               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                FILE NAME: 15A0261N.06

                                     CASE NO. 14-3204

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 JOSE LUIS GARCIA-GARCIA,                          )
                                                                                 FILED
                                                   )                        Apr 10, 2015
       Petitioner,                                 )                   DEBORAH S. HUNT, Clerk
                                                   )
               v.                                  )   ON PETITION FOR REVIEW OF
                                                   )   AN ORDER OF THE BOARD OF
 ERIC HOLDER, JR., Attorney General,               )   IMMIGRATION APPEALS
                                                   )
       Respondent.                                 )
                                                   )

Before: BATCHELDER, MOORE, and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Jose Luis Garcia-Garcia petitions this

court for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of

the denial of his motion to withhold removal. We DENY the petition for review.

                                              I.

       Garcia is a native of Guatemala who entered the United States without inspection on or

about January 1, 2000. He appeared before an immigration judge and conceded removability but

sought withholding of removal, claiming that he fears persecution if returned to Guatemala on

the basis of his membership in a persecuted social group, namely, former gang members. Garcia

claimed that because his former gang associates know him and because he has a distinguishing

gang tattoo (a tear drop under his eye), they or others will persecute him if he returns. He

testified at his hearing and produced a letter from his parents asserting that he was in a

Guatemalan gang.

       The immigration judge denied withholding, concluding first that Garcia had failed to

persuade her that he is likely to be recognized or persecuted if returned to Guatemala. The
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Garcia-Garcia v. Holder, Jr.

immigration judge concluded as well that Garcia had failed to establish that he is not barred from

eligibility for withholding of removal because of involvement in serious nonpolitical crime as a

member of a gang in Guatemala. The BIA dismissed the appeal, finding that Garcia was barred

from eligibility for withholding, and also concluding that Garcia had failed to show a likelihood

of persecution or that he could not relocate to another part of Guatemala to avoid persecution.

He seeks review here.

                                                II.

         Garcia argues that the immigration judge and the BIA erred by finding that he had failed

to provide sufficient corroborating evidence to support withholding.             Specifically, the

immigration judge found Garcia’s testimony “basically credible” but “too general” and “not

sufficiently detailed to sustain his burden without corroboration.” And the immigration judge

found the corroborating evidence “slim,” explaining that Garcia “provided no details concerning

his involvement with the gang even after questioned extensively by his attorney and the [c]ourt

on this issue”; “[h]e provided no details concerning his initiation”; “[h]e gave no information

essentially about what he did with the gangs except to say that they fought”; “[h]e provided no

information about how they fought or the results of the fights[,] even after asked repeatedly”; and

he “provided no details about who were the members of the leadership of the gang, where they

were located, how he knows them, [or] how he would be recognized.” Consequently, the

immigration judge, noting that she is forbidden from speculating, held that Garcia failed to

persuade her or produce sufficient proof that, upon return, he would likely be recognized or

persecuted.

         Garcia appealed to the BIA, which dismissed the appeal, concluding (as an alternative

basis) that Garcia “ha[d] not provided the corroboration necessary to sustain his burden of

proof.” The BIA cited and relied on 8 U.S.C. § 1229a(c)(4)(B) and Urbina-Mejia v. Holder, 597
No.14-3204
Garcia-Garcia v. Holder, Jr.

F.3d 360, 368 (6th Cir. 2010), which the BIA described accurately, albeit somewhat awkwardly,

as “affirming the Immigration Judge’s determination that Urbina-Mejia did not provide sufficient

corroboration to meet his burden to prove that he would be more likely than not to suffer

persecution upon removal even where an expert witness testified.” The Urbina-Mejia opinion

itself goes one step further in its explanation, pointing out that “section 1252(b)(4) instructs that

we are prohibited from reversing the agency’s finding ‘with respect to the availability of

corroborating evidence . . . unless [we] find[] . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.’” Id. (quoting 8 U.S.C. § 1252(b)(4)).

         On appeal, Garcia argues that the BIA’s and immigration court’s decisions are in error

because the immigration judge never told him what corroborating evidence was missing or

allowed him to explain why he did not provide it, thus depriving him of due process. He relies

on the Ninth Circuit’s holding in Ren v. Holder, 648 F.3d 1079, 1091-92 (9th Cir. 2011) (“An

applicant must be given notice of the corroboration required, and an opportunity to either provide

that corroboration or explain why he cannot do so.” (footnote omitted)). While Garcia notes that

our opinion in Pulatov v. Holder, 516 F. App’x 455, 459 n.5 (6th Cir. 2013), cited Ren in a

footnote, he fails to mention that Pulatov also cited the Seventh Circuit’s disagreement in

Abraham v. Holder, 647 F.3d 626, 633 (7th Cir. 2011) (holding that 8 U.S.C. § 1158(b)(1)(B)(ii)

does not create an additional notice-and-opportunity requirement). More importantly, Pulatov,

516 F. App’x at 459 n.5, left this an “open question” because “that [lack-of-notice-and-

opportunity] argument was not presented to the BIA, and so ha[d] not been properly exhausted.”

Garcia also failed to raise this argument to the BIA and, therefore, failed to exhaust it and

preserve it for appeal. Id.; see also Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004).

         Garcia argues as well that he presented sufficient evidence to compel the conclusion that

he would be persecuted upon his return to Guatemala, and that at the very least, he is entitled to a
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Garcia-Garcia v. Holder, Jr.

remand to permit the immigration judge to rule on this claim. But the immigration judge

explicitly held that Garcia had failed to carry his burden in this regard, and the BIA, while not

outright affirming the immigration judge’s ruling, thoroughly discussed it and explicitly stated

that if it were to reach this issue, it would affirm. Garcia’s claim is without merit.

         Finally, the immigration judge held, and the BIA explicitly affirmed—and, indeed, based

its dismissal of Garcia’s appeal on this conclusion—that Garcia had failed to prove that he was

not barred from eligibility for withholding of removal because of his involvement in serious

nonpolitical criminal activity in Guatemala. Garcia admitted both that he had been involved in

gang fights that included the use of knives and beating people in the face, and that his gang

activity had had no political aspect. The record contains substantial evidence to support the

conclusion that Garcia is not eligible for withholding of removal.

                                                 III.

         For the foregoing reasons, we DENY the petition for review.
