PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
L. Formica, Elyssa N. Williams, and Formica Williams, P.C. on
brief for petitioner
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.
Barron and Selya, Circuit Judges, and Katzmann, Judge.
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. After careful consideration, we deny his
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.
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.
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
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
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.
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.
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.
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 ...