December 1, 2016
for Review of an Order of the Board of Immigration Appeals.
Posner, Ripple, and Rovner, Circuit Judges.
Ripple, Circuit Judge.
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
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
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.
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.
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. 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.
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.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." 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." 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." His family also had not sought government
protection because "the government is also joined in
with organized crime."
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." 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." 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.
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?
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?
Q. But you think people perceive you ...