Roberto Guerrero-Ramirez v. Robert M. Wilkinson

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 25, 2021
• Docket: 20-3478
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0047n.06

Case No. 20-3478

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 25, 2021 ROBERTO CARLOS GUERRERO- ) DEBORAH S. HUNT, Clerk RAMIREZ, ) ) ON PETITION FOR REVIEW Petitioner, ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION v. ) APPEALS ) ROBERT M. WILKINSON, Acting Attorney ) OPINION General, ) Respondent. )

BEFORE: BOGGS, SUTTON, and NALBANDIAN, Circuit Judges.

SUTTON, Circuit Judge. Roberto Carlos Guerrero-Ramirez crossed into the United States

after traveling from Nicaragua through Central America to Mexico. When he arrived, he sought

asylum, withholding of removal, and protection under the Convention Against Torture. After a

hearing, an immigration judge denied his application, reasoning that he did not offer convincing

corroborating evidence. The Board of Immigration Appeals also denied relief. Because

substantial evidence supports the Board’s decision, we deny Guerrero-Ramirez’s petition for

review.

A 29-year-old Nicaraguan citizen, Guerrero-Ramirez entered the United States in February

of 2019. He sought asylum and other relief from removal. Case No. 20-3478, Guerrero-Ramirez v. Wilkinson

At a hearing before an immigration judge, Guerrero-Ramirez gave this account. He worked

in Nicaragua as a truck driver. When protests broke out in April 2018 over the government’s

handling of social security benefits, he delivered money and medication to dissidents and hid

protestors in his truck’s concealed compartment. After his name surfaced on a government list

identifying protestors, Guerrero-Ramirez left the country for Costa Rica. He returned to Nicaragua

to file a complaint with its Human Rights Commission, but the Commission told him that staying

in Nicaragua remained risky. Guerrero-Ramirez headed north, hitchhiking to Mexico and then

traveling by foot to the United States.

After the hearing, the immigration judge denied his application. While the judge found

him “generally credible,” he was troubled that Guerrero-Ramirez “failed to corroborate significant

details from his testimony with sufficient evidence,” especially the source of the alleged list, proof

that it was a government document, and its meaning. A.R. 85. The court noted that he “failed to

file . . . statements from friends or family” corroborating his story and never offered evidence that

the government list was an official document. Id. While Guerrero-Ramirez said that his

schoolteacher gave him the list, he never produced anything from her to support that account or to

explain where she got the list.

The Board of Immigration Appeals affirmed, explaining that it “agree[d] . . . that

[Guerrero-Ramirez] did not sufficiently corroborate his claim with reasonably available evidence.”

A.R. 13.

We review the Board’s determination and the parts of the immigration judge’s reasoning

it adopted. Al-Saka v. Sessions, 904 F.3d 427, 430 (6th Cir. 2018). We give fresh review to the

Board’s legal conclusions, Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009), and accept its

factual findings “unless any reasonable adjudicator would be compelled to conclude to the

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contrary,” 8 U.S.C. § 1252(b)(4)(B). The burden fell on Guerrero-Ramirez to show that he is a

“refugee” and eligible for asylum. Id. § 1158(b)(1)(B)(i); see also I.N.S. v. Elias-Zacarias, 502

U.S. 478, 481 (1992). Though an applicant’s testimony can be enough on its own, an immigration

judge may require corroborating evidence, even where testimony is “otherwise credible.” 8 U.S.C.

§ 1158(b)(1)(B)(ii). In any event, Guerrero-Ramirez’s application for review must be denied if

“substantial[] evidence” supports the immigration judge’s decision. Khalili, 557 F.3d at 435.

We see no good reason to second-guess this decision. Guerrero-Ramirez’s theory of

asylum was that he appeared on a list of protestors that the government intended to imprison. But

he offered slim evidence to support the theory. The list is a photocopy, its source unclear, its

authenticity unconfirmed. It contains no identifying information. While Guerrero-Ramirez said

that he obtained the list from one of his teachers in Nicaragua, he did not offer a statement from

her or any evidence to buttress the claim—or for that matter any evidence about where she obtained

the list or what it meant. We cannot fault the immigration judge and the Board for finding that

inadequate.

Guerrero-Ramirez’s other evidence does not close the gap. What’s left is a letter from a

friend that does not offer any specifics about Guerrero-Ramirez’s activities in Nicaragua, general

photographs of protestors that do not identify him, and a copy of a human rights report that contains

factual inconsistencies. The immigration judge walked through each of these problems, explaining

that, without authentication and more specifics, the evidence failed to support an asylum claim.

This record does not “compel” a conclusion that Guerrero-Ramirez met his burden to show he is

a refugee. 8 U.S.C. § 1252(b)(4)(B).

Guerrero-Ramirez faults the immigration judge for not giving him an opportunity to offer

corroborating evidence. That argument implicates some tension between Guzman-Vazquez v.

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Barr, 959 F.3d 253, 263 (6th Cir. 2020), and Gaye v. Lynch, 788 F.3d 519, 530 (6th Cir. 2015).

While we are inclined to agree with Judge Thapar’s and Judge Murphy’s reading of Gaye,

Guerrero Ramirez v. Barr, No. 20-3478 (6th Cir. Jun. 23, 2020) (order staying removal pending

review) (Thapar, J., dissenting); Guzman-Vazquez, 959 F.3d at 276 (Murphy, J., dissenting), we

need not resolve the point. Either way, Guerrero-Ramirez’s claim falls short.

The potential need for corroborating evidence, as an initial matter, appears front and center

in the statute. 8 U.S.C. § 1158(b)(1)(B)(ii). The idea that a photocopied list of alleged targets of

government persecution would not need corroboration beyond an applicant’s say-so is hopeful, if

not far-fetched. At any rate, Guerrero-Ramirez received an opportunity at the hearing to provide

evidentiary support for this theory or to explain why it was unreasonable to expect him to provide

support. The government asked him why he did not provide statements supporting his affidavit,

and he replied that “[t]here are letters from people in my country.” A.R. 175. It’s unclear what

letters he was referencing, but the immigration judge considered the sole letter of support in his

asylum application and aptly explained why it did not offer material support. The government

also asked why he did not have an “affidavit or statement from th[e] teacher” describing the

government’s list of protestors. A.R. 160. Guerrero-Ramirez responded that his teacher obtained

the list from Facebook but offered no specifics. No error occurred.

Guerrero-Ramirez insists that the immigration judge should have expressly found that

corroborating evidence was reasonably available. But he failed to advance that argument in front

of the Board. Because only “claims properly presented” to the Board may “be reviewed” by our

court, Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004), the argument is forfeited, see

8 U.S.C. § 1252(d)(1).

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Because Guerrero-Ramirez did not show a well-founded fear of future persecution for

asylum purposes, he does not meet the “more stringent burden” for withholding of removal. See

Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). And because he does not challenge the

Board’s finding with respect to his claim of protection under the Convention Against Torture, he

has forfeited the argument.

For these reasons, we deny the petition for review.