Académique Documents
Professionnel Documents
Culture Documents
No. 15-2272
FELIPE GARCA-CRUZ,
Petitioner,
v.
Respondent.
Before
of removal.
BACKGROUND
A. Factual Background1
-2-
The incumbent mayor, Ernesto Calachij-Riz, belonged to
the Une y Gana (Spanish for "Unite and Win") party. According to
with their weapons. They had guns and they had sticks and machetes
y Gana candidate, had won the race. The next morning, Patriota
fight broke out" and the "city hall was set on fire." Garca-Cruz
was at home at the time, but other Patriota supporters told him
that "the Une y Gana party was going to kill off all the members
"a list of people they accused of being responsible for the fire."
-3-
himself as an Une y Gana member -- blamed Garca-Cruz for the fire,
pledged to hold him responsible for it, and threatened his life.
"We are watching you, and when we find you we will kill you."
leaving his house. In the third call, the caller asked Garca-
received the next phone call. The caller asked why he had left
Chixocol and told Garca-Cruz that they knew where he was. In the
fifth and final phone call, in January 2012, the caller told
police were "in the present mayor's pocket," and he feared word
from Chixocol. Garca-Cruz also removed the chip from his cell
-4-
phone so that he would not receive any more calls. After saving
was "taken from his home and beaten very badly." Another Patriota
least one" person who was killed by Une y Gana "in the year that
members of the committee who were accused of burning the city hall,
was arrested by the police for alleged crimes against his political
Guatemala was a member of the Patriota party, but the Une y Gana
however, could not live with them because they lived with his
-5-
B. Procedural History
public view, and the phone calls alone were not "so menacing as to
have caused some actual harm" and so did not rise to the level of
hearing was a member of the Patriota party and "the Patriota party
-6-
where he had relocated his wife and children. Thus, the IJ denied
for protection under the CAT given his failure to demonstrate that
public official.
have caused some actual harm," and so they did not rise to the
Guatemala." It cited the fact that his wife and children lived
well." Thus, the BIA ruled that Garca-Cruz was not eligible for
2 The BIA did not adopt the IJ's findings (1) that it "could not
conclude the requisite government action or inaction," or (2) that
Garca-Cruz had not established a well-founded fear of future
persecution even if he did not relocate within Guatemala. We
therefore do not review those issues. Renaut v. Lynch, 791 F.3d
163, 170-71 (1st Cir. 2015); Romilus v. Ashcroft, 385 F.3d 1, 5
(1st Cir. 2004) ("[W]here the BIA's decision adopts portions of
-7-
The BIA therefore dismissed his appeal, and Garca-Cruz petitioned
ANALYSIS
(1st Cir. 2015) (quoting Hasan v. Holder, 673 F.3d 26, 33 (1st
8 U.S.C. 1252(b)(4)(B).
-8-
circumstances or that Garca-Cruz "could avoid future persecution
Javed v. Holder, 715 F.3d 391, 395-96 (1st Cir. 2013). "'Threats
Lpez de Hincapi v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007)).
-9-
2008) (quoting TobonMarin v. Mukasey, 512 F.3d 28, 32 (1st Cir.
2008)).
calls from a militant group threatening his and his family's lives
75. After he changed his telephone number, the same group left a
ruling that this was not past persecution. Id. at 76. We affirmed,
stating that "we [could not] say that the agency was compelled to
F.3d 205, 207-08 (1st Cir. 2005). The BIA had not considered the
-10-
that threats constituted persecution as a matter of law. Although
the BIA certainly could have found that Garca-Cruz suffered past
Guatemala."
8 C.F.R. 1208.13(b)(3).
-11-
Determining whether an applicant can reasonably relocate
First, the BIA must decide whether there is a safe area of the
BIA must analyze whether "it would be reasonable for the applicant
1. Jurisdiction
the IJ and the BIA did not properly apply the considerations listed
in 8 C.F.R. 1208.13(b)(3).
-12-
administrative exhaustion in this context is an "inquiry into
Kopke, Jr., Inc., 708 F.3d 33, 3638 (1st Cir. 2013). We therefore
IJ, forgo any presentation of that theory to the BIA, and then
Matas v. Holder, 778 F.3d 322, 327 (1st Cir. 2015). Although a
-13-
exhaustion requirement is satisfied where the agency chooses to
the alien raised that issue." (quoting Meng Hua Wan v. Holder, 776
so safely."
For its part, the BIA repeated how the IJ had found that
Guatemala." The BIA then stressed that "[i]n this regard," the
so as well." And the BIA found "no clear error of fact or mistake
-14-
both whether the BIA properly found that it was safe for Garca-
at every level -- and whether the BIA properly found that he could
2. The Merits
2012 without any further threats after removing the chip from his
years had passed since the 2011 mayoral election; and "the Patriota
-15-
BIA do not necessarily have to address each of [8 C.F.R.
agency must explain why the factors that cut against the asylum
704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v.
Gonzales, 241 F. App'x 432, 434 (9th Cir. 2007) (remanding asylum
the BIA, however, because (1) "neither the IJ nor the BIA addressed
be safe in that area and (2) "neither the IJ nor the BIA made any
-16-
Yet the IJ and the BIA discussed only the fact that Garca-Cruz's
wife and children were in Salam. They did not address evidence
Salam and does not "have a home . . . [or] a job" there. Thus,
-17-
reasonableness factors. Given the limited analysis on this issue,
therefore grant the petition for review, vacate the BIA's order,
CONCLUSION
-18-
KAYATTA, Circuit Judge, dissenting in part. I agree
with my colleagues that the record supports the BIA's finding that
the United States in May of 2012 did not constitute the type of
BIA may not be surfaced for the first time in a petition for
387 F.3d 75, 80 (1st Cir. 2004). We have further concluded that
v. Holder, 734 F.3d 57, 62 (1st Cir. 2013); see also Sousa v. INS,
226 F.3d 28, 31 (1st Cir. 2000) ("Whatever our own views, we are
-19-
bound by precedent to apply the INA exhaustion requirement in a
colleagues declare that the BIA sua sponte raised and exhausted
assert that we can find, essentially, that the BIA's sua sponte
BIA did not also sua sponte evaluate factors that Garca-Cruz never
-20-
It is plain from the above that the IJ made two relevant findings,
only:
-21-
(citations omitted). The BIA directly responded to Garca-Cruz's
(citations omitted).
one would not expect to find were the BIA simply discussing and
without explanation, they point to the fact that the BIA said
-22-
wife and children did not mean that he could safely relocate as
the very fact that my colleagues fault the BIA for not expressly
734 F.3d at 63; see also Velerio-Ramirez v. Lynch, 808 F.3d 111,
117 (1st Cir. 2015) (finding that the BIA sua sponte exhausted the
-23-
issue of which law applied because the BIA "addressed applicable
sua sponte exhaustion only when "the agency makes clear its wish
so hold, they must think that the BIA raised something that Garca-
-24-
Cruz did not, and then squarely addressed it. Yet I can find no
go first, while also avoiding the delay and uncertainty that would
Paiz, 734 F.3d at 6263 (citing, inter alia, SEC v. Chenery, 332
U.S. 194, 20001 (1947)). Sua sponte exhaustion does not hinder
the agency really did do what it would have done had the petitioner
-25-
reason, has squarely addressed the petitioner's otherwise
not only our own precedent, see id., but also the precedent of at
39. Such, I fear, may tempt Congress to conclude that the circuit
-26-