Rosendo Alvarez-Hernandez v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 5, 2023
• Docket: 22-3137
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0010n.06

No. 22-3137

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED ROSENDO ALVAREZ-HERNANDEZ, Jan 05, 2023 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS Respondent. ) )

Before: SILER, BATCHELDER, and KETHLEDGE, Circuit Judges.

KETHLEDGE, Circuit Judge. Rosendo Alvarez-Hernandez petitions for review of the

Board of Immigration Appeals’ denial of his applications for asylum, withholding of removal, and

protection under the Convention Against Torture. We deny his petition.

I.

Rosendo Alvarez-Hernandez, a citizen of Mexico, entered the United States illegally in

2009. The government began removal proceedings in 2013, and Alvarez-Hernandez conceded

removability. Around the same time, according to Alvarez-Hernandez, the “La Familia” gang

began targeting his family in Mexico. They threatened Alvarez-Hernandez’s father with a gun and

robbed him of 40,000 pesos; and they attacked and kidnapped his brother until their father agreed

to pay a ransom. Alvarez-Hernandez thereafter filed applications for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT), alleging that, if he returned

to Mexico, La Familia would target him next. No. 22-3137, Alvarez-Hernandez v. Garland

An immigration judge denied Alvarez-Hernandez’s applications in an opinion that cited,

among other things, “the legal standards contained in the standard language addendum.” Alvarez-

Hernandez received a copy of the IJ’s decision which did not include that addendum. He then

filed a “partial brief in support of appeal” with the Board of Immigration Appeals, in which he

asked the Board to provide the IJ’s complete decision and reset the briefing schedule. Alvarez-

Hernandez also argued that the IJ’s failure to provide the addendum violated due process and that

the Board should reverse the IJ’s decision on its merits. The Board declined to provide the legal

addendum or reset the briefing schedule and issued an opinion affirming the IJ’s denial of relief.

This petition followed.

II.

When the Board issues its own opinion rather than simply affirming the immigration

judge’s decision, we review the Board’s decision directly. Umaña–Ramos v. Holder, 724 F.3d

667, 670 (6th Cir. 2013). We review legal questions de novo and uphold the agency’s factual

findings “unless any reasonable adjudicator would be compelled to conclude the contrary.” Id.

Alvarez-Hernandez argues primarily that the Board denied him due process by deciding

his case without providing a complete copy of the IJ’s decision. To evaluate this claim, “we ask

whether there was a defect in the removal proceeding, and if so, whether [Alvarez-Hernandez] was

prejudiced by the defect.” Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir. 2012). “Due process

demands a reasonably accurate and complete transcript to allow for meaningful appellate review

and to allow the alien to mount a challenge to the proceedings conducted before the IJ.” Sterkaj

v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006).

Here, the Board declined to issue the legal addendum on the ground that doing so was “not

necessary.” The Board should have known better than that: the government has an “obligation

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under 8 U.S.C. § 1229a(b)(4)(C) to prepare a reasonably accurate and complete record of the

removal hearing.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (cleaned up).

And Alvarez-Hernandez had a due-process right to review that record as he prepared his appeal.

Sterkaj, 439 F.3d at 279. The Board’s failure to provide it therefore created “a defect in the

removal proceeding.” Abdallahi, 690 F.3d at 472.

Whether the Board’s mistake entitles Alvarez-Hernandez to relief depends on its

prejudicial effect. Id. To establish prejudice, Alvarez-Hernandez must show that the incomplete

record precluded him from raising an argument before the Board that “would have changed the

outcome of his case.” Garza-Moreno, 489 F.3d at 242. We therefore consider the merits of

Alvarez-Hernandez’s claims for relief.

To qualify for asylum, an applicant must show, among other things, that he has faced

persecution in the past or has a “well-founded fear of future persecution.” Pilica v. Ashcroft, 388

F.3d 941, 950 (6th Cir. 2004). “When an asylum claim focuses on non-governmental conduct, its

fate depends on some showing that the alleged persecutors are aligned with the government or that

the government is unwilling or unable to control them.” Khalili v. Holder, 557 F.3d 429, 436 (6th

Cir. 2009) (quoting Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir. 2007)).

Here, Alvarez-Hernandez based his claims exclusively on private conduct by La Familia.

As to the element of governmental control, Alvarez-Hernandez provided only his own testimony,

which described his father’s and brother’s opinions about the Mexican police. The IJ considered

that evidence, but concluded that Alvarez-Hernandez—whose family never sought police

protection—had not met his burden to show that the persecution he feared was attributable in part

to the Mexican government. That finding was dispositive, Khalili, 557 F.3d at 436; and it was

fully explained in the IJ’s opinion. Yet Alvarez-Hernandez failed to challenge it before the Board,

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and he does not argue that the incomplete record caused his waiver. Alvarez-Hernandez therefore

has not shown that a complete record “would have changed the outcome of his case.” Garza-

Moreno, 489 F.3d at 242.

Alvarez-Hernandez contends that the missing addendum would have helped him challenge

the IJ’s analysis as to a different element of his claim. But without a showing that the Mexican

government was “unwilling or unable to control” La Familia, the law required the IJ to deny all of

Alvarez-Hernandez’s applications. Khalili, 557 F.3d at 436; Ceraj v. Mukasey, 511 F.3d 583, 594

(6th Cir. 2007). That means Alvarez-Hernandez’s other arguments would not have made a

difference before the Board. Hence they do not entitle Alvarez-Hernandez to relief. Garza-

Finally, Alvarez-Hernandez argues that the Board erred by affirming the denial of his

applications for relief. But, as explained above, Alvarez-Hernandez waived any objection to the

IJ’s findings on the element of governmental control by failing to raise the issue before the Board,

Singh v. Rosen, 984 F.3d 1142, 1155 (6th Cir. 2021); and that waiver is fatal to each of his claims.

Ceraj, 511 F.3d at 594.

* * *

Alvarez-Hernandez’s petition is denied.

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