Mendez-Guitirrez v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZEFERINO MENDEZ-GUTIERREZ, 
Petitioner, No. 04-72525
v.
 Agency No.
A75-301-863
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 15, 2006—San Francisco, California
Filed April 17, 2006
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
4257
MENDEZ-GUTIERREZ v. GONZALES 4259
COUNSEL
Jonathan M. Kaufman, San Francisco, California, for the peti-
tioner.
Peter D. Keisler, Linda S. Wendtland, Shelley R. Goad, U.S.
Department of Justice, Washington, D.C., for the respondent.
OPINION
WALLACE, Circuit Judge:
Zeferino Mendez-Gutierrez petitions for review of the
Board of Immigration Appeals’ (Board) denial of his motion
to reinstate his asylum application. The Board found that
Mendez-Gutierrez had not established a prima facie case for
asylum based on a well-founded fear of future persecution.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We deny
the petition for review.
I
Mendez-Gutierrez entered the United States at San Ysidro,
California, on December 1, 1989. On February 10, 1997, he
4260 MENDEZ-GUTIERREZ v. GONZALES
submitted an asylum application to the former Immigration
and Naturalization Service. Mendez-Gutierrez stated that he
was a member of the National Action Party (PAN) in Mexico
and was persecuted by the Institutional Revolutionary Party
(PRI), which was in power at the time.
Mendez-Gutierrez’s asylum application was referred to an
immigration judge, and he was served with a Notice to
Appear. During the hearing Mendez-Gutierrez, who was rep-
resented by counsel, admitted his removability, withdrew his
asylum application, and requested cancellation of removal.
The immigration judge held Mendez-Gutierrez removable and
statutorily ineligible for both cancellation of removal and vol-
untary departure. The immigration judge also denied Mendez-
Gutierrez’s request to reinstate the asylum application that he
had previously withdrawn.
Mendez-Gutierrez appealed to the Board, arguing that the
immigration judge abused her discretion in denying his
request to reinstate the withdrawn asylum application. The
Board dismissed the appeal, holding that, although the failure
to consider the asylum application may have been error, it did
not “materially affect the outcome of the case.” According to
the Board, Mendez-Gutierrez had not established prima facie
eligibility for asylum because he had failed to demonstrate
past persecution.
Mendez-Gutierrez then petitioned this court for review. In
a published opinion, we granted the petition for review.
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003).
We first concluded that the Board did not abuse its discretion
by requiring Mendez-Gutierrez to show prima facie eligibility
for asylum before reopening his application, id. at 869-70, and
upheld the Board’s determination that Mendez-Gutierrez had
not established past persecution. “We cannot conclude that
the unspecified threats against Mendez-Gutierrez were suffi-
ciently menacing to constitute past persecution, as we do not
even know what the threats entailed. Nor do the occasional
MENDEZ-GUTIERREZ v. GONZALES 4261
incidents of detention and interrogation rise to the level of
past persecution.” Id. at 869 n.6 (citation omitted).
However, we held that the Board did abuse its discretion in
not considering whether Mendez-Gutierrez had demonstrated
a well-founded fear of future persecution, and we remanded
so that the Board could consider it in the first instance. Id. at
869-70. We stated that “it appears doubtful that Mendez-
Gutierrez will be able to establish a well-founded fear of
future persecution” due to current country conditions in Mex-
ico. Id. at 870. We referred to the 2000 election of PAN can-
didate Vicente Fox Quesada as president of Mexico. Fox has
since remained in power. See id. Mendez-Gutierrez does not
argue that he would be in danger were the PRI to return to
power.
On remand, Mendez-Gutierrez filed a three-page brief. He
supplied no affidavits or additional evidence regarding his
asylum application. He also argued for the first time that the
Notice to Appear was defective because the title of the sign-
ing officer was not disclosed in full. The Board dismissed the
appeal, holding that Mendez-Gutierrez “ha[d] not met his bur-
den to establish that he has a prima facie case of a well-
founded fear of persecution for having been a member of the
PAN party.” The Board held that the other issues raised by
Mendez-Gutierrez were “beyond the scope of the court’s
remand.”
II
[1] The Attorney General has discretion to grant asylum to
“refugees,” defined as persons unable or unwilling to return
to their country “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101 (a)(42). “[A] respondent demonstrates prima
facie eligibility for relief where the evidence reveals a reason-
able likelihood that the statutory requirements for relief have
4262 MENDEZ-GUTIERREZ v. GONZALES
been satisfied.” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.
2003).
An alien’s well-founded fear must be both subjectively
genuine and objectively reasonable. Velarde v. INS, 140 F.3d
1305, 1309 (9th Cir. 1998). “An alien satisfies the subjective
component by credibly testifying that she genuinely fears per-
secution. The objective component requires a showing by
credible, direct, and specific evidence in the record, of facts
that would support a reasonable fear of persecution.”
Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (inter-
nal quotation marks and citations omitted). “One way to sat-
isfy the objective component is to prove persecution in the
past . . . . The second way is to show a good reason to fear
future persecution by adducing credible, direct, and specific
evidence in the record of facts that would support a reason-
able fear of persecution.” Ladha v. INS, 215 F.3d 889, 897
(9th Cir. 2000) (internal quotation marks and citations omit-
ted).
We review the Board’s denial of a request to reinstate an
asylum application for an abuse of discretion. Mendez-
Gutierrez, 340 F.3d at 869. In the absence of an adverse credi-
bility determination, Mendez-Gutierrez’s statements must be
taken as true. See Navas v. INS, 217 F.3d 646, 652 n.3 (9th
Cir. 2000).
[2] Even taking all of the statements on the asylum applica-
tion as true, Mendez-Gutierrez has failed to establish prima
facie eligibility for asylum. According to the application,
Mendez-Gutierrez was harassed and threatened by the federal
police because of his political affiliation, though he could not
remember the dates on which this harassment occurred. He
also stated, “I was interrogated several times at my home and
sometimes I would get taken to a desolate place and I would
get questioned with rudeness.” He declared that he believed
he would be killed if he returned to Mexico, because the PRI
“believes their actions and motives towards government are
MENDEZ-GUTIERREZ v. GONZALES 4263
correct and everyone should share their opinion and if not it
becomes impossible to live in Mexico.”
We previously held that this was insufficient to constitute
past persecution. However, we remanded to allow Mendez-
Gutierrez the opportunity to demonstrate a well-founded fear
of future persecution. Mendez-Gutierrez, 340 F.3d at 870. The
Board granted Mendez-Gutierrez time to file additional sub-
missions on remand. Nonetheless, Mendez-Gutierrez pro-
vided no new argument whatsoever on remand. He merely
“submit[ted] that the Board should remand the proceedings to
the IJ with orders that respondent’s asylum application be
reinstated, and respondent scheduled for an evidentiary hear-
ing on his asylum application.” Thus, the Board based its
determination of future persecution on the allegations con-
tained in Mendez-Gutierrez’s asylum application.
[3] Mendez-Gutierrez’s vague and conclusory allegations
of fear for his life if he returns to Mexico are clearly insuffi-
cient to support a finding of a well-founded fear of future per-
secution. Our case law has consistently required more. See,
e.g., Marcos v. Gonzales, 410 F.3d 1112, 1115-16, 1119 (9th
Cir. 2005) (holding fear of persecution well-founded where
petitioner received dozens of death threats from a rebel mili-
tia); Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (holding
fear of future persecution well-founded where petitioner “was
threatened with death, he was followed, he appeared on a
death list, and his colleagues who received similar threats
were killed”); Avetova-Elisseva v. INS, 213 F.3d 1192, 1201
(9th Cir. 2000) (holding fear of future persecution well-
founded where a pattern and practice of harassment created “a
strong likelihood of persecution, possibly resulting in physical
harm or death, if [petitioner] were forced to return to the Rus-
sian Federation”) (internal quotation marks and citation omit-
ted).
The Board did not abuse its discretion in determining that
Mendez-Gutierrez’s asylum application was insufficient to
4264 MENDEZ-GUTIERREZ v. GONZALES
satisfy prima facie the statutory requirements of subjectively
genuine and objectively reasonable well-founded fear. Thus,
we do not disturb this determination of the Board.
III
While this case was on remand to the Board, Mendez-
Gutierrez contended for the first time that the 1997 Notice to
Appear was defective because the immigration officer who
signed it wrote his title as “SAO” rather than as “Supervisory
Asylum Officer.” Mendez-Gutierrez argued that this abbrevi-
ation vitiated the requirements that “the DHS official who
issues an NTA . . . both sign the form and identify his or her
official capacity,” although he conceded that he had “already
pled to the charging document and conceded proper service.”
The Board did not address the argument. Instead it held:
“Rather than address the reasons for the Ninth Circuit’s
remand, the respondent attempts to raise other issues that
were not set out by the court. We find these matters are
beyond the scope of the court’s remand.”
The Board’s determination of purely legal questions is
reviewed de novo. Singh v. INS, 213 F.3d 1050, 1052 (9th
Cir. 2000). We thus review de novo whether the Board is
bound by the scope of our remand.
[4] Whether the Board is bound by the scope of our remand
appears to be a question of first impression for this and other
circuits. However, we have repeatedly held, in both civil and
criminal cases, that a district court is limited by this court’s
remand in situations where the scope of the remand is clear.
In United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994)
(per curiam), we had remanded Pimentel’s sentence to the dis-
trict court for a determination whether and to what extent to
depart from the sentencing guidelines based on Pimentel’s
family circumstances. On remand, Pimentel argued for the
first time that the district court erred by failing to group the
counts of conviction when calculating the offense level. We
MENDEZ-GUTIERREZ v. GONZALES 4265
held that, “[i]n light of [the] clear evidence that the scope of
our remand was limited to the single sentencing issue raised
in Pimentel’s prior appeal, the district court was without
authority to reexamine any other sentencing issues on
remand.” Id.; see also Twentieth Century Fox Film Corp. v.
Entm’t Distrib., 429 F.3d 869, 883 (9th Cir. 2005) (“There is
nothing in our prior decision that indicates that we issued an
open remand. Rather, in remanding to the district court, our
opinion contemplates a trial to resolve the only remaining
genuine issue of material fact”); Gospel Missions of Am. v.
City of Los Angeles, 419 F.3d 1042, 1051-52 (9th Cir. 2005)
(“[T]he only equal protection argument we directed the dis-
trict court to consider on remand was a challenge to [a partic-
ular statutory provision]. [Litigants] do[ ] not challenge the
scope of the remand or argue that it should be allowed to raise
other issues. . . . We therefore will not consider this equal pro-
tection argument”) (citation omitted); Leslie Salt Co. v.
United States, 55 F.3d 1388, 1392 (9th Cir. 1995) (“In the
subsequent appeal, the scope of review is narrowed to the lim-
itations of the remand.”) (internal quotations and citation
omitted).
[5] We conclude there is no justification to treat the Board
differently from the district court when we issue a limited
remand. Both are operating pursuant to an order of this court
requiring specific action. The Board, like the district court,
has no power to expand our remand beyond the boundary
ordered by our court. This is consistent with the orderly
administration of justice. See Mirchandani v. United States,
836 F.2d 1223, 1226 (9th Cir. 1988) (holding district court
bound by scope of court of appeals’s remand where “there is
some threatened disruption of the judicial system’s orderly
operation”). We therefore hold that the Board was bound by
the scope of our remand to resolve the only remaining issue:
“whether Mendez-Gutierrez has established a prima facie case
of eligibility for asylum.” Mendez-Gutierrez, 340 F.3d at 870.
We do not decide whether the Notice to Appear was valid
and, if not, what the consequences should be. The proper
4266 MENDEZ-GUTIERREZ v. GONZALES
method for Mendez-Gutierrez to raise this argument would
have been to file a motion to reconsider with the Board. A
motion to reconsider seeks a new determination based on
alleged errors of fact or law. See 8 U.S.C. § 1229a(c)(6). A
contrary conclusion would allow petitioners carte blanche to
raise any new issues on our remand, regardless of whether the
issues could have or should have been raised before, and
without giving the discretion to the Board that a motion to
reconsider or to reopen would afford.
[7] The Board properly refused to go beyond our limited
remand.
PETITION DENIED.