Salome Garcia v. Loretta E. Lynch

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Myron H. Bright and Jane Kelly (UNPUBLISHED), CONCUR BY: Myron H. Bright and Jane Kelly [4425350] [15-1975]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1975
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Salome Garcia
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 15, 2016
Filed: July 13, 2016
[Unpublished]
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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
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PER CURIAM.
Salome Garcia, a native and citizen of El Salvador, petitions for review of the
Board of Immigration Appeals’s (“BIA”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”), and ordering his removal. We deny Garcia’s petition.

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Garcia entered the United States without inspection on June 4, 1991. He was
apprehended by the Immigration and Naturalization Service (“INS”) one week later.
At that time, the INS served Garcia with an order charging him with being deportable
under the former section 241(a)(1)(B) of the Immigration and Nationality Act. Two
months later, Garcia filed a motion to change venue from Harlingen, Texas to Los
Angeles, California and also submitted a Form I-589 request for asylum, accompanied
by a copy of his El Salvadoran birth certificate. Garcia’s motion was granted, and he
appeared for a hearing in Los Angeles on December 3, 1991. At the hearing, he
withdrew his asylum application, received until May 3, 1992 for voluntary departure,
and waived appeal. Garcia failed to depart the United States within the voluntarydeparture period, and a warrant for his deportation was issued on February 9, 1995.
Meanwhile, on March 30, 1992, Garcia filed a second asylum application with
the INS. In this application, Garcia falsely claimed to be a native and citizen of
Guatemala and presented a falsified Guatemalan birth certificate. This application
remained pending with the INS (and its successor agency, the United States Citizen
and Immigration Services (“USCIS”)) until August 2005, when Garcia testified to an
asylum officer in Kansas City in support of his second asylum application. On March
25, 2008, the USCIS issued a notice of intent to deny his application. The USCIS
found Garcia not credible, citing the discrepancies between his first and second
asylum applications, particularly Garcia’s birthplace. The USCIS formally denied
Garcia’s second asylum application on September 8, 2008.
The Department of Homeland Security (“DHS”) subsequently initiated the
current removal proceedings against Garcia, serving him with a notice to appear
(“NTA”) and charging him with being removable under 8 U.S.C. § 1182(a)(6)(A)(I)
as an alien present in the United States without having been admitted or paroled. On
October 13, 2011, Garcia appeared before an immigration judge (“IJ”) and, through
counsel, admitted the factual allegations in the NTA (except for his country of

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nationality and citizenship) and conceded removability. The IJ designated El
Salvador as the country of removal, with Guatemala as the alternative.
Seeking relief from removal, Garcia filed a third application for asylum,
withholding of removal, and relief under the CAT. In evaluating this application, the
IJ considered several documents, including the NTA; Garcia’s 1992 asylum
application; his October 2011 written pleading; his motion to permit the late filing of
witness and exhibit lists for that day’s hearing; Garcia’s amended third I-589 asylum
application; and notarized translations of newspaper articles regarding country
conditions in El Salvador. The IJ also took administrative notice of the most recent
State Department country-conditions reports for El Salvador and Guatemala, while
excluding as untimely filed two exhibits that previously had been submitted and
already were in the record. The IJ rendered a written decision denying Garcia’s
application because he had not presented credible testimony. The IJ nonetheless
proceeded to the merits for “the sake of completeness,” finding Garcia’s claims
defeated by fundamental changes in country conditions in El Salvador and
Guatemala. The IJ granted Garcia a 60-day period of voluntary departure in lieu of
removal or, failing voluntary departure, removal to El Salvador or, in the alternative,
Guatemala. Garcia appealed to the BIA, which issued a written decision dismissing
the appeal, declining to reinstate Garcia’s period of voluntary departure, and ordering
Garcia removed from the United States pursuant to the IJ’s alternate order.
“We review the BIA’s legal determinations de novo, but we accord substantial
deference to the BIA’s interpretation of the statutes and regulations it administers.”
Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (quoting Garcia-Gonzalez v.
Holder, 737 F.3d 498, 500 (8th Cir. 2013)). We disturb the BIA’s findings of fact
only if unsupported by substantial evidence and if “any reasonable adjudicator would
be compelled to conclude to the contrary.” Id. (quoting Goswell-Renner v. Holder,
762 F.3d 696, 699 (8th Cir. 2014)).

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Garcia contends that the BIA violated his due process rights by dismissing his
appeal of the IJ’s order because the dismissal was arbitrary, capricious, and an abuse
of discretion. “To establish a due process claim, an alien must prove prejudice that
‘potentially affects the outcome.’” Zacarias-Velasquez v. Mukasey, 509 F.3d 429,
434-35 (8th Cir. 2007) (quoting Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir.
2007)). “We review de novo due process claims in immigration proceedings.” Id.
at 435.
Although, as Garcia argues, “[i]t is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings,” Reno v. Flores, 507
U.S. 292, 306 (1993), the entitlement to due process does not represent an entitlement
to a favorable outcome of that process. Because the briefs supporting Garcia’s
petition do not raise any meaningful argument regarding how or why the BIA’s
dismissal violated his right to due process other than by its affirmance of the IJ’s
unfavorable decision , we consider such a broad due process claim waived. See Awad
v. Gonzales, 494 F.3d 723, 727 (8th Cir. 2007) (declining to address a petitioner’s due
process claims because they “principally reiterate[d] his disagreement with the IJ’s
and BIA’s determinations against him”); Chay-Velasquez v. Ashcroft, 367 F.3d 751,
756 (8th Cir. 2004) (considering a claim waived when petitioner made “no
meaningful argument on this claim in his opening brief”). Nonetheless, to the extent
that Garcia challenges the IJ’s exclusion of the two exhibits filed on the day of his
merits hearing as untimely, Garcia cannot prove prejudice because, as the BIA noted,
not only were the exhibits included elsewhere in the record, but they also were
discussed in the IJ’s written decision. Accordingly, Garcia’s due process claim fails.
To the extent that Garcia’s petition instead asserts a challenge to the IJ’s
adverse-credibility determination, this claim is not properly before us. We do not
have jurisdiction to address claims not raised before the IJ or BIA. Juarez Chilel v.
Holder, 779 F.3d 850, 856 n.2 (8th Cir. 2015). “[W]e review the IJ’s findings only
to the extent that they were adopted by the BIA.” Etenyi, 799 F.3d at 1006. Here, the
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BIA did not adopt any of the findings underpinning the IJ’s adverse-credibility
determination but instead found Garcia’s appeal not to include a meaningful
challenge of the IJ’s adverse-credibility determination. Upon review of the record,
we agree with the BIA that Garcia did not raise an adverse-credibility challenge. In
his brief before the BIA, Garcia asserted as his primary basis for appeal that the IJ’s
decision to deny his I-589 application denied him due process because it was
arbitrary, capricious, and an abuse of discretion. The remainder of his BIA appeal
brief, similar to the briefs in support of his petition to our court, reiterated Garcia’s
arguments on the merits of his petition. Rather than arguing that the IJ committed
specific errors, Garcia instead argued that the IJ erred by denying his petition on the
merits. Such a “broad attempt to incorporate unspecified arguments d[oes]not ‘raise’
any particular issue before the Board.” Martinez Carcamo v. Holder, 713 F.3d 916,
925 (8th Cir. 2013). Because we “do not expect the Board to address veiled
arguments we would not consider ourselves,” the BIA correctly found that Garcia had
waived any challenge to the IJ’s adverse-credibility determination. See id.
All applications for asylum and withholding of removal require a threshold
determination of the applicant’s credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Because Garcia’s claims for asylum and withholding of removal were dependent on
the credibility of his testimony and because the IJ’s adverse-credibility determination
remains undisturbed, the BIA correctly determined that Garcia was not eligible for
asylum or withholding of removal. See Guled v. Mukasey, 515 F.3d 872, 880-81 (8th
Cir. 2008); Lybesha v. Holder, 569 F.3d 877, 881 (8th Cir. 2009) (“Because
petitioners’ withholding of removal . . . claim[] [is] based on the same inconsistent
testimony, the adverse credibility findings are fatal to both claims.”).1 The BIA thus
did not err by dismissing Garcia’s appeal.
For the reasons set forth above, we deny Garcia’s petition.
1

As Garcia did not challenge the IJ’s decision regarding his CAT claim before
the BIA, we do not consider this claim here. See Juarez Chilel, 779 F.3d at 856 n.2.
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BRIGHT, Circuit Judge, with whom KELLY, Circuit Judge, joins, concurring.
I concur in the court’s opinion denying relief in court proceedings to petitioner
Garcia.
I write separately to observe that in denying relief Garcia will be separated
from his family – his wife and two adult daughters, all United States citizens.
Garcia has been a crime-free resident of this country for more than twenty
years. A 2011 policy memorandum by U.S. Immigration and Customs Enforcement
(ICE) Director John Morton directs ICE personnel to weigh certain factors when
determining whether to exercise their prosecutorial discretion in removal proceedings
consistent with the priorities of the agency, including “the person’s length of presence
in the United States”; “the person’s criminal history”; and “whether the person has
a U.S. citizen or permanent resident spouse, child, or parent.” Memorandum from
John Morton, Dir., U.S. Immigration & Customs Enf’t, to All Field Office Directors,
All Special Agents in Charge, All Chief Counsel, U.S. Immigration & Customs Enf’t
4 (June 17, 2011), https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial
-discretion-memo.pdf.
This new policy took effect in June 2011, two months after the Department of
Homeland Security initiated the current removal proceedings against Garcia.
Nonetheless, this policy allows ICE personnel to exercise their prosecutorial
discretion “at any stage of an enforcement proceeding.” Id. at 5. I suggest that the
agency may now wish to exercise prosecutorial discretion to save this family from a
separate existence and allow Garcia to stay with his wife and daughters in the United
States. Garcia does not seem to pose any risk of harm to anyone should he remain in
this country.
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