Manuel Orellana Alvarado v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 9, 2022
• Docket: 22-1193
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1441

MANUEL ANTONIO ORELLANA ALVARADO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

No. 22-1193

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: October 28, 2022 Decided: December 9, 2022

Before WYNN and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge. USCA4 Appeal: 22-1193 Doc: 50 Filed: 12/09/2022 Pg: 2 of 13

Petition for review denied in part and dismissed in part by unpublished per curiam opinion.

ARGUED: Daniel Warren Thomann, DANIEL THOMANN, P.C., Chicago, Illinois, for Petitioner. Jessica Danielle Strokus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Anthony C. Payne, Assistant Director, Lance L. Jolley, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Petitioner Manuel Orellana Alvarado seeks review of two orders of the Board of

Immigration Appeals (“Board”) denying his petition for withholding of removal and

affirming the Immigration Judge’s denial of relief under the Convention Against Torture

(“CAT”). We conclude that his challenges are without merit in light of the steep standard

of review.

Orellana Alvarado also contends that each Board decision was void ab initio

because each was rendered by a Board member illicitly serving beyond their appointed

term. But we lack jurisdiction to consider that argument because Orellana Alvarado failed

to exhaust it before the Board. Accordingly, we deny the petition in part and dismiss it in

part.

I.

Orellana Alvarado is a native and citizen of Honduras who has spent time in the

United States sporadically since 1990, leading to three separate terms of imprisonment for

illegal reentry. Following the completion of his first such sentence, Orellana Alvarado was

removed to Honduras in April 2013.

In January 2014, Orellana Alvarado became a licensed cab driver in Honduras.

Shortly thereafter, the MS-13 gang began to extort money from him weekly as a condition

of permitting him to drive his cab. Armed gang members also forced Orellana Alvarado to

give them rides, usually without pay. On one occasion, gang members got into his taxi at

gunpoint, struck him with a gun, and forced him to drive them while they kidnapped

another man. At times, gang members threatened to kill him.

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The record supports that such extortion and violence directed at transportation

workers was not uncommon in Honduras at the time. One 2019 news report stated that “an

estimated 1,500 Hondurans driving buses or taxis [had] been murdered” since 2010. A.R.

584. 1

Orellana Alvarado witnessed two such murders firsthand in May and August 2014.

The second murder was of Orellana Alvarado’s relative who had been forced to work for

the gang but had decided to stop cooperating. Nobody was arrested for either murder that

Orellana Alvarado witnessed.

After the August 2014 murder of his relative, Orellana Alvarado stopped driving his

taxi and fled Honduras for the United States. He was arrested, served another sentence for

illegal reentry, and was again removed.

Shortly after he returned to Honduras in 2017, Orellana Alvarado was on the street

when he recognized some armed gang members, who told him to leave the area, or they

would kill him. Apparently, a gang meeting was about to take place there.

Orellana Alvarado decided to again flee to the United States, reentering in

December 2017. Once again, he was arrested and served a sentence for illegal reentry, after

which he was transferred to immigration detention. Accordingly, he has been detained

since late 2017. He has not heard from the gang during that time. Nevertheless, he testified

that the gang members “don’t forget anything” and that if he returns to Honduras, “[t]hey’re

going to kill [him].” A.R. 234.

Citations to the “A.R.” refer to the Certified Administrative Record filed by the 1

parties in this case.

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In March 2018, an asylum officer concluded that Orellana Alvarado had a

reasonable fear of persecution or torture if removed to Honduras and referred him to the

Immigration Court for further proceedings. Before the Immigration Court, Orellana

Alvarado pursued claims for withholding of removal and protection under CAT. His

proposed particular social group for the withholding-of-removal claim was “Honduran

former taxi or transit drivers and/or business owners who have cooperated with MS-13 and

subsequently stopped.” A.R. 75.

The Immigration Judge initially granted withholding of removal to Orellana

Alvarado. But in March 2021, a three-member panel of the Board sustained the

Government’s appeal as to that claim and remanded for consideration of the CAT claim.

On remand, the Immigration Judge denied Orellana Alvarado’s application for CAT relief.

The Board affirmed in a single-member decision in December 2021. Orellana Alvarado

petitioned this Court for review of both Board decisions.

II.

Orellana Alvarado first alleges that the Board’s decisions are inherently flawed due

to the makeup of the panels that rendered the decisions. The three-member panel that issued

the March 2021 Board decision included one temporary Board member who was serving

her second six-month term, and the December 2021 decision was rendered by a single

member also serving her second six-month term. Orellana Alvarado contends that the

presence of these members makes both decisions “void ab initio” because, in his view,

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temporary Board members cannot serve more than one six-month term per lifetime. 2

Opening Br. at 12. But we lack jurisdiction to consider this argument because Orellana

Alvarado failed to exhaust it before the Board.

“A court may review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “We have

interpreted this provision as a jurisdictional bar, holding that a noncitizen’s failure to

exhaust administrative remedies as to a particular claim bars judicial review of that claim.”

Perez Vasquez v. Garland, 4 F.4th 213, 228 (4th Cir. 2021). Generally, in order for a

petitioner to have administratively exhausted a claim, “‘the [Board of Immigration

Appeals] [must] ha[ve] issued a definitive ruling on the issue raised in the petition for

review’—even where the Board does so sua sponte, without the petitioner actually raising

that issue before the Board.” Id. (quoting Cabrera v. Barr, 930 F.3d 627, 633 (4th Cir.

2019)). Here, there is no dispute that Orellana Alvarado did not raise this matter before the

Board, and that the Board did not address the matter in the first instance.

Nevertheless, Orellana Alvarado contends that he did not need to administratively

exhaust the temporary-member claim because noncitizens need pursue only those

“remedies available to [them] as of right.” 8 U.S.C. § 1252(d)(1) (emphasis added). He

notes that, by the time he found out which Board member or members issued the decisions,

2 The regulation at issue provides that “[t]he Director may in his discretion designate” certain officials “to act as temporary Board members for terms not to exceed six months.” 8 C.F.R. § 1003.1(a)(4). The Government contests Orellana Alvarado’s view of the regulation and argues that it simply limits temporary Board members to serving six months in any given term.

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his only recourse was to file a motion to reopen or for reconsideration. And he contends

that such a motion cannot properly be understood to be available “as of right” because if it

is, then noncitizens must always be required to file such a motion, even when the Board

has already spoken to the issue—a requirement that would be a pointless formality in the

mine-run of cases.

To be sure, applicants “need not file a motion to reconsider the same argument the

[Board] has already rejected in order to exhaust their remedies.” Cabrera, 930 F.3d at 633;

see Shepherd v. Holder, 678 F.3d 1171, 1177 (10th Cir. 2012) (collecting cases). But

“[o]nly after the [Board] has rendered a decision on an argument or claim is that argument

or claim said to have been exhausted.” Cabrera, 930 F.3d at 631. 3 As noted, that did not

happen here.

Orellana Alvarado contends it would have been fruitless to challenge the validity of

the Board members’ appointments before those very same Board members. Even assuming

that is true, however, the exhaustion requirement applies even if the petitioner “is almost

assuredly not going to prevail.” Id. at 634; see id. (“An alien must exhaust all administrative

remedies available to him, even if he reasonably predicts that these remedies are unlikely

to do him any good.” (quoting Popal v. Gonzales, 416 F.3d 249, 253 (3d Cir. 2005))).

3 See also Vasquez v. Garland, No. 21-2393, 2022 WL 2355488, at *1 (4th Cir. June 30, 2022) (per curiam) (concluding that this Court lacked jurisdiction to consider an argument where the petitioner filed a motion for reconsideration before the Board but did not raise that particular argument); Merino-Castro v. Lynch, 650 F. App’x 831, 832 (4th Cir. 2016) (per curiam) (same).

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Because Orellana Alvarado failed to raise his challenge to the presence of certain

temporary Board members before the Board, we lack jurisdiction to consider it.

III.

That brings us to the merits of the Board’s decisions to deny Orellana Alvarado

withholding-of-removal and CAT relief. 4 “When[, as with the March 2021 decision,] the

[Board of Immigration Appeals] issue[s] its own opinion without adopting the

[Immigration Judge]’s opinion, the [Board]’s decision constitutes the final order of

removal, and accordingly we review that opinion and not the opinion of the [Immigration

Judge]. When, as [with the December 2021 decision], the [Board] affirms the [Immigration

Judge]’s decision with an opinion of its own, we review both decisions.” Garcia Hernandez

v. Garland, 27 F.4th 263, 266 n.* (4th Cir. 2022) (citation and internal quotation marks

omitted). We must uphold the Board’s decision “unless it is manifestly contrary to the law

and an abuse of discretion.” Bedoya v. Barr, 981 F.3d 240, 245 (4th Cir. 2020) (internal

quotation marks omitted). The Board abuses its discretion when it “does not provide a

reasoned explanation for its decision, . . . distorts or disregards important aspects of an

applicant’s claim,” or “mak[es] an error of law.” Id. (internal quotation marks omitted).

“We review factual findings for substantial evidence, and we will not disturb factual

findings unless ‘any reasonable adjudicator would be compelled to conclude to the

contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). “Thus, ‘even if the record plausibly

4 Two days before oral argument, the Government filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) raising an issue related to the Supreme Court’s decision in Nasrallah v. Barr, 140 S. Ct. 1683 (2020). We do not reach the Government’s last- minute argument because we conclude that the petition is without merit in any event.

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could support two results,’ reversal is appropriate only where the evidence ‘not only

supports [the petitioner’s] conclusion, but compels it.’” Nolasco v. Garland, 7 F.4th 180,

186 (4th Cir. 2021) (quoting Tang v. Lynch, 840 F.3d 176, 180 (4th Cir. 2016)). “Finally,

we review legal rulings de novo.” Bedoya, 981 F.3d at 245.

A.

Applicants seeking withholding of removal “must establish that they have been

subjected to past persecution or have a well-founded fear of future persecution on account

of race, religion, nationality, membership in a particular social group, or political opinion.”

Perez Vasquez, 4 F.4th at 221 (internal quotation marks and alterations omitted); see id. at

221 n.7 (noting that this standard applies to withholding of removal). Where, as here, the

applicant relies on his membership in a particular social group, he “must establish ‘that the

group is (1) composed of members who share a common immutable characteristic,

(2) defined with particularity, and (3) socially distinct within the society in question.’”

Nolasco, 7 F.4th at 187 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A.

2014)).

The Board concluded that Orellana Alvarado’s proposed particular social group of

“Honduran former taxi or transit drivers and/or business owners who have cooperated with

MS-13 and subsequently stopped” failed to satisfy the third requirement, social distinction.

A.R. 75. While recognizing the significant evidence in the record of gangs targeting current

transportation drivers, the Board concluded that the cited “evidence, though deeply

disturbing, shows only that Honduran gangs punish drivers who keep driving after refusing

to pay extortion demands; it does not show that gangs (or anyone else) take notice of former

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drivers—people who, like the applicant, quit driving rather than turn over their income to

gang members.” A.R. 75–76.

The Board’s finding was supported by substantial evidence. Certainly, it is not

difficult to think of reasons a gang might choose to target those who ceased cooperating by

stopping driving altogether just as the gang may target those who continue to drive but

refuse to pay extortion. But such speculation cannot overcome a deficit in record evidence.

And here, most of the evidence Orellana Alvarado points to is at best ambiguous about

whether the targeted driver planned to cease cooperating by ceasing payment or by ceasing

driving.

The most on-point evidence Orellana Alvarado cites is an affidavit in which his

cousin avers, “If I ever want to stop driving a taxi, my options are leave the country or be

killed.” A.R. 425. This statement provides some support for the notion that the gang

specifically targets former taxi drivers. But it could also be read to mean that gangs view

former taxi drivers as belonging to the same group as current taxi drivers who cease

cooperating in other ways. 5 Cf. Nolasco, 7 F.4th at 190 (noting record evidence suggesting

that Salvadoran society views former gang members as “‘forever ruined’ because they

5 Orellana Alvarado urges us to disregard the particular social group’s use of the word “former” as “superfluous,” and thus to consider the evidence related to taxi drivers who continue to drive but cease cooperating as relevant to former taxi drivers like himself. Opening Br. at 20. But it is up to a counseled petitioner to define his particular social group. Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018); cf. Arevalo Quintero v. Garland, 998 F.3d 612, 635 (4th Cir. 2021) (W-Y-C- does not apply to pro se asylum seekers). And here, Orellana Alvarado’s counsel chose to define the group to include the word “former”—presumably to avoid potential immutability issues with defining a group to include current taxi drivers. See Canales-Rivera v. Barr, 948 F.3d 649, 657 (4th Cir. 2020).

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never stop being part of the gang and therefore ‘can’t retire,’ suggesting a lack of distinction

between active and former members”).

More importantly, “group recognition must be determined by the perception of

society as a whole, rather than ‘solely by the perception of an applicant’s persecutors.’” Id.

at 189 (quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 218 (B.I.A. 2014)). And Orellana

Alvarado has pointed to no evidence that Honduran society as a whole views former taxi

drivers who have ceased cooperating with MS-13 as a distinct group.

Accordingly, we deny Orellana Alvarado’s petition as to his withholding-of-

removal claim.

B.

Orellana Alvarado’s CAT claim fares no better. “To obtain protection from removal

under the CAT, [a p]etitioner must show ‘that it is more likely than not that he will be

tortured if removed’ to Honduras, and ‘that this torture will occur at the hands of [the]

government or with [its] consent or acquiescence.’” Moreno-Osorio v. Garland, 2 F.4th

245, 256 (4th Cir. 2021) (emphasis added) (quoting Martinez v. Holder, 740 F.3d 902, 913

(4th Cir. 2014), as revised (Jan. 27, 2014)).

As the Board noted, the record lacks evidence establishing a more-likely-than-not

probability that Orellana Alvarado will face torture upon his removal to Honduras.

Although he was threatened in 2017—three years after he ceased driving his taxi, and three

years before his testimony in this case—the record is ambiguous as to whether that threat

was related to his status as a former taxi driver or whether he was simply in the wrong

place at the wrong time, namely, near the location of an apparent gang meeting. And while

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Orellana Alvarado’s expert noted ways in which the gang could track Orellana Alvarado

down upon his return to Honduras, we cannot say that the record compels the conclusion

that the gang has the desire to do so. According to the record before us, Orellana Alvarado

has not been contacted by MS-13 since 2017; the gang also has not targeted or contacted

his family members in Honduras, even though Orellana Alvarado’s expert noted that is

“usually” how gangs communicate threats to those who have left the country; and Orellana

Alvarado has not yet tried relocating within the country. A.R. 294. Moreover, as discussed,

there is very limited record evidence that the gang targets taxi drivers who cease driving,

which Orellana Alvarado did eight years ago.

Orellana Alvarado contends the Immigration Judge should have reopened the record

on remand and permitted him to provide updated evidence about whether MS-13 had

contacted him in the year between his July 2020 testimony and the Immigration Judge’s

second decision in July 2021. But, as the Board noted in rejecting this argument, Orellana

Alvarado “does not proffer or describe in any meaningful detail what information the

additional evidence would have contained.” A.R. 6. Nor did his counsel take the

Immigration Judge up on her offer for counsel to file a motion to introduce new evidence.

And in this appeal, Orellana Alvarado has never actually asserted that he has been

contacted by the gang in the years since he was last in Honduras in 2017. So he points to

no evidence that the Immigration Judge failed to develop.

We conclude that the Board did not abuse its discretion in affirming the dismissal

of CAT relief.

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IV.

For the foregoing reasons, the petition is

DENIED IN PART AND DISMISSED IN PART.