Javier Mejia v. Merrick B. Garland

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2088
JAVIER DIAZ MEJIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A099-025-650
____________________
ARGUED SEPTEMBER 19, 2022 — DECIDED JULY 27, 2023
____________________
Before WOOD, SCUDDER, and JACKSON-AKIWUMI, Circuit
Judges.
JACKSON-AKIWUMI, Circuit Judge. Javier Diaz Mejia is a
Mexican national challenging the denial of withholding of re-
moval under 8 U.S.C. § 1231(b)(3) and protection under the
Convention Against Torture. Diaz Mejia fears that a gang in
Mexico City will target him if he returns to Mexico.
2 No. 21-2088
The Immigration Judge found Diaz Mejia’s testimony and
documentation credible, but denied relief on five grounds,
two of which are important to this petition for review. First,
the IJ concluded the gang’s prior attacks on Diaz Mejia, which
resulted in only minor injuries, were not severe enough to
count as persecution under 8 U.S.C. § 1231(b)(3). Second, the
IJ found that, regardless of any other argument Diaz Mejia
might raise, his claims for relief failed because he could avoid
the gang by relocating within Mexico. The BIA agreed with
both conclusions.
Unfortunately for Diaz Mejia, the BIA’s two determina-
tions are dispositive, particularly because Diaz Mejia’s coun-
sel failed to challenge the relocation issue before the BIA or
us.
I
Diaz Mejia, a Mexican national, reentered the United
States after being removed from the country at least twice be-
fore. In August 2020, the Department of Homeland Security
reinstated its prior removal orders and initiated another re-
moval proceeding. Diaz Mejia sought withholding of removal
under 8 U.S.C. § 1231(b)(3) and protection under the Conven-
tion Against Torture. He claimed that if returned to Mexico,
he would face violence from the Union of Tepito, a criminal
organization he had been coerced into assisting. The gang ap-
proached Diaz Mejia while he was selling religious keychains
around Mexico City and demanded that he use his business
travel as a front to transport the gang’s drugs. When Diaz
Mejia initially refused, the gang beat him and mocked his re-
ligion. Diaz Mejia stated that police officers were nearby when
the beating occurred and ignored it, but he could not say
whether they saw it.
No. 21-2088 3
Diaz Mejia agreed to help the gang but, after a few drug
deliveries, he quit and relocated his business to a different
area on the outskirts of Mexico City. The gang nonetheless
found and attacked him again, this time hitting his head with
a gun and threatening to kill him. Diaz Mejia eventually fled
to the United States. He testified that he believed he could not
go elsewhere in Mexico because he did not know if other
gangs were affiliated with the Union of Tepito. He also feared
people in other regions would discriminate against his Mex-
ico City accent.
The IJ found Diaz Mejia credible but denied withholding
of removal on several grounds. For one, the gang’s prior at-
tacks did not qualify as persecution under the statute. Addi-
tionally, Diaz Mejia failed to demonstrate future persecution
would be likely, failed to establish that his persecution was
tied to membership in a qualifying social group, and failed to
show that Mexican officials would be unwilling or unable to
protect him. Finally, the IJ decided that Diaz Mejia could
avoid the gang by relocating within Mexico. The IJ also de-
nied Diaz Mejia protection under the Convention Against
Torture because his beatings by the gang did not rise to the
level of torture and did not involve the acquiescence of gov-
ernment officials.
The BIA affirmed, holding that Diaz Mejia had not been
persecuted and his ability to relocate within Mexico doomed
both his claims. The BIA determined those two issues were
dispositive and therefore did not address the IJ’s other find-
ings. Importantly, because Diaz Mejia did not meaningfully
raise the relocation issue on appeal to the BIA, the BIA con-
cluded that he had waived any challenge to the IJ’s findings
4 No. 21-2088
about his ability to relocate. Diaz Mejia now petitions this
court for review.
II
An applicant is eligible for withholding of removal if they
can show that their life or freedom would be threatened due
to their race, religion, or membership in a particular social
group, among other characteristics. 8 U.S.C. § 1231(b)(3)(A).
An applicant bears the burden of making such a showing. Id.;
§ 1231(b)(3)(C); 8 C.F.R. § 1208.16(b). A showing of past per-
secution in the applicant’s previous country creates a rebutta-
ble presumption that future persecution may follow if the ap-
plicant is removed. § 1208.16(b)(1)(i). This presumption is re-
butted if an IJ finds that there has been a fundamental change
in circumstances, or the applicant could avoid a threat to their
life or freedom by moving to a different part of the country.
§ 1208.16(b)(1)(i)(A)-(B).
An applicant can receive withholding of removal under
the Convention Against Torture if they can show it is more
likely than not that they will be tortured if removed.
§ 1208.16(c)(2). But like withholding of removal, whether an
applicant can avoid torture by relocating to a different part of
the country is an important consideration. § 1208.16(c)(3)(ii).
Accordingly, an applicant’s ability to relocate creates grounds
to reject claims for either statutory withholding or Conven-
tion Against Torture protection. Garcia-Arce v. Barr, 946 F.3d
371, 377–78 (7th Cir. 2019).
As an initial matter, in his petition Diaz Mejia attempts to
argue issues that were not addressed by the BIA in its affir-
mance of the IJ. For the BIA, these were “additional issues” it
need not resolve because past persecution and ability to
No. 21-2088 5
relocate were dispositive. Diaz Mejia notes the BIA cited a
now-vacated decision for this proposition, but the broad prin-
ciple that the BIA may ignore some issues as subordinate to
other dispositive issues remains good law. Meza v. Garland, 5
F.4th 732, 737–38 (7th Cir. 2021) (“Since a failure to demon-
strate good moral character is a sufficient basis for denying
cancellation of removal, the Board had no need to go fur-
ther.”).
With that threshold matter aside, we consider the IJ’s and
BIA’s findings on past persecution. Diaz Mejia does not di-
rectly challenge the finding that he has not suffered past per-
secution. Recall, the IJ decided that the two gang attacks Diaz
Mejia endured did not count as persecution under §
1231(b)(3) because he was not seriously injured. Diaz Mejia’s
brief does not point to any evidence that would cast doubt on
this decision. Rather, his brief asks us to assume past persecu-
tion, and instead jumps to arguing subordinate issues, such
as whether the IJ properly identified Diaz Mejia’s social
group, or whether the IJ properly addressed the issue of gov-
ernment acquiescence to Diaz Mejia’s persecution.
This failure to develop an argument on past persecution
results in waiver. Minghai Tian v. Holder, 745 F.3d 822, 827 (7th
Cir. 2014). Because Diaz Mejia has waived an argument about
past persecution, he must demonstrate that he cannot relocate
within Mexico to avoid future persecution.
Even if Diaz Mejia had demonstrated past persecution —
creating a presumption of future persecution — that is rebut-
ted if the applicant can avoid future threats by relocating to
another part of the country and doing so is “reasonable.” 8
C.F.R. § 1208.16(b)(1)(i); § 1208.16(b)(1)(i)(B); Garcia-Arce, 946
F.3d at 377. The IJ, as permitted by § 1208.16(c)(3)(ii) and
6 No. 21-2088
§ 1208.16(b)(1)(i)(A)-(B), concluded that Diaz Mejia could
avoid the threats he faced by moving within Mexico. Diaz
Mejia did not meaningfully challenge this ruling before the
BIA -we found only a single sentence in his brief to the BIA
protesting that the IJ incorrectly assigned the burden of proof
for the internal relocation question. In the brief he prepared
for our court, Diaz Mejia acknowledges he “did not preserve
the issue of internal relocation on [sic] his agency appeal.” A
petitioner must exhaust administrative remedies before com-
ing to federal court and cannot make arguments here not
raised before the immigration tribunal. 8 U.S.C. § 1252(d)(1);
Hernandez-Alvarez v. Barr, 982 F.3d 1088, 1094 (7th Cir. 2020).
Diaz Mejia failed to meaningfully present the relocation issue
to the BIA, so any argument on it is foreclosed. Nyandwi v.
Garland, 15 F.4th 836, 841 (7th Cir. 2021). Because of this
waiver, we must accept the finding that Diaz Mejia could
avoid future threats by relocating within Mexico and affirm
the denial of both his withholding of removal and Convention
Against Torture claims on that basis.
III
Diaz Mejia failed to meaningfully challenge the two dis-
positive issues in his case before the BIA or this court — the
findings of no past persecution and ability to relocate upon
return to Mexico. As a result, we are compelled to DENY the
petition for review.