Caz v. Garland

84 F.4th 22

Tomas CAZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1108

United States Court of Appeals, First Circuit

October 11, 2023

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.

Before Rikelman, Lipez, and Thompson, Circuit Judges.

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

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, 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 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 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 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, 59 F.4th 510, 518 (1st Cir. 2023) (citing Rosales Justo v. Sessions, 895 F.3d 154, 162 (1st Cir. 2018)). If an 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. 8 C.F.R. § 208.13(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, 704 F.3d 197, 202 (1st Cir. 2013); Tendean v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007); 8 C.F.R. §§ 208.13(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 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-, 26 I. & N. Dec. 28, 33 (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." Id. 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." 8 C.F.R. § 208.13(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 country of removal can be relevant to the analysis as well. See, e.g., López-Pérez v. Garland, 26 F.4th 104, 112 (1st Cir. 2022); Chen Qin v. Lynch, 833 F.3d 40, 45 (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...