United States Court of Appeals For the First Circuit

No. 18-1202

DENNIS MAURICIO MIRANDA-BOJORQUEZ,

Petitioner,

v.

WILLIAM P. BARR,* ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Torruella, Lipez, and Kayatta, Circuit Judges.

Rachel L. Rado and The Law Office of Rachel L. Rado, LLC on brief for petitioner. Jennifer P. Levings, Senior Litigation Counsel, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General, and Shelley R. Goad, Assistant Director, Office of Immigration Litigation, on brief for respondent.

August 27, 2019

*Pursuant to Fed. R. App. P. 43(c)(2), Attorney General William P. Barr is substituted for former Attorney General Jefferson B. Sessions III as respondent. TORRUELLA, Circuit Judge. Petitioner Dennis Mauricio

Miranda-Bojorquez ("Miranda") fled his native El Salvador and

entered the United States unlawfully. He sought asylum,

withholding of removal, and relief under the Convention Against

Torture ("CAT"), claiming that he was abused and threatened as a

child by family and purported gang members in El Salvador. The

Immigration Judge ("IJ") denied Miranda's application for refugee

status, and the Board of Immigration Appeals ("BIA") affirmed.

Because the agency's decision is supported by substantial

evidence, we deny Miranda's petition for judicial review.

I.

A.

On November 22, 2014, at age seventeen, Miranda

unlawfully entered the United States near Hidalgo, Texas, after

which he was detained by border patrol and classified as an

unaccompanied juvenile. Miranda was later released to the custody

of his parents, who lived in Chelsea, Massachusetts. On February 6,

2015, the Department of Homeland Security ("DHS") charged Miranda

with removability, pursuant to section 212(a)(6)(A)(i) of the

Immigration and Nationality Act ("INA"), as an alien present in

the United States who has not been admitted or paroled. In May

of that year, he filed a timely application for asylum.

-2- While in Chelsea, Miranda attended school and held jobs

at restaurants. It was also in Chelsea, however, where he had two

run-ins with the police. The first encounter took place on June 26,

2016. Miranda was riding in a car with three other individuals

when the police stopped them after receiving a tip that individuals

matching their description had been acting suspiciously in the

area. During this stop, Miranda was subjected to a protective

search and thereafter arrested for possession of a dangerous

weapon, a large knife, in violation of a local ordinance.

Miranda's next encounter with the police resulted from

a group altercation that occurred on September 23, 2016. Miranda

was stabbed in the abdomen during this incident, after which he

was transported to Massachusetts General Hospital for treatment.

While Miranda was hospitalized, a Chelsea Police Department

Officer, Anthony D'Alba, interviewed him. Miranda was under the

effects of anesthesia and oxycodone at the time of this interview.

Officer D'Alba filed a police report that detailed his interview

with Miranda. The report stated that a woman had instigated the

altercation. It explained that after Miranda and his friend

ignored the woman's taunts, she summoned around a dozen of her

friends, all alleged members of the 18th Street Gang. Upon

arriving, the alleged gang members got into a scuffle with Miranda

and his friend that eventually resulted in the latter two being

-3- stabbed. The police report further reflects that during the

interview Miranda stated that he was previously a member of MS-13

but was no longer involved with the gang.1 Miranda also told

Officer D'Alba that he still associated with and had friends who

were members of MS-13.

On October 14, 2016, Homeland Security Investigations

("HSI")2 designated Miranda as a verified and active member of MS-

13. As a result, on November 17, 2016, DHS seized Miranda at his

home and transferred him back to immigration custody.

B.

In a series of hearings beginning on July 14, 2017, an

IJ considered Miranda's application for asylum, withholding of

removal, and relief under the CAT.

Miranda testified that, as a child in El Salvador, he

suffered a pattern of physical and psychological abuse at the hands

of family members -- specifically, his uncle Mauricio and aunt

Virginia -- with whom he lived after his parents left El Salvador

1 MS-13 and the 18th Street Gang are rival gangs. The Government claims Miranda was arrested for "assault/attempted murder" as a result of the altercation. But the sections of the record the Government cites do not support this assertion. 2 "HSI is a critical investigative arm of the Department of Homeland Security . . . ." Homeland Security Investigations, U.S. Immigration and Customs Enforcement, https://www.ice.gov/hsi (last visited Aug. 19, 2019).

-4- for the United States. Specifically, Miranda testified that

Mauricio beat him and forced him to do agricultural work and that

Virginia singled him out, beat him, and abused him repeatedly, all

because of his race.3

During the proceedings, the IJ also examined police

reports -- including Officer D'Alba's -- and other government

documents, such as those prepared by DHS, identifying Miranda as

a gang member. After finding these documents admissible, the IJ

allowed Miranda a "full opportunity" to rebut their reliability.

Miranda then went on to testify that he had never told anyone that

he used to be a gang member; that he had never associated with

anyone belonging to a gang; and that he had "never been associated

with any gang."

On August 25, 2017, the IJ issued a twenty-seven page

opinion denying Miranda's application for refugee status and

ordering his removal to El Salvador. The opinion lists all the

documentary evidence that the IJ examined, including a memorandum

of Miranda's "verified gang affiliation" based on the HSI database

3 Virginia perpetrated these beatings with belts, broomsticks, and electric cords, and they were consistently accompanied by racial slurs referring to Miranda's dark complexion. Miranda was also deprived of food and medical care and forced to do agricultural work. His testimony further revealed that, out of all the children under Virginia's care, only those with dark skin received this treatment.

-5- and other government sources, as well as the reports detailing his

encounters with the Chelsea Police Department.

The IJ deemed credible Miranda's testimony about the

abuse he experienced in El Salvador and found that Miranda faced

past persecution on account of his race. Nonetheless, the IJ

concluded that Miranda did not establish a well-founded fear of

future persecution. The IJ made this determination in light of

Miranda's testimony that his aunt Virginia is now deceased and the

absence of evidence elsewhere in the record indicating that other

actors would subject Miranda to similar mistreatment animated by

racial animus.

The IJ also rejected Miranda's claim for asylum based on

his belonging to a particular social group of "male minor children

who are dependent and who cannot leave their families." According

to the IJ, Miranda did not establish his membership in such a

social group because he is no longer a minor and the record shows

that he was in fact able to leave his family twice while living in

El Salvador.4

4 The IJ also rejected Miranda's claim that he was a member of a protected social group made up of "family members of individuals who have been executed by gang members" because they resisted gang membership. Miranda, however, does not seek our review of the agency's denial of asylum based on this proposed category.

-6- Next, the IJ determined that Miranda was ineligible for

humanitarian asylum. Critical to this determination was the IJ's

adverse credibility finding with regards to Miranda's testimony

about his gang affiliations in El Salvador and the United States.

The IJ explained that "the record is dotted with inconsistent

statements" about Miranda's connections to gangs in view of his

testimony denying any involvement and the documentary evidence

from multiple government sources revealing the contrary. This

left the IJ "unable to discern the extent of [Miranda's] gang

connections." Thus, despite finding that Miranda suffered past

persecution, the IJ declined to exercise his discretion to grant

humanitarian asylum because of the evidence showing that Miranda

"associated with gang members and gang affiliates." Finally, the

IJ found that Miranda's claim for withholding of removal failed

because he could not meet the lower burden for asylum and that he

did not show the requisite level of government involvement to

access protection under the CAT.5 Miranda thereafter appealed to

the BIA, which dismissed his appeal and affirmed the IJ on

February 5, 2018.

Miranda now seeks our review of the BIA's decision. He

claims that the BIA erred in upholding the IJ's factual findings

5 Miranda does not challenge the agency's denial of withholding of removal or relief under the CAT.

-7- about his fear of future race-based persecution and his belonging

to a protected social group. Miranda also challenges the agency's

denial of humanitarian asylum. Specifically, he argues that it

was an abuse of discretion for the IJ to deny him humanitarian

asylum because of his purported gang affiliation. Lastly, Miranda

contends that the agency violated his due process rights by relying

on gang incident reports that he was unable to refute.

II.

Where, as here, the BIA embraces the IJ's decision but

adds its own gloss, we review both decisions as a unit. Urgilez

Méndez v. Whitaker,

(1st Cir. 2018); see also

Aguilar-De Guillen v. Sessions,

(1st Cir. 2018).

"Judicial review of the denial of asylum is deferential."

Urgilez,

(citing

(b)(4)(B)).

"[D]enial of asylum must be affirmed unless the administrative

record unequivocally indicates error."

(citation

omitted).

We will leave the agency's factual findings -- such as

credibility determinations and whether persecution occurred

because of a protected ground -- undisturbed so long as they are

supported by substantial evidence. See Ordonez-Quino v. Holder,

(1st Cir. 2014); Jabri v. Holder,

(1st Cir. 2012). "Only where the record compels a contrary outcome

-8- will we reject the IJ's findings." Aguilar-De Guillen,

-33 (citing Thapaliya v. Holder,

(1st Cir.

2014)).

A.

To obtain asylum, an applicant must establish that he

qualifies as a refugee under section 101(a)(42)(A) of the INA.

, 1158. A refugee is someone who is "unable or

unwilling" to return to his country of origin "because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion."

§ 1101(a)(42)(A). If a

petitioner proves past persecution, "a presumption of future

persecution follows." Santos-Guaman v. Sessions,

(1st Cir. 2018). The Government, however, may rebut this

presumption by showing either a fundamental change in

circumstances that eliminates the fear of persecution or the

reasonable expectation that the applicant can avoid future

persecution by relocating within the country.

(citing

(b)(1)(i)(A)-(B)).

We first direct our attention to the argument that it

was an error for the BIA to affirm the IJ's factual findings that

Miranda does not belong to a particular social group and that he

will not face race-based persecution if repatriated to El Salvador.

-9- We conclude that it was not, as substantial evidence supports both

determinations.

As noted before, Miranda claimed membership in a

"particular social group" made up of "male minor children dependent

on and who cannot leave their families." But the IJ found that

Miranda did not belong to such a group because he is no longer a

minor and is neither dependent on his family nor unable to leave

it. Nothing in the record contradicts the IJ's findings. It is

unquestionable that Miranda is now twenty-one years old, a fact

that means he is no longer in his purported social group of "minor

children." Moreover, the record presents evidence that Miranda

was able to leave his abusive family members, even as a minor in

El Salvador. Miranda, for instance, escaped from the abuse he

suffered at the hands of his aunt Virginia by choosing to go live

with another aunt. Thus, there is substantial evidence in the

record that supports the IJ's finding, affirmed by the BIA, that

Miranda was not a member of the social group he invoked to seek

asylum.

The IJ did find that Miranda established past

persecution on the basis of his race, thus entitling him to a

presumption of a well-founded fear of future persecution. The

agency determined, however, that the Government successfully

rebutted this presumption by demonstrating that the circumstances

-10- leading to Miranda's past persecution in El Salvador have

fundamentally changed because of the death of his aunt Virginia.

See Uruci v. Holder,

(1st Cir. 2009) ("The

presumption can be rebutted, however, if 'a report demonstrates

fundamental changes in the specific circumstances that form the

basis of a petitioner's presumptive fear of future persecution.'"

(quoting Chreng v. Gonzáles,

, 22 (1st Cir. 2006))).

And Miranda does not allege a fear of race-based persecution by

any other parties. Here again, we spot nothing in the record to

justify overturning the IJ's finding.

Under the applicable deferential standard of review, we

conclude there is substantial evidence to support the IJ's findings

-- accepted by the BIA -- that Miranda is no longer a member of

his proposed social group composed of minors and that circumstances

in El Salvador have sufficiently changed so as to render his fears

of future persecution unfounded.

B.

We now shift our focus to the agency's denial of

humanitarian asylum, which Miranda contends was also erroneous.

Even if the Government rebuts the presumption of future

persecution -- like it did here -- the immigration courts retain

the discretion to award asylum for humanitarian reasons to an

applicant who has suffered past persecution. See Martínez-Pérez

-11- v. Sessions,

(1st Cir. 2018); see also Ordonez-

Quino,

. "To qualify for humanitarian asylum based

on the severity of past persecution, an applicant must prove that

he experienced extraordinary suffering in the past. In other

words, an [applicant] must show past persecution so severe that

repatriation would be inhumane." Ordonez-Quino,

(alteration in original) (internal quotation marks omitted)

(citation omitted); see also Precetaj v. Holder,

(1st Cir. 2011) ("[T]he paradigm case is one in which so much abuse

has been directed against the victim that the suffering is

projected into the future and that a return of the applicant to

the place where the harm was inflicted would magnify the prior

suffering."). This is a "last-resort form of relief that is

difficult to obtain and rarely granted." Precetaj,

. Here, the IJ denied humanitarian asylum after concluding that

the hardship Miranda might face if returned to El Salvador was

overcome by evidence of his involvement with gangs and gang

members.

Miranda asks that we overrule the denial of humanitarian

asylum because the agency's decision was informed by "erroneous,

unauthenticated, prejudicial, and impermissible speculative

evidence." He takes particular issue with the police and other

government reports considered by the IJ that indicated his

-12- association with MS-13 and its affiliates. Among other things,

Miranda insists that the police reports contain hearsay, present

inconsistencies "that at least cast suspicion on their

reliability," and that such inconsistencies should have led the IJ

"to wonder if the [police officers] had ulterior motives when

preparing them." According to Miranda, his own testimony -- that

he was under the effects of anesthesia in a hospital bed when he

told the police about his past affiliation with MS-13 -- "casts

suspicion on the narratives in the police report." Miranda also

uses the alleged unreliability of these reports to challenge the

IJ's refusal to deem credible his testimony denying gang

involvement.

Nothing in the record compels us to find that the police

and other government reports were so obviously unreliable as to

render the agency's reliance on them an abuse of the agency's wide

discretion. See Conde Cuatzo v. Lynch,

(1st

Cir. 2015) ("Immigration judges have broad discretion over the

conduct of immigration court proceedings."). Here, not only did

the IJ find the reports reliable and that their use would not be

fundamentally unfair, but he also gave Miranda an opportunity to

rebut their reliability. This is exactly what our precedents

required the IJ to do. See, e.g., Arias-Minaya v. Holder,

(1st Cir. 2015) (upholding admissibility of police

-13- report after the agency determined its reliability and fairness

and offered petitioner "an opportunity to challenge its veracity

and refute its contents").

As we recently reiterated in Cabas v. Barr, since the

rules of evidence do not apply in immigration proceedings, the

evidentiary standards deployed by immigration judges "are

generally more lax."

(1st Cir. 2019) (citing

Castilho de Oliveira v. Holder,

(7th Cir. 2009)).

This means, for instance, that -- when considering discretionary

decisions like whether to grant humanitarian asylum -- immigration

judges can review police reports containing hearsay, "even if an

arrest did not result in a charge or conviction, because the report

casts probative light on [the applicant's] character." Mele v.

Lynch,

(1st Cir. 2015). Similarly, authentication

in the immigration context "requires nothing more than proof that

a document or thing is what it purports to be," and it is undisputed

that such a requirement was fulfilled here. Cabas,

(citing Yongo v. INS,

(1st Cir. 2004)). A

presumption of regularity also attaches to the reports that Miranda

contests, and he was unable to rebut that presumption with clear

evidence. See Tota v. Gonzáles,

(1st Cir. 2006)

("[I]n the absence of clear evidence to the contrary, courts

presume that [government agencies] have properly discharged their

-14- official duties." (alterations in original) (quoting United States

v. Armstrong,

(1996))).

The IJ's decision not to grant humanitarian asylum was

in any event further informed by evidence other than the government

reports. In the almost three full pages that his twenty-seven

page opinion dedicated to this claim, the IJ notes that he also

accounted for the testimony of a school counselor and Miranda's

sister as "negative factors" suggesting his involvement with gangs

and thereby weighing against the grant of humanitarian asylum.6

Conversely, the IJ considered a myriad of "humanitarian factors"

that favored the grant of asylum to Miranda. These included

Miranda's history of "suicidal ideations, depression, as well as

symptoms" of PTSD; the "thoughts of hopelessness" that he expressed

to a social worker; the medical complications that he experienced

as a result of the abuse and neglect he suffered in El Salvador;

and his ties to immediate family living in the United States.

This comprehensive weighing of factors lead the IJ to acknowledge

that "[t]he removal of an individual who suffers from ongoing

mental and physical health is a challenging one" and that Miranda's

"removal to El Salvador will place a hardship on him and his

6 The IJ further noted that Miranda did not attempt to rebut his sister's negative testimony by calling her as a witness, even though she was available to testify.

-15- health." After considering all available evidence, the agency

nonetheless remained "unpersuaded that [Miranda] will refrain from

gang affiliations that pose a danger to the community at large"

and declined to grant him humanitarian asylum.

The abuse that Miranda experienced in El Salvador was

undoubtedly deplorable. But we conclude that substantial evidence

supports both the agency's finding of adverse credibility with

regards to Miranda's gang-affiliation testimony and the decision

to withhold humanitarian asylum.7 Cf. Cantarero v. Holder,

(1st Cir. 2013) (noting that "Congress did not mean to

grant asylum to those whose association with a criminal syndicate

has caused them to run into danger").

III.

Finding that substantial evidence supports the findings

of the immigration court, we deny Miranda's petition for judicial

review.

Denied.

7 Miranda also argues that the agency's consideration of the government reports affiliating him with gangs violated his right to due process under the Fifth Amendment. In the immigration context, "[t]o make out a due process violation, a claimant must show that a procedural error led to fundamental unfairness as well as actual prejudice." Conde Cuatzo,

. Having discerned no procedural error, we need not entertain this argument any further.

-16-