                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2009

Carrera-Garrido v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2321




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 07-2321


                          JOSE CARRERA-GARRIDO,

                                             Petitioner

                                        v.

                           ATTORNEY GENERAL OF
                            THE UNITED STATES,

                                             Respondent


                    On Petition for Review of a Final Order
                      of the Board of Immigration Appeals
                  Immigration Judge: Honorable Daniel Meisner
                               (No. A70-651-466)


                    Submitted Under Third Circuit LAR 34.1(a)
                               December 1, 2008


         Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges

                        (Opinion filed: February 26, 2009)



                                    OPINION

AMBRO, Circuit Judge

     Jose Carrera-Garrido came to the United States from Guatemala in 1992 when he
was 19 years old and applied for asylum on grounds that he was fleeing guerrilla

recruitment efforts and death threats against him. His application “languished” in the INS

Asylum office for more than nine years, Oral Decision of the Immigration Judge 2, during

which time the civil war in Guatemala ended. It was referred to the Immigration Court in

2002, just in time to prevent him from qualifying for cancellation of removal under 8

U.S.C. § 1229b. Cf. Robinson v. Napolitano, No. 07-2977, 2009 WL 223856, at *11 (3d

Cir. 2009) (“This same department[,] whose delay or inaction forecloses [an alien’s]

chance of becoming an American, now so diligently pursues the avenues of her

expulsion.”) (Nygaard, J., dissenting).

       Carrera-Garrido married a Salvadoran national with Temporary Protected Status

and with whom he has two young children who are American citizens (one unfortunately

has serious health problems). Carrera-Garrido filed an updated asylum application and

testified at his hearing that he fears criminal gangs will target him on return to Guatemala

because his prior residence in the United States will suggest that he is wealthy and having

children will make him a more vulnerable target. He has lived, worked, and paid taxes in

this country for 16 years.

       The Immigration Judge ordered Carrera-Garrido removed and Carrera-Garrido

appealed to the Board of Immigration Appeals, challenging the IJ’s rulings and raising a

due process argument regarding the state of the record. The BIA rejected Carrera-

Garrido’s appeal, adopting the IJ’s opinion. Where the BIA substantially adopts the

findings of the IJ, we review both the IJ’s and BIA’s decisions. Jarbough v. Att’y Gen.,

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483 F.3d 184, 191 (3d Cir. 2007). 8 U.S.C. § 1252 grants us jurisdiction. On his petition

for review, Carrera-Garrido challenges the IJ’s rulings and the BIA’s rejection of his due

process argument. In addition, we consider his motion to expand the record.1

       To establish eligibility for asylum, Carrera-Garrido must show a well-founded fear

of future persecution on account, among others, of political opinion or membership in a

particular social group. 8 U.S.C. §§ 1101(a)(42)(A) & 1158(b)(1)(A). Showing past

persecution triggers a rebuttable presumption of a well-founded fear of future persecution.

Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 345 (3d Cir. 2008). Even if an asylum

applicant fails to show past persecution, he can still show a well-founded fear of future

persecution if he can show that his fear is “subjective and objectively reasonable.” Id. at

346. The former is obvious, and to show objective reasonableness he must demonstrate

that there is a “reasonable possibility” he will suffer the feared persecution upon return to

Guatemala. Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007); 8 C.F.R.

§ 208.13(b)(2)(i)(B).

Failure to Apply Proper Standard

       The IJ rejected Carrera-Garrido’s asylum claim on the ground that his fear of

persecution was not objectively reasonable. Oral Decision of the Immigration Judge 5.

In doing so, he failed to apply the “reasonable possibility” standard. He did not explicitly

set out the applicable standard anywhere in his opinion. The only intimation of what

       1
        He also applied for withholding of removal and relief under the Convention
Against Torture. As he raises no issue regarding these claims in his brief, we do not
address them.

                                              3
standard he applied, if any, appears in the following excerpt from his opinion: Carrera-

Garrido “has not established any nexus between his situation and the murder of his cousin

in 1988 . . . . Nor has [he] established that if he returned to Guatemala he would meet the

same fate as his [other] cousin . . . did.” Id. at 4 (emphases added). Carrera-Garrido did

not need to “establish” such a nexus; instead, he only needed to show that there is a

“reasonable possibility” that it exists. Cf. Guo v. Ashcroft, 386 F.3d 556, 563–64 (3d Cir.

2004). Nothing in the IJ’s opinion suggests that he applied the proper standard. In this

regard, we remand for the agency to apply that standard. Silva-Rengifo v. Att’y Gen., 473

F.3d 58, 71 (3d Cir. 2007).

A Social Group Claim

       At his hearing, Carrera-Garrido testified that he fears return to Guatemala as a

former resident of the United States and father of two because criminal gangs will believe

he has money and his children will make the gangs “feel that they can . . . make [him]

pay.” He submitted a State Department 2005 country report documenting “impunity for

criminal activity” in Guatemala.

       The IJ noted Carrera-Garrido’s fear of being targeted because of his prior

residence in the United States but did not discuss whether it warranted relief. Had he

done so, the IJ would have analyzed whether there is a well-founded fear by Carrera-

Garrido of future persecution on account of membership in a particular social group.

That social group is former United States residents with children. Because this group is

based on shared past experience, it likely falls within the ambit of our holding that “those

                                             4
who possess immutable characteristics such as . . . prior position, status or condition” may

be members of a particular social group. Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir.

2005); see also Gomez-Zuluaga, 527 F.3d at 345.

       Carrera-Garrido did not specifically assert a social group claim as a ground for

asylum before the IJ and did not check the box on his asylum application indicating

membership in a particular social group. The BIA did not mention any potential social

group issue. Although Carrera-Garrido’s brief to our Court states that “the [Department

of State] Report used in the hearing indicated that persons returning from the United

States are a particular target since they are perceived by criminal elements to have

money,” Appellant’s Br. 6, it does not specifically assert a social group claim.

       Although the failure of Carrera-Garrido to develop this claim before the

administrative reviewers or explicitly in our Court would normally result in waiver, see,

e.g., Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993), the asylum context is different.

The IJ and BIA “have certain obligations under international law to extend refuge to those

who qualify for such relief” and “bear the responsibility of ensuring that refugee

protection is provided where such protection is warranted by the circumstances of an

asylum applicant’s claim.” In re S-M-J-, 21 I. & N. Dec. 722, 723 (BIA 1997); see also

Mulanga v. Ashcroft, 349 F.3d 123, 135 (3d Cir. 2003) (recognizing that “asylum . . .

cases are different [because the IJ is responsible for making sure that] qualified applicants

are provided refuge in accordance with the obligations imposed by international law”).

       It may be the case that Carrera-Garrido’s testimony concerning his fear of being

                                              5
targeted by criminal gangs based on his former United States residency and status as a

father of two should have put the IJ, who discussed these fears, and the BIA on notice that

Carrera-Garrido was stating a social group claim for asylum alongside his other asylum

claims. In the asylum context, Carrera-Garrido’s failure to raise explicitly a social group

claim in his petition for review to our Court does not prevent us from addressing it where

his brief states the claim with sufficient clarity to raise a question whether it should have

been addressed by the agency.

       We remand this issue to the BIA to consider whether it or the IJ should have

addressed the claim and, if so, whether it warrants relief.

The Due Process Claim

       Carrera-Garrido argued to the BIA that he was denied due process because the

record before the IJ was incomplete. He argues that the record omits items from any

proceedings conducted before an initial IJ, from whom the case was later transferred to

the IJ who issued the ruling on Carrera-Garrido’s application. Carrera-Garrido does not

assert that any testimony is missing from the record nor state what the substance of such

testimony might have been or how it might have helped his case. To succeed on a

challenge based on the state of the record, an alien must show both incompleteness and

prejudice. Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir. 2005). Carrera-Garrido has

shown neither.

The Motion to Expand the Record

       Carrera-Garrido motioned to add a 2006 country report to the record to show that

                                              6
conditions described in 2005 remain the same. He also provided the Court with various

articles describing the guilty plea of his former counsel before the IJ and BIA to criminal

charges of immigration fraud for lying about the length of residency of alien clients. We

deny this motion without prejudice to Carrera-Garrido’s right to bring it on remand before

the BIA.

Conclusion

       We deny the petition for review of the BIA’s decision as to the due process claim,

grant the petition for review of the BIA’s decision as to the asylum claims (resulting in a

remand to the BIA), and deny the motion to expand the record without prejudice to

Carrera-Garrido’s right to bring it on remand before the BIA. On remand, the BIA should

consider whether the asylum claims include a status group claim and apply the proper

standard of review.




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