discuss this contention because Pacheco-Moran “did not raise this in his asylum
application or briefs to the Immigration Judge.” The BIA has held that issues not
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raised before the IJ are not preserved to appeal. Where the agency has properly
applied its own waiver rule and not considered an issue first raised on appeal, we will
not address that contention for the first time in a petition for judicial review. See
Pinos-Gonzalez v. Mukasey, 510 F.3d 436, 440 (8th Cir. 2008), citing Etchu-Njang
v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005).
D. Continuance Issues
1. In September 2018, following delays because the Los Angeles Police
Department could not find the file relating to the 1996 assault, Pacheco-Moran
received a Form I-918, Supplement B, U Nonimmigration Status Certification signed
by Sergeant Eric Johnson of the L.A. County Sheriff’s Office stating that
Pacheco-Moran cooperated with police during the investigation after being the victim
of a felony assault. Pacheco-Moran moved to continue the removal proceedings
based on the Form I-918B, requesting additional time to file his U-visa application.
The Attorney General’s regulations provide that an IJ “may grant a motion for
continuance for good cause shown.” 8 C.F.R. § 1003.29 (2012). DHS opposed a
continuance, arguing Pacheco-Moran did not show good cause, the merits hearing
was concluded, and his application for relief from removal should not be delayed for
this reason. The IJ denied Pacheco-Moran’s motion for continuance on September
19 for the reasons stated in the government’s opposition.
The IJ then issued her order denying Pacheco-Moran relief from removal on
October 24. He applied to USCIS for a U-visa on November 15, 2018. In its
November 2021 opinion dismissing Pacheco-Moran’s appeal, the BIA upheld the IJ’s
denial because he “does not cite evidence sufficient to establish good cause for a
continuance at the time the [IJ] ruled.” Pacheco-Moran argues the BIA erred in
upholding the IJ’s denial. We review the denial of a motion for a continuance for
abuse of discretion. See Hernandez v. Holder, 606 F.3d 900, 903 (8th Cir. 2010).
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In Matter of Sanchez-Soza, the BIA articulated non-exhaustive factors that an
IJ should consider in exercising this discretion: “(1) the DHS’s response to the
motion; (2) whether the underlying visa petition is prima facie approvable; and (3)
the reason for the continuance and other procedural factors.” 25 I&N Dec. 807 (BIA
2012). Pacheco-Moran argues the IJ abused her discretion because the denial
“contained no reasoning concerning the Sanchez-Sosa factors.” This is irrelevant if
the record confirms that Pacheco-Moran failed to establish good cause. See
Maldonado-Guzman v. Sessions, 715 F. App’x 277, 282-83 (4th Cir. 2017).
Viewing the issue in light of the Sanchez-Sosa factors, first, DHS timely
opposed the motion for continuance, giving reasons the IJ found persuasive. Second,
in September 2018, there was no U-visa application pending, as there was in Sanchez-
Soza, making the likelihood of ultimate U-visa success merely speculative. Third, the
underlying crime occurred in 1996, and Pacheco-Moran offered no explanation for
his twenty-year delay in filing a U-visa application except that the L.A. police had
difficulty finding the file in 2013, when he first inquired. In these circumstances, the
IJ could anticipate a lengthy delay in completing the removal proceedings if she
granted a post-hearing continuance. “An IJ traditionally has discretion to avoid
unduly protracted proceedings.” Choge v. Lynch, 806 F.3d 438, 441 (8th Cir. 2015)
(quotation omitted). The BIA did not err in finding no abuse of the IJ’s discretion.
2. On December 8, 2021, Pacheco-Moran moved the BIA to reconsider the
denial of relief from removal and to remand to allow him “to apply for a continuance
or the newly available relief in the form of administrative closure.” Pacheco-Moran
argued: first, that the BIA should reconsider because it provided no analysis of the
Sanchez-Sosa factors, an argument we have already rejected. Second, his now-
pending U visa petition “is prima facie approvable,” and our recent decision in
Quecheluno v. Garland, 9 F.4th 585 (8th Cir. 2021), held that filing a U visa
application after entry of the IJ’s order constitutes a new fact for purposes of a motion
to reopen. Third, a recent decision of the Attorney General made administrative
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closure newly available relief. The BIA denied the motion to reconsider on June 2,
2022, noting that Pacheco-Moran had not previously requested administrative closure
from the IJ or the BIA, and finding that he had not shown (i) he was likely to succeed
on his U-visa application, and (ii) he had not contributed to the delay in seeking a U-
visa. Pacheco-Moran separately appeals this ruling.
“We review decisions . . . denying motions to reopen or reconsider for abuse
of discretion.” Mohamed v. Barr, 983 F.3d 1018, 1022 (8th Cir. 2020). As we have
repeatedly stated, and as the Attorney General’s procedural regulations reflect, these
motions “are disfavored because there is a strong public interest in litigation finality.”
Robles v. Garland, 23 F.4th 1061, 1063 (8th Cir. 2022) (quotation omitted). The BIA
has stated, “[a]s a general rule, a party who seeks to reopen proceedings to pursue
relief bears a ‘heavy burden’ of proving that if proceedings were reopened, the new
evidence would likely change the result in the case.” Barrera Arreguin v. Garland,
29 F.4th 1010, 1017 (8th Cir. 2022), quoting Matter of Coelho. 20 I&N Dec. 464,
472-73 (BIA 1992).
Pacheco-Moran does not clear this high bar. First, as we have stated, the
Sanchez-Soza factors do not weigh in his favor. Second, as in Islas-Saldana, we
conclude Quecheluno is readily distinguishable. 59 F.4th at 931 n.1. Here, the
government has not conceded that Pacheco-Moran is prima facie eligible for a U-visa
based on a crime that occurred twenty-six years ago, and he offers no explanation for
the delay between 1996 and 2013, when the commencement of removal proceedings
prompted him to apply. Third, the BIA hardly abused its discretion in not remanding
for an administrative closure inquiry based on the Attorney General’s ruling in Matter
of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), that revived this procedure. In
denying reconsideration, the BIA applied its pre-existing administrative closure
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precedent and found that Pacheco-Moran had shown neither a likelihood of success
in his U-visa application nor that he had not contributed to the delay in seeking the
visa. See Matter of Avetisyan, 25 I&N Dec. 688, 696 (BIA 2012).
For the foregoing reasons, we deny the petitions for review.
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