Mauricio Vasquez v. Eric Holder, Jr.
OPINION filed: AFFIRMED, decision not for publication pursuant to local rule 28(g). Danny J. Boggs; Richard F. Suhrheinrich (authoring) and Jane Branstetter Stranch, Circuit Judges.
Case: 09-3785 Document: 006110909900 Filed: 03/29/2011 Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0189n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Mar 29, 2011
LEONARD GREEN, Clerk
MAURICIO ENRIQUE VASQUEZ,
ON PETITION FOR REVIEW
OF AN ORDER OF THE
BOARD OF IMMIGRATION
ERIC H. HOLDER, JR.,
BEFORE: BOGGS, SUHRHEINRICH and STRANCH, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Petitioner Mauricio Enrique Vasquez seeks reversal
of the decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application
for asylum and withholding of removal. On appeal, Vasquez forfeits necessary arguments and, thus,
cannot succeed in his challenge of the BIA’s decision. We AFFIRM.
Vasquez was born in Mexico in 1986. Around age two, he and his mother moved to
Columbia. Vasquez is a citizen of Mexico and Colombia and currently holds valid passports to both
countries. Vasquez entered the United States in June 2001 and received lawful permanent-resident
status approximately one year later. Since his arrival in the United States, Vasquez has twice
returned to Colombia.
In October 2004, the Circuit Court of Washington County, Arkansas, convicted Vasquez of
several criminal offenses including computer fraud, theft of property, and forgery. Each offense
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allowed for the imposition of a sentence of one year or longer. As a result, the U.S. Department of
Homeland Security served Vasquez with a Notice to Appear for removal proceedings. See 8 U.S.C.
§ 1227(a)(2)(A)(i) (2008) (allowing for removal of a lawful permanent resident upon his conviction
of a crime involving moral turpitude, if a sentence of one year or longer may be imposed, and if the
conviction occurs within five years of admission). Furthermore, because the conviction occurred
within five years of Vasquez’s admission as a permanent resident, he was ineligible for cancellation
of removal. 8 U.S.C. § 1229b(a)(1) (2008).
On November 22, 2006, Vasquez filed an application for asylum and withholding of removal
pursuant to 8 U.S.C. § 1158(b). This section permits asylum for a refugee who shows an inability
or unwillingness to return to his country of nationality because of a well-founded fear of persecution
on account of his membership in a particular social group. Accordingly, Vasquez argued that his
family constituted a particular social group and that, because various people and organizations had
committed several violent acts against his family members, he feared returning to Colombia.
On May 10, 2007, the Immigration Judge (“IJ”) issued an order, rejecting both the argument
that Vasquez’s family constituted a defined social group and the contention that Vasquez had a wellfounded fear of persecution. Based on these findings, the IJ denied asylum. The IJ also denied
withholding of removal on the ground that Vasquez failed to make the requisite showing that
persecution was more likely than not to occur. Finally, the IJ declined to exercise his discretion to
grant asylum because Vasquez’s convictions involved crimes of moral turpitude.
Although the IJ acknowledged that Vasquez did not want to return to Mexico and had no
family there, the IJ concluded that Vasquez had purposefully availed himself of his Mexican ties in
order to secure a Mexican passport prior to his potential removal to Columbia. Consequently, the
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IJ ordered Vasquez removed to Mexico, or in the alternative, to Colombia.
On June 4, 2007, Vasquez submitted his notice of appeal to the BIA. He stated that the IJ
erred by refusing to recognize his family as a particular social group and erred by denying his
application for asylum and withholding of removal. Although Vasquez indicated he intended to file
a separate, written brief, he never did so.
On May 27, 2009, the BIA dismissed the appeal. The BIA refused to recognize Vasquez’s
family as a defined social group. Pointing out that Vasquez’s family apparently suffered violence
at the hands of disparate actors, the BIA concluded that Vasquez’s family members do not share any
immutable characteristics and lack social visibility sufficient to allow Colombian society to perceive
them as a group. The BIA also refused to find that Vasquez possessed the requisite well-founded
fear of persecution. In support of this conclusion, the BIA cited Vasquez’s return trips to Colombia
and his insufficient explanation for the visits, given his purported fear. Additionally, the BIA
observed that the lack of any persecution on these return trips significantly undercut Vasquez’s
assertion of fear.
Because the BIA concluded that Vasquez was not a member of a defined social group and
lacked a well-founded fear of persecution, it denied asylum. The BIA also denied withholding of
removal on the basis that it requires a more demanding standard of proof than asylum.
Initially, we consider our jurisdiction to hear this appeal. The government claims appellate
jurisdiction is lacking in that Vasquez did not effectively exhaust his administrative claims because
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he failed to challenge the IJ’s order of removal to Mexico before the BIA.
We “may review a final order of removal only if” the petitioner “has exhausted all
administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1) (2005); Madrigal v.
Holder, 572 F.3d 239, 243 (6th Cir. 2009). To fulfill the exhaustion requirement the petitioner must
“first argue each claim before the IJ or the BIA”; failure to do so strips the appellate court of
jurisdiction to review the BIA’s decision. Csekinek v. I.N.S., 391 F.3d 819, 822 (6th Cir. 2004)
(citing 8 U.S.C. § 1252(d)(1)).
Although Vasquez did not submit a brief to the BIA regarding his assertion that the IJ erred
in denying his application for asylum and withholding of removal, the BIA considered Vasquez’s
appeal on the merits. When the BIA issued its decision dismissing his appeal, it precluded Vasquez
from seeking further administrative relief; as a consequence, he has effectively exhausted all
available administrative remedies. Madrigal, 572 F.3d at 243. Thus, we have jurisdiction to address
On appeal, Vasquez claims that the BIA erred in concluding that he did not qualify for
asylum relief under 8 U.S.C. § 1158. To qualify for asylum under this section, an applicant must
show that he is a refugee within the definition of 8 U.S.C. § 1101(a)(42), which requires both that
he (1) has a “well-founded fear of persecution” and (2) that this fear is “on account of . . .
membership in a particular social group[.]”1 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987)
(citing 8 U.S.C. § 1101(a)(42)). Although Vasquez’s brief on appeal explicitly acknowledges both
The requirements of the statute may also be satisfied in ways not relevant to Vasquez’s
appeal. See 8 U.S.C. § 1101(a)(42) (2010).
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elements, he failed to present and develop any argument regarding the first element. As a result,
Vasquez has not sufficiently raised his well-founded fear of persecution as an issue before this court;
his asylum argument therefore fails. See Fed. R. App. P. 28 (requiring that an appellant’s brief
contain a statement of the issues presented on appeal and an argument for each issue); Marks v.
Newcourt Credit Group, Inc., 342 F.3d 444, 462 (6th Cir. 2003). To the extent that identifying the
correct legal standard somehow constitutes an argument, it is still insufficient. See McPherson v.
Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (explaining that issues raised in a perfunctory manner,
without some effort at developing an argument, are deemed waived). In other words, Vasquez has
forfeited any argument concerning the BIA’s conclusion that he failed to demonstrate a well-founded
fear of persecution. As a result, he cannot possibly prevail on appeal. We therefore decline to reach
the issue of whether Vasquez’s family constituted a particular social group.
To the extent Vasquez contests the BIA’s affirmance of the IJ’s denial of his application for
withholding of removal, Vasquez waived his arguments by not discussing withholding of removal
in his brief. Moreover, Vasquez never mentions that his removal to Colombia was only in the
alternative to his removal to Mexico. Indeed, in Vasquez’s brief before this court, Mexico is not
mentioned at all. By failing to raise this issue, Vasquez forfeits any challenge of his order of removal
to Mexico. By forfeiting arguments necessary to his challenge of the BIA’s decision, Vasquez
cannot succeed on appeal.
For the foregoing reasons, we AFFIRM the BIA’s decision.
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