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Urgilez Mendez v. Whitaker

United States Court of Appeals, First Circuit

December 11, 2018

JAIME EDUARDO URGILEZ MENDEZ, Petitioner,
v.
MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL, [*] Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Glenn L. Formica, Elyssa N. Williams, and Formica Williams, P.C. on brief for petitioner

          Chad A. Readler, Acting Assistant Attorney General, Civil Division, Keith I. McManus, Assistant Director, Office of Immigration Litigation, and Rosanne M. Perry, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

          Before Barron and Selya, Circuit Judges, and Katzmann, Judge. [**]

          SELYA, CIRCUIT JUDGE.

         The petitioner, Jaime Eduardo Urgilez Mendez, is an Ecuadorian national. He seeks judicial review of an order of the Board of Immigration Appeals (BIA) dismissing his application for asylum.[1] After careful consideration, we deny his petition.

         The relevant facts are straightforward. On April 19, 2013, the petitioner entered the United States illegally at Laredo, Texas. In short order, the Department of Homeland Security initiated removal proceedings against him. The petitioner conceded removability and applied for asylum. He premised his asylum application on a claim that he had been persecuted in the past (and, thus, feared future persecution) by gang members on account of his political opinion and/or membership in a particular social group.

         At a hearing held before an immigration judge (IJ) on April 12, 2017, the petitioner testified that while in Ecuador, he had surreptitiously gone to the police to report gang activity in his town. Specifically, he told the police that gang members were extorting money from his family and other community members. The record contains nothing that would indicate that either the petitioner's views about gang activity or his role as an informant were known outside of official circles. By the same token, the record contains no hint that the petitioner voiced his accusations publicly.

         Sometime in 2004 - the record is tenebrous as to how much time elapsed after the petitioner's private conversations with the police - the petitioner was stabbed by a gang member known as "Shaggy." His injuries required significant medical treatment, and the attack left the petitioner emotionally traumatized. When asked what prompted the assault, the petitioner expressed uncertainty. He eventually speculated that "maybe it could have been because I had gone to the police." And even though he had approached the police in secret, he ruminated that "maybe [Shaggy] knew." This suspicion apparently derived from the petitioner's unsubstantiated belief that "the police and the gangs work together."

         The petitioner related that, subsequent to the stabbing incident, he was interviewed by a local prosecutor. To his knowledge, though, no action was taken against Shaggy. Once again, the record contains nothing to indicate that either the fact of the petitioner's meeting with the prosecutor or the contents of their discussion was known outside the prosecutor's office.

         This was not the end of the matter. The petitioner asserted that Shaggy continued to threaten him by leaving notes and spray-painting messages on his house. But no further confrontation occurred until 2008, when the petitioner was again attacked by unidentified persons, whom he suspected to be gang members. This attack left him with a scar on his face. Asked to explain why he had been attacked, the petitioner was unable to offer any explanation.

         At the conclusion of the hearing, the IJ expressed grave reservations about the petitioner's credibility but nonetheless assumed that his testimony was credible. Even on this arguendo assumption, the IJ rejected the petitioner's request for asylum. Critically, the IJ determined that the petitioner had failed to establish a nexus between the harm that he described and any statutorily protected ground for asylum status. In the IJ's view, the violence that the petitioner experienced was likely the consequence of personal retaliation or retribution.

         The petitioner appealed, but the BIA upheld the IJ's findings. In its decision, the BIA pointed out that the petitioner had shifted gears and had proffered a new definition of the social group to which he belonged: state witnesses against criminals in Ecuador. The BIA noted that it "generally does not consider new definitions proposed for the first time on appeal." Here, however, the BIA opted to consider the petitioner's new definition, but still found his asylum claim wanting on lack-of-nexus grounds. This timely petition for judicial review followed.

         Although judicial review in immigration cases generally focuses on the final decision of the BIA, a different rule applies when the BIA embraces the IJ's decision but adds its own gloss. In such circumstances, judicial review focuses on the two decisions as a unit. See ...


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