United States Court of Appeals For the First Circuit

No. 23-1108

TOMAS CAZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Rikelman, Lipez, and Thompson, Circuit Judges.

Kristian R. Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioner. Marie V. Robinson, United States Department of Justice, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Andrew N. O'Malley, Senior Litigation Counsel, were on brief, for respondent.

October 11, 2023 THOMPSON, Circuit Judge. Petitioner Tomas Caz ("Caz"),1

a member of Ecuador's Quechua indigenous group, applied for asylum,

withholding of removal, and protection under the Convention

Against Torture ("CAT") -- applications which were rejected by an

Immigration Judge ("IJ"). He then appealed to the Board of

Immigration Appeals ("BIA"), which affirmed the IJ's decision.

Convinced the BIA and IJ got it wrong, Caz filed a petition for

review with this court, asking us to reverse the BIA's affirmance

and remand his case. Limited by the deferential substantial-

evidence standard of review, we deny his petition.

BACKGROUND

Life in Ecuador and Entrance to the United States2

Caz is a native and citizen of Ecuador, born and raised

in Riobamba. While his life in Riobamba was, for the most part,

uneventful, he was "looked down on" and "discriminated against"

for his Quechua heritage, resulting in fewer employment

opportunities. Thinking it would be different in a larger city,

1Caz's name, at times, appears as "Segundo Tomas Caz-Quillay" in the administrative record. We use Tomas Caz because that is the name used in his opening brief. 2 We draw the facts from the administrative record, including

Caz's testimony before the IJ. Adeyanju v. Garland,

(1st Cir. 2022) (citing Martínez-Pérez v. Sessions,

, 37 n.1 (1st Cir. 2018)). While the IJ did not find Caz credible, the BIA, in adjudicating his appeal, "assum[ed], without deciding, that [he] testified credibly." Our review of the BIA's decision makes the same assumption.

- 2 - Caz moved to Guayaquil (about three to four hours from Riobamba)

in 2012, when he was about twenty-two years old.

Once there, Caz found work on a banana farm. One day in

2012, however, three of the temporary workers on the farm insulted

him, calling him "a small person," "a farmer . . . from the

village," and an "Indian." As Caz was leaving work that day, these

men attacked him, stole his money, and threatened him by

brandishing a firearm and by telling him they would kill him if he

returned to work. A second incident occurred months later in mid-

2013. On this occasion, the same three workers attacked Caz and

threw him down near a river or body of water, causing him to hit

his head on a rock when he went down and resulting in trauma to

the head. These men then threatened to kill him with a machete if

he reported their actions to the authorities.

Following this attack, Caz could no longer work due to

his head injury, so he returned to his parents' home in Riobamba

to recover. He lived there without incident for about one year.

Although Caz never saw his attackers again, these violent incidents

convinced him he was not safe in Ecuador, leading to his decision

to flee to the United States in November 2014.

Upon his arrival to the United States on December 28,

2014, Caz was issued an expedited removal order. He then expressed

a fear of returning to Ecuador and was referred to an asylum

officer for a credible fear interview. During the interview, Caz

- 3 - expressed that he feared harm in Ecuador due to his Quechua

heritage. The asylum officer deemed his fear credible and, as

such, referred his case to the immigration court for removal

proceedings.

Immigration Proceedings

Fast forward several years. Caz went before the IJ on

September 24, 2019, seeking to avoid removal through applications

for asylum, withholding of removal, and CAT protection. These

applications were principally supported by Caz's testimony, along

with his written affidavit, credible fear documents, asylum

application, and four country conditions reports.

After hearing Caz's testimony, the IJ issued an oral

decision denying all three forms of relief and ordering his removal

to Ecuador. In denying asylum, the IJ first found that Caz had

not testified credibly, focusing on purported discrepancies

relating to the presence of the firearm in the first attack and

the nature of his work in Guayaquil.3 Notwithstanding this adverse

credibility finding, the IJ went on to the merits of Caz's asylum

claim, concluding that he failed to carry his burden to prove past

3 To be specific, the IJ noted that, in Caz's written affidavit and credible fear documents, he never mentioned a firearm or its use during either attack. The IJ further noted that Caz's written statement indicated he worked in construction while in Guayaquil, not at a banana farm. Reviewing the transcript of Caz's testimony in 2019, it appears that the IJ's rapid, leading questioning of Caz, who was testifying through an interpreter using his second language, Spanish, may have contributed to the inconsistencies.

- 4 - persecution or a well-founded fear of future persecution. As to

past persecution, the IJ determined that the two incidents in

Guayaquil did not amount to persecution and, even if they did, the

persecution was not on account of his Quechua heritage. As to

future persecution, the IJ determined that Caz could not

demonstrate a well-founded fear because he could safely relocate

within Ecuador, citing Caz's testimony that he relocated to

Riobamba following the attacks and did not suffer any further

violence. Because Caz could not satisfy the asylum burden, the IJ

denied withholding of removal -- a form of relief with a higher

burden of proof than asylum. Turning to CAT protection, the IJ

denied relief because Caz failed to show it was more likely than

not that he would be tortured in Ecuador.

A timely appeal to the BIA followed. On January 11,

2023, the BIA issued a decision dismissing the appeal. While Caz

challenged the IJ's adverse credibility finding, the BIA side-

stepped the credibility issue entirely, choosing instead to assume

Caz testified credibly, then affirming the IJ's denial of relief

on the merits. Specifically, the BIA found no error in the IJ's

determination that Caz had not shown his Quechua heritage was the

motivation behind the attacks. Furthermore, the BIA agreed with

the IJ's conclusion that Caz could safely relocate within Ecuador,

noting that Caz had not contended it would be unreasonable for him

to relocate or otherwise challenged the IJ's internal relocation

- 5 - finding. Finally, the BIA noted (and of import to our analysis)

that Caz had not meaningfully challenged the IJ's denial of CAT

protection and deemed that claim for relief waived.

DISCUSSION

Against this factual and procedural backdrop, we turn

our attention to the three issues Caz raises to us in his petition

for review: 1) the BIA erred in adopting the IJ's adverse

credibility finding, a finding which was made (in Caz's view)

against the totality of the circumstances; 2) the BIA erred in

affirming the IJ's determination that Caz did not suffer past

persecution because his attackers were not motivated by his Quechua

heritage; and 3) the BIA erred in affirming the IJ's determination

that Caz could safely relocate within Ecuador and it would be

reasonable for him to do so. We bypass the first two issues and

focus our gaze squarely on the third issue, which is dispositive

of the whole petition. A quick review of some asylum fundamentals

explains why.

An applicant for asylum must show that they have

suffered or have a well-founded fear of suffering "persecution,"

which is harm on account of a protected ground "either . . .

perpetrated by the government itself or by a private actor that

the government is unwilling or unable to control." Aguilar-Escoto

v. Garland,

(1st Cir. 2023) (citing Rosales-

Justo v. Sessions,

(1st Cir. 2018)). If an

- 6 - applicant shoulders their burden as to past persecution, they get

the benefit of a presumption that they will face persecution in

the future on the basis of the original claim.

(b)(1).4 All that said, however, even if an applicant

makes a sufficient showing that they have suffered past persecution

or have a well-founded fear of future persecution, their

application for asylum will be denied if the adjudicator determines

that they could avoid persecution by internally relocating within

the country of removal and, under all the circumstances, it would

be reasonable to do so. See Khattak v. Holder,

(1st Cir. 2013); Tendean v. Gonzales,

(1st Cir.

2007);

(b)(1)(i)(B), (b)(2)(ii). Applying this

framework to Caz's case, assuming he testified credibly and

assuming his attackers were motivated by his Quechua heritage (thus

constituting past persecution and entitling him to that helpful

presumption of future persecution), if we conclude substantial

4As we noted earlier this year, "[i]n December 2020, the Department of Homeland Security and Department of Justice published a joint rule that amended portions of 8 C.F.R. § [208.13], including subsection [(b)(3)], which is cited in this opinion." Reyes-Ramos v. Garland,

, 369 n.1 (1st Cir. 2023) (citing Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,

(Dec. 11, 2020)). But that rule has been enjoined,

(citing Pangea Legal Servs. v. U.S. Dep't of Homeland Sec.,

, 977 (N.D. Cal. 2021)), so any citation in this opinion to

is to the 2020 version of that regulation -- the version in effect immediately prior to the promulgation of the enjoined rule.

- 7 - evidence supports the BIA's conclusion about the feasibility of

internal relocation (more on what substantial evidence means in

just a moment), his petition must be denied regardless.

Turning, accordingly, to the internal relocation issue,

"[f]or an applicant to be able to internally relocate safely, there

must be an area of the country where he or she has no well-founded

fear of persecution." Matter of M-Z-M-R-,

(B.I.A. 2012) (citing cases). "[T]he purpose of the relocation

rule is not to require an applicant to stay one step ahead of

persecution," so any proposed area of relocation "must present

circumstances that are substantially better than those giving rise

to a well-founded fear of persecution on the basis of the original

claim."

In considering an applicant's ability to safely

relocate internally, the adjudicator must assess the totality of

the circumstances, including "whether the applicant would face

other serious harm in the place of suggested relocation; any

ongoing civil strife within the country; administrative, economic,

or judicial infrastructure; geographical limitations; and social

and cultural constraints, such as age, gender, health, and social

and familial ties."

(b)(3). Along these same

lines, an applicant's prior successful internal relocation and the

continued safe residence of the applicant's family members5 in the

5 Of course, if those family members are not "similarly situated" (i.e., they do not have the applicant's same protected

- 8 - country of removal can be relevant to the analysis as well. See,

e.g., López-Pérez v. Garland,

(1st Cir. 2022);

Chen Qin v. Lynch,

(1st Cir. 2016).

Here, as a reminder, the IJ determined that Caz could

safely relocate within Ecuador to Riobamba, as evidenced by the

fact that he returned there after the attacks in Guayaquil and

lived safely for one year before fleeing to the United States.

The BIA affirmed on this same basis and observed Caz made no

unreasonable-to-relocate argument. The standard we apply to our

review of that decision -- the substantial evidence standard --

determines the outcome here. See Tendean, 503 F.3d at 10–11.

Substantial evidence requires any finding be "supported

by reasonable, substantial, and probative evidence on the record

considered as a whole." Odei v. Garland,

(1st

Cir. 2023) (citation and internal quotation marks omitted). To

reverse under the substantial evidence standard means that "the

evidence must not only support the contrary finding, but compel

it." Mahmoud v. Barr,

(1st Cir. 2020) (citing

Albathani v. INS,

(1st Cir. 2003)). In other

words, reversal requires that "the evidence point[] unerringly in

the opposite direction." López-Pérez,

(quoting

characteristic that can lead to potential persecution), their continued residence in the country of removal is given little weight in the internal relocation calculus. See Morales-Morales v. Sessions,

, 134 n.1 (1st Cir. 2017).

- 9 - Rashad v. Mukasey,

(1st Cir. 2009)). And "where, as

here, the BIA accepts the IJ's findings and reasoning yet adds its

own gloss, we review [under the substantial evidence standard] the

two decisions as a unit." Cabrera v. Lynch,

(1st Cir. 2015) (quoting Moreno v. Holder,

(1st

Cir. 2014)).

Crucially, under the substantial evidence standard, the

question we must answer is not whether the record included any

evidence suggesting Caz could not relocate safely within Ecuador.

Nor is the question whether we would have reached an opposite

conclusion to the IJ and BIA. Rather, the question is whether a

reasonable factfinder, having considered all the evidence, would

be compelled to conclude that Caz could not safely relocate within

Ecuador. See Barnica-Lopez v. Garland,

(1st

Cir. 2023).

A summary of the evidence presented below on this issue

explains why we answer that question in the negative. On one side

of the equation is the evidence suggesting Caz could not safely

relocate within Ecuador: 1) Caz presented four country conditions

reports detailing widespread discrimination in Ecuador against

members of the Quechua indigenous group; 2) in response to his

attorney's question regarding whether internal relocation would

help him avoid future harm, Caz responded, "No. I don't think so

because it -- it's the same everywhere. They rob and kill and

- 10 - hurt people all over."; and 3) in response to his attorney's

follow-up question, asking "[W]ere you afraid that other people

might target you for being indigenous in other parts of Ecuador

too?", Caz responded affirmatively.

On the other side of the equation is the evidence

suggesting Caz could safely relocate within Ecuador: 1) he

testified that other than the two violent incidents in Guayaquil,

he never suffered any other violence in Ecuador; 2) for the first

twenty-two years of his life and the year following the attacks,

he lived safely in Riobamba; 3) he testified that his parents (also

members of the Quechua indigenous group) continued to live in

Riobamba unharmed;6 and 4) when later asked again whether he could

safely relocate within Ecuador, he responded, "Maybe. There might

be another state, but most of the country is the same." Balancing

all this evidence together, we simply cannot conclude that a

reasonable factfinder would have been compelled to a contrary

conclusion, especially where Caz lived safely in Riobamba for the

6 Specifically, Caz stated, "I don't think [my parents have suffered as a result of being indigenous], because they never -- they never leave the place where we used to live. They never go out." To the extent "the place where we used to live" refers to Riobamba, that would support the IJ's determination that Caz could safely relocate there. Alternatively, to the extent "the place where we used to live" refers to his parents' property and Caz meant to imply that his parents do not leave their property out of safety concerns, he provided no evidence to that effect such that the IJ could have reasonably concluded his parents faced risks of violence in Riobamba.

- 11 - vast majority of his life in Ecuador, his Quechua parents continue

to live there, and he himself stated that "[t]here might be another

state" where he could safely reside.

Caz resists this conclusion, offering three arguments

why the conclusion is not supported by substantial evidence.

First, he contends that the IJ and the BIA disregarded the country

conditions evidence and his testimony indicating internal

relocation would not have been possible. We know this is not true,

because the IJ's oral decision specifically cited the country

conditions reports and Caz's testimony, demonstrating they were

thus considered.

Second, Caz argues that, as the beneficiary of a

presumption of future persecution, the burden shifted to the

government to establish that internal relocation was reasonable.

Because the government provided no evidence to refute Caz's

testimony and the country conditions reports -- the argument goes

-- the government did not carry its burden and the BIA erred in

affirming the IJ's internal-relocation analysis. That

presumption, however, can be rebutted through the applicant's own

testimony. See, e.g., Herrera v. Garland, No. 21-60120,

, at *3 (5th Cir. Feb. 1, 2023); Sherpa v. Barr,

, 829 (2d Cir. 2020). And recall that Caz testified that

the attacks were localized to Guayaquil, he suffered no violence

- 12 - in Riobamba, his parents still lived there safely, and he conceded

there were perhaps some states where he could live safely.

Caz's third and final argument is that relocation must

be reasonable under the totality of the circumstances and, because

there is evidence in the record to suggest Caz faced employment

discrimination in Riobamba, relocating there is not reasonable.

This argument appeared for the first time not in his opening brief,

but at oral argument. Setting aside the fact that this argument

is, accordingly, waived, see Barros v. Garland,

, 62

n.8 (1st Cir. 2022), we reach the argument's merits for the sake

of completeness, see, e.g., Vaz Dos Reis v. Holder,

, 4

n.3 (1st Cir. 2010) (considering claim that was not advanced before

the court "[f]or the sake of completeness"); Kheireddine v.

Gonzales,

, 86 n.6 (1st Cir. 2005) (ignoring "[f]or

argument's sake . . . a waiver of [an] argument" and considering

the argument's merits).

The only case Caz offered at oral argument for that

proposition is Matter of T-Z-, where the BIA noted that economic

harm can amount to persecution where "[t]he economic difficulties

[are] above and beyond those generally shared by others in the

country of origin and involve noticeably more than mere loss of

social advantages or physical comforts" and "the harm [is] of a

deliberate and severe nature and such that is condemned by

civilized governments."

(B.I.A. 2007)

- 13 - (citation and internal quotation marks omitted). The only evidence

in the record Caz offered at oral argument for the proposition

that he endured employment discrimination in Riobamba was two

sentences in his written affidavit: "The town I grew up in Ecuador

was very small so I decided to make my way to Guayaquil to find

work. I knew that people sometimes looked down on me and other

Quechua people because of our heritage but I believed that in a

larger city I would be safer and have an easier time finding work

and not being discriminated against." These two sentences hardly

satisfy the standard set forth in Matter of T-Z-. Moreover, his

claims of employment discrimination in Riobamba are belied by other

aspects of the record. For example, during his credible fear

interview, Caz was asked why he could not secure work in Riobamba,

to which he replied, "I live in the country, and there is no work

there, so I had to go far to look for work." His answer suggests

that his lack of employment in Riobamba was not a result of

discrimination, but rather limited employment opportunities in a

rural area. As such, any suggestion that employment discrimination

in Riobamba would make Caz's relocation there unreasonable is not

borne out by the record.

Having reviewed the evidence and considered all Caz's

arguments, we conclude that the IJ's and BIA's decisions as to

internal relocation are supported by substantial evidence and his

application for asylum was, therefore, appropriately denied. The

- 14 - corollary to this conclusion is that withholding of removal was

also appropriately denied because such relief requires a higher

showing than asylum.7 See Tendean,

.

CONCLUSION

For the foregoing reasons, the petition is denied.

7 Nowhere did Caz challenge the BIA's determination to deem waived the issue of CAT protection. So, to the extent he wished to challenge that determination, any arguments he had to that effect are waived.

- 15 -