Amezola-Garcia v. Lynch

846 F.3d 135, 645 F. App'x 368, 2016 FED App. 0235P, 2016 U.S. App. LEXIS 17043, 2016 WL 7670892
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 11, 2016
DocketNo. 15-3328
StatusPublished
Cited by19 cases

This text of 846 F.3d 135 (Amezola-Garcia v. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Amezola-Garcia v. Lynch, 846 F.3d 135, 645 F. App'x 368, 2016 FED App. 0235P, 2016 U.S. App. LEXIS 17043, 2016 WL 7670892 (6th Cir. 2016).

Opinion

OPINION

ROGERS, Circuit Judge.

Ramon Amezola-Garcia, a Mexican citizen who was ordered removed for being present in the United States without having been admitted or paroled, appeals the Board of Immigration Appeals’s (“BIA’s”) denial of his applications for withholding of removal and voluntary departure. He primarily argues that the BIA erred by sending his case to a single-member panel for review rather than to a three-member panel, by rejecting his argument that his familial relationship with his murdered brother-in-law will subject him to future persecution in Mexico, and by mischarac-terizing the record in its voluntary-departure determination. While the Government opposes most of Amezola-Garcia’s petition, it concedes that the BIA’s interpretation of the record in its voluntary-departure determination is problematic and warrants a remand. In light of the Government’s concession, the voluntary-departure determination will be remanded to the BIA for reconsideration of its decision. The remainder of Amezola-Garcia’s petition is without merit.

Amezola-Garcia unsuccessfully attempted to enter the United States in 1996 by presenting the resident alien card of another. He agreed to return to Mexico in lieu of exclusion proceedings. In 1997, Amezola-Garcia successfully entered the United States without being admitted or paroled. Since that 1997 entry, Amezola-Garcia has traveled to Mexico and reentered the United States without being admitted or paroled at least four different times (in 1998, 2001, 2003, and 2006).

In 2011, the Department of Homeland Security commenced removal proceedings [138]*138against Amezola-Garcia. Before the Immigration Judge (“IJ”), Amezola-Garcia admitted that he was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without having been admitted or paroled. In another appearance before the IJ, Amezola-Garcia submitted an application for withholding of removal and relief under the Convention Against Torture (“CAT”). Because the one-year deadline to seek asylum had elapsed, he did not apply for asylum. Additionally, in the merits hearing before the IJ, Amezola-Garcia requested voluntary departure.

Amezola-Garcia’s application for withholding of removal and CAT relief states that he fears he will be harmed and tortured on account of his membership in a particular social group if he returns to Mexico. He identifies his particular social group as “family which has been targeted by persons the government of Mexico cannot or will not control.” The application lists Amezola-Garcia’s parents and fifteen siblings as the members of his family, although later testimony indicated that it is not clear exactly how many siblings he has. With the exception of two brothers who live in the United States, his parents and all of his remaining siblings (one sister is deceased) live in Mexico. The application states that Amezola-Garcia’s brother-in-law was a member of a “government organization of defense for Mexico” and was murdered in 2009 because he and his colleagues were investigating “criminal organizations” on behalf of the Mexican government. The application further states that “the family still feels scared and worries] about repercus[s]ions from this investigation.” The application also provides that cartels and people from Amezo-la-Garcia’s hometown who are involved in criminal activities tend to threaten returnees from the United States. Finally, the application lists all of Amezola-Garcia’s entries into the United States, but does not mention the 1996 incident where he was turned away at the border.

In the merits hearing before the IJ, while Amezola-Garcia first described his brother-in-law’s murder as an “assassination,” he later admitted that he did not know who killed his brother-in-law or why and that an investigation into the murder is still ongoing. Amezola-Garcia also stated that he did not know what type of work his brother-in-law did for the Mexican government, other than that “it was something that had to do with defense” and was not continuous work. When asked whether he feared if something might happen to him because of what happened to his brother-in-law, Amezola-Garcia responded “[w]ell, it could happen or not. One never knows.” Amezola-Garcia also confirmed that he was never harmed in Mexico and that no one in his family (other than his deceased brother-in-law) has been threatened or harmed. However, he stated that he feared that he would be attacked along the way if he attempted to return to Mexico. When the IJ then asked “[s]o basically you’re in the same shoes as anybody else from Mexico who has to return home,” Amezola-Garcia responded “[y]es.” Lastly, Amezola-Garcia testified that he did not include his 1996 attempted entry in his application because he forgot about the incident when filling out the application.

The IJ denied Amezola-Garcia’s request for voluntary departure and his application for withholding of removal and CAT relief. First, the IJ found that Amezola-Garcia’s failure to demonstrate that he has been a person of good moral character for the past five years precluded him from being permitted to depart voluntarily. The IJ reasoned that Amezola-Garcia lacked good moral character because he “prevaricated intentionally” with regard to his application for withholding of removal: His testi[139]*139mony .was often inconsistent with his application regarding both his brother-in-law’s death and the order in which his siblings were born, leaving the IJ to conclude that “he has made up his story out of absolutely nothing.” The IJ then appeared to state that his lack of good moral character also precluded him from receiving withholding of removal.

Next, the IJ rejected Amezola-Garcia’s application for withholding of removal because Amezola-Garcia’s testimony was not credible. The IJ found Amezola-Garcia’s testimony troubling due to its lack of detail, the absence of corroborating statements or testimony from his relatives, and the inconsistencies with his application. The IJ also found that Amezola-Garcia had not established that he would more likely than not be harmed on account of his family membership if he returned to Mexico. The IJ pointed to the fact that his remaining family members in Mexico have not been harmed or threatened following his brother-in-law’s death and that Amezo-la-Garcia has voluntarily returned to Mexico on a number of occasions. Similarly, the IJ found that Amezola-Garcia failed to demonstrate eligibility for CAT relief because there is no evidence that he would be harmed by, or with the acquiescence of, the Mexican government.

Amezola-Garcia appealed to the BIA. Amezola-Garcia’s brief to the BIA incorporated a motion for the appeal to be considered by a three-member panel and a request that proceedings be remanded for the IJ to clarify his denial of withholding of removal based on bad moral character. A single-member panel of the BIA, rather than a three-member panel, then affirmed the IJ’s decision and dismissed the appeal. The BIA did not rely on the IJ’s adverse credibility determination to affirm the denial of withholding of removal; rather, the BIA found that Amezola-Garcia’s withholding-of-removal. claim failed because he demonstrated neither past persecution nor a reasonable fear of future persecution. The BIA explained that the reasonableness of his claim of future persecution was undermined by the fact that his remaining family members in Mexico have not been harmed, and by the fact that he voluntarily returned to Mexico multiple times.

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846 F.3d 135, 645 F. App'x 368, 2016 FED App. 0235P, 2016 U.S. App. LEXIS 17043, 2016 WL 7670892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amezola-garcia-v-lynch-ca6-2016.