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Barragan-Ojeda v. Sessions

United States Court of Appeals, Seventh Circuit

April 5, 2017

Juan Carlos Barragan-Ojeda, Petitioner,
v.
Jeff Sessions, Attorney General of the United States, Respondent.

          Argued December 1, 2016

         Petition for Review of an Order of the Board of Immigration Appeals. No. A206-516-229.

          Before Posner, Ripple, and Rovner, Circuit Judges.

          Ripple, Circuit Judge.

         Juan Carlos Barragan-Ojeda, a native and citizen of Mexico, entered the United States without authorization in 2013. He was apprehended at the border and requested asylum. Appearing pro se before the immigration judge ("IJ"), he claimed eligibility for asylum because a Mexican criminal gang had persecuted him. At the conclusion of his testimony, he briefly mentioned that he had been the victim of discrimination in employment because he was effeminate, but, when questioned by the IJ, he denied that he was gay-

         The IJ denied asylum, and Mr. Barragan-Ojeda appealed to the Board of Immigration Appeals ("Board" or "BIA"). There, represented by counsel, Mr. Barragan-Ojeda filed an additional affidavit asserting facts not before the IJ: he claimed that he was gay and that he had been persecuted because of his sexual orientation. The Board adopted and affirmed the IJ's denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board treated the appeal as a motion to remand and determined that the requirements for such a motion were not satisfied. Mr. Barragan-Ojeda now petitions for review in this court. He submits that the IJ denied him due process in the conduct of the proceedings and that the Board erred in denying him asylum on the basis of his sexual orientation.

         We deny the petition for review. Mr. Barragan-Ojeda's due process challenge is premised on the IJ's conduct of the hearing; this sort of claim must be presented to the Board before it can be presented here, and Mr. Barragan-Ojeda did not do so. In any event, nothing in the record suggests that the IJ's conduct of his hearing evinced the kind of impatience and bias that might be characterized as a violation of due process of law.

         The Board correctly evaluated the new evidence submitted by Mr. Barragan-Ojeda under the standards applicable to a reopening. It correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

         I

         BACKGROUND

         Mr. Barragan-Ojeda was born in Mexico on March 6, 1995 and entered the United States in July 2013 at age 18. He was apprehended at the border and requested asylum. The Department of Homeland Security ("DHS") then placed him in removal proceedings. The IJ continued his case for over a year, in part to give him an opportunity to locate an attorney if he wished to be represented in proceedings.[1] On April 23, 2015, Mr. Barragan-Ojeda appeared pro se before the IJ for an individual merits hearing on his asylum claim. His current attorney asserts in his brief that Mr. Barragan-Ojeda made a preliminary, off-the-record request to the IJ for a closed asylum hearing, but that the IJ denied the request. Members of Mr. Barragan-Ojeda's family were present.

         Before the IJ, Mr. Barragan-Ojeda testified, with the assistance of an interpreter, that he had entered the United States in 2013 to "save [his] life, " which was threatened by a large criminal gang in Mexico called the Caballeros Templarios.[2]His family resides in the Mexican state of Michoacan, where they own land and where his father is a farmer and a proprietor of a liquor store. Members of the gang extorted money from his family from 2012 until 2013, when his father refused to continue paying them. At that point, his father "tried to get us out of the town."[3] Mr. Barragan-Ojeda came to the United States, but his parents elected to stay in the same town in Mi-choacan. Mr. Barragan-Ojeda stated that after he left Mexico, shots were fired through the windows of his parents' home. He also claimed that his family members were victims of extortion. When asked if "all businessmen or all people in the area" were similar targets, he replied, "Yes. Yes. They ask for every business you have, for every car you have, for every motorcycle."[4] His parents had not relocated, he continued, because they "have their whole life there. They have their houses. They have their parcels. They have their land."[5] His family also had not sought government protection because "the government is also joined in with organized crime."[6]

         Mr. Barragan-Ojeda supported his application with two articles in Spanish discussing the murder of his uncle. When asked, he said that he did not know the circumstances of his uncle's death. He also submitted a letter from his father. The letter noted that his uncle had been shot to death in their hometown and that the family was in danger and afraid of the police. It also noted, for the first time, that Mr. Barragan-Ojeda had received a phone call in which he had been "threatened that he would be killed."[7] According to his father, he would be targeted "because he was cooperating with the self-defense groups because he would take ... food to those that are in the movement."[8] When asked by the IJ about this statement, Mr. Barragan-Ojeda clarified that, on one occasion, his grandmother had sent plantains to a group of local people opposing the extortion by the gang, and Mr. Barragan-Ojeda had dropped off the box. Afterwards, he received a threatening phone call, likely because gang informants were part of the group.

         The IJ began an oral ruling in which he denied Mr. Bar-ragan-Ojeda's claim on the basis that the harm he faced was too generalized and not tied to a protected ground; specifically, he had not identified a viable social group. Before finishing his ruling, however, the IJ engaged Mr. Barragan-Ojeda in one final exchange:

Q. Sir, is there anything else you want to tell me concerning your fear of going back to Mexico?
A. It's just that there are many things.
Q. Well, is there any other reason why you fear going back other than what you have told me?
A. What about discrimination for being effeminate?
Q. Well, that doesn't qualify you for asylum. I mean are you saying that you've been mistreated by someone or people discriminate against you because of the way you look?
A. Yes.
Q. But what difficulties have you had?
A. Well, at work, when I would look for work they would tell me that they needed men and not little girls.
Q. I mean do you think, are you a homosexual or not?
A. No.
Q. But you think people perceive you ...

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