Barragan-Ojeda v. Sessions, No. 16-2964 (7th Cir. 2017)

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Justia Opinion Summary

Barragan‐Ojeda, an 18-year-old citizen of Mexico, entered the U.S. without authorization in 2013. He was apprehended at the border and requested asylum. Before an immigration judge, he claimed that a Mexican criminal gang had persecuted him. He mentioned that he had been the victim of employment discrimination because he was effeminate, but denied that he was gay. The IJ denied asylum. On appeal to the Board of Immigration Appeals, Barragan‐Ojeda filed an affidavit asserting that he was gay and that he had been persecuted because of his sexual orientation. The Board affirmed the denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board declined to remand. The Seventh Circuit denied a petition for review. Barragan‐Ojeda’s due process challenge was not presented to the Board and, in any event, the record did not indicate that the IJ’s conduct of the hearing evinced the kind of impatience and bias that might be characterized as a due process violation. The Board correctly evaluated the new evidence submitted by Barragan‐Ojeda under the standards applicable to a reopening and correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 2964 JUAN CARLOS BARRAGAN OJEDA, Petitioner, v. JEFF SESSIONS, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A206 516 229. ____________________ ARGUED DECEMBER 1, 2016 — DECIDED APRIL 5, 2017 ____________________ Before POSNER, RIPPLE, and ROVNER, Circuit Judges. RIPPLE, Circuit Judge. Juan Carlos Barragan Ojeda, a native and citizen of Mexico, entered the United States without au thorization in 2013. He was apprehended at the border and requested asylum. Appearing pro se before the immigration judge (“IJ”), he claimed eligibility for asylum because a Mex ican criminal gang had persecuted him. At the conclusion of 2 No. 16 2964 his testimony, he briefly mentioned that he had been the vic tim of discrimination in employment because he was effemi nate, but, when questioned by the IJ, he denied that he was gay. The IJ denied asylum, and Mr. Barragan Ojeda appealed to the Board of Immigration Appeals (“Board” or “BIA”). There, represented by counsel, Mr. Barragan Ojeda filed an additional affidavit asserting facts not before the IJ: he claimed that he was gay and that he had been persecuted be cause of his sexual orientation. The Board adopted and af firmed the IJ’s denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board treated the appeal as a motion to remand and deter mined that the requirements for such a motion were not sat isfied. Mr. Barragan Ojeda now petitions for review in this court. He submits that the IJ denied him due process in the conduct of the proceedings and that the Board erred in deny ing him asylum on the basis of his sexual orientation. We deny the petition for review. Mr. Barragan Ojeda’s due process challenge is premised on the IJ’s conduct of the hearing; this sort of claim must be presented to the Board be fore it can be presented here, and Mr. Barragan Ojeda did not do so. In any event, nothing in the record suggests that the IJ’s conduct of his hearing evinced the kind of impatience and bias that might be characterized as a violation of due process of law. The Board correctly evaluated the new evidence submit ted by Mr. Barragan Ojeda under the standards applicable to a reopening. It correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable. No. 16 2964 3 I BACKGROUND Mr. Barragan Ojeda was born in Mexico on March 6, 1995 and entered the United States in July 2013 at age 18. He was apprehended at the border and requested asylum. The De partment of Homeland Security (“DHS”) then placed him in removal proceedings. The IJ continued his case for over a year, in part to give him an opportunity to locate an attorney if he wished to be represented in proceedings.1 On April 23, 2015, Mr. Barragan Ojeda appeared pro se before the IJ for an individual merits hearing on his asylum claim. His current at torney asserts in his brief that Mr. Barragan Ojeda made a preliminary, off the record request to the IJ for a closed asy lum hearing, but that the IJ denied the request. Members of Mr. Barragan Ojeda’s family were present. Before the IJ, Mr. Barragan Ojeda testified, with the assis tance of an interpreter, that he had entered the United States in 2013 to “save [his] life,” which was threatened by a large criminal gang in Mexico called the Caballeros Templarios.2 His family resides in the Mexican state of Michoacán, where they own land and where his father is a farmer and a propri etor of a liquor store. Members of the gang extorted money from his family from 2012 until 2013, when his father refused to continue paying them. At that point, his father “tried to get us out of the town.”3 Mr. Barragan Ojeda came to the United 1 The IJ gave him a list of organizations that could assist him at little or no cost. 2 A.R. at 249. 3 Id. at 251 (testimony of Mr. Barragan Ojeda). 4 No. 16 2964 States, but his parents elected to stay in the same town in Mi choacán. Mr. Barragan Ojeda stated that after he left Mexico, shots were fired through the windows of his parents’ home. He also claimed that his family members were victims of ex tortion. When asked if “all businessmen or all people in the area” were similar targets, he replied, “Yes. Yes. They ask for every business you have, for every car you have, for every motorcycle.”4 His parents had not relocated, he continued, be cause they “have their whole life there. They have their houses. They have their parcels. They have their land.”5 His family also had not sought government protection because “the government is also joined in with organized crime.”6 Mr. Barragan Ojeda supported his application with two articles in Spanish discussing the murder of his uncle. When asked, he said that he did not know the circumstances of his uncle’s death. He also submitted a letter from his father. The letter noted that his uncle had been shot to death in their hometown and that the family was in danger and afraid of the police. It also noted, for the first time, that Mr. Barragan Ojeda had received a phone call in which he had been “threatened that he would be killed.”7 According to his father, he would be targeted “because he was cooperating with the self defense groups because he would take … food to those that are in the movement.”8 When asked by the IJ about this statement, 4 Id. 5 Id. at 252. 6 Id. 7 Id. at 255. 8 Id. No. 16 2964 5 Mr. Barragan Ojeda clarified that, on one occasion, his grand mother had sent plantains to a group of local people opposing the extortion by the gang, and Mr. Barragan Ojeda had dropped off the box. Afterwards, he received a threatening phone call, likely because gang informants were part of the group. The IJ began an oral ruling in which he denied Mr. Bar ragan Ojeda’s claim on the basis that the harm he faced was too generalized and not tied to a protected ground; specifi cally, he had not identified a viable social group. Before fin ishing his ruling, however, the IJ engaged Mr. Barragan Ojeda in one final exchange: Q. Sir, is there anything else you want to tell me concerning your fear of going back to Mex ico? A. It’s just that there are many things. Q. Well, is there any other reason why you fear going back other than what you have told me? A. What about discrimination for being ef feminate? Q. Well, that doesn’t qualify you for asylum. I mean are you saying that you’ve been mis treated by someone or people discriminate against you because of the way you look? A. Yes. Q. But what difficulties have you had? 6 No. 16 2964 A. Well, at work, when I would look for work they would tell me that they needed men and not little girls. Q. I mean do you think, are you a homosex ual or not? A. No. Q. But you think people perceive you that way. A. Yes. [Q.] Well, you left Mexico shortly after grad uating high school. The fact that you believe you faced discrimination would not constitute persecution. So I don’t see that you qualify to remain in the United States under the law.[9] The IJ then continued an oral decision in which he noted that Mr. Barragan Ojeda appeared to be attempting to define his social group as victims of extortion in Mexico, but that this group, defined only by a relationship to the persecutors, was not sufficient under Board precedent. The IJ also examined several other potential social groups, including those who support the self defense group, or young men from families that had been extorted by criminal gangs, but he determined that these groups were too generalized and that the record was insufficient to establish a connection between these groups and his mistreatment. In the IJ’s view, the primary goal of the violence was extortion, not punishment. 9 Id. at 258. No. 16 2964 7 Finally, the IJ turned to his last exchange with Mr. Bar ragan Ojeda. He concluded that, although homosexuals are considered a social group for purposes of asylum claims, Mr. Barragan Ojeda had denied being homosexual and “his limited testimony concerning job prospects because of his ap pearance does not lead this Court to conclude that he faces a more likely than not chance of persecution on account of be ing an imputed homosexual.”10 Before the Board of Immigrations Appeals, Mr. Barragan Ojeda, now with the support of retained counsel, submitted an additional one paragraph statement, the translation of which states, in full: I was drinking with two drug trafficking friends who were using cocaine after beginning to molest me and they became enraged because I told them to stop and one of them took a gun and the other started physically abusing me and the other deceived me. I thought I was going to die at this moment and I thought they would kill me and carry me to the river to shut me up. Out of fear I did not tell my father but instead told a friend of mine what had occurred, that I was gay, and that I was frightened because it was dangerous here. If they saw me the next day they were going to wake me up to kill me to ensure that nothing was said about what hap pened on June 20th[,] 2013. I could not live a normal life in the village and I went on the streets with fear. After the day July 2, 20[1]3, I 10 Id. at 219. 8 No. 16 2964 received a call to carry food to the community police and they told me that I was a dead man for cooperating with the community police who now had called the rural police and federal po lice. They came to us in the night outside the house of a friend who wanted to obligate to say where they sold drugs to us. We did not know because we did not use them. Also I am afraid to return to Mexico because this guy apparently is involved with politics and he is the ex hus band of my aunt, the sister of my father and is a principal member of the rural police who before were called the community police. Also, I do not want to return to Mexico because of the discrim ination against people with my sexual appear ance.[11] Mr. Barragan Ojeda also submitted a number of second ary sources, including the State Department Country Report for Mexico, four short news items from the Mexican press about incidents of violence against homosexuals, and one news item about the arrest of a leader of the Caballeros Tem plarios. Notably, in his brief to the Board, he made only pass ing reference to the original claims made before the IJ. Instead, he focused on his new claim of rape in his additional state ment and on the persecution faced by gay men in Mexico.12 The brief contends, without citation to record evidence in the 11 Id. at 48. 12 His briefs to the Board and to this court both also state that he was “cas trated” in Mexico, but reference only his testimony regarding discrimina tion. See Pet’r’s Br. 2. The claim appears, therefore, to be metaphorical. No. 16 2964 9 form of a statement from Mr. Barragan Ojeda or otherwise, that Mr. Barragan Ojeda had not disclosed his sexual orienta tion at the first hearing because he was not ready to admit it publicly given his youth and inexperience, his upbringing and the rejection of homosexuality in Mexican culture, his shame as a rape victim, his nerves, his lack of counsel, and the presence of members of his family in the courtroom. The brief asserts, again without citation to evidence, that the IJ had de nied a request to close the hearing. The Board denied relief. It first adopted and affirmed the decision of the IJ denying the application for asylum on the grounds originally presented, namely extortion by the Cabal leros Templarios. The Board held that Mr. Barragan Ojeda had not established “that one central reason for the threats of harm by the Caballeros Templarios was on account of his membership in a particular social group or on account of any other protected ground.”13 The Board further ruled that his “vague testimony that he faced employment discrimination due to his effeminate demeanor also does not establish the ba sis for an asylum claim.”14 The Board then turned to the new evidence submitted with the appeal, noting that Mr. Barragan Ojeda had claimed “for the first time on appeal that he is a homosexual and was persecuted and fears persecution on account of his status as a homosexual.”15 The Board noted that, under its precedents, 13 A.R. at 3. 14 Id. (citing Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007), for the principle that discrimination falls short of persecution). 15 Id. at 4. 10 No. 16 2964 an appeal “that presents a previously unraised basis for re lief,” including claims based on a new protected ground or “the same protected ground … predicated on a new or sub stantially different factual basis” rather than one “that merely clarifies or alters the initial claim,” is treated as a “new appli cation.”16 The sexual orientation and assault basis for the claim was new, the Board concluded, and, therefore, would be treated as a motion to remand to the IJ and assessed under the same standard as a motion to reopen. That standard, found at 8 C.F.R. § 1003.2(c)(1), could be met only if the alien presented evidence that “was not available and could not have been discovered or presented at the former hearing.” The Board concluded that Mr. Barragan Ojeda had not satis fied this requirement. His appellate brief to the Board claimed that his declaration regarding his sexual orientation and the sexual assault was not presented to the IJ “due to his youth, his lack of representation, and his fear of admitting that he identifies as a homosexual.”17 The Board noted, however, that Mr. Barragan Ojeda was “18 years old when he was placed in removal proceedings, was advised of the privilege of being represented by counsel, and proceedings were continued to allow him an opportunity to retain counsel before the merits hearing was held more than a year and a half after he first appeared before the [IJ].”18 Finally, the Board noted that Mr. Barragan Ojeda’s affidavit did not address any of these matters. 16 Id. (internal quotation marks omitted). 17 Id. (opinion of the Board). 18 Id. at 4–5. No. 16 2964 11 II DISCUSSION In his petition for review to this court, Mr. Barragan Ojeda repeats the position he took before the Board. He declines to challenge the decision of the IJ and the Board with respect to the extortion and violence his family faced from the Caballe ros Templarios. He first asserts various due process chal lenges to his proceedings before the IJ. He then focuses on the sexual orientation based claim that he asserted for the first time on appeal to the Board. More specifically, he contends that the IJ violated his right to due process of law when he denied Mr. Barragan Ojeda’s off the record request for a closed hearing and in the IJ’s conduct of the hearing, espe cially in the judge’s questioning of Mr. Barragan Ojeda. He next argues that his sexual orientation disclosure is not “new” evidence, but simply a clarification of his prior testimony. He also maintains that his testimony was credible throughout his proceedings. Finally, he contends that, as a homosexual, he is within a particular social group and has established his eligi bility for asylum. A. We first examine Mr. Barragan Ojeda’s claim that he was denied due process of law when the IJ denied his request, made before the record of proceedings was opened, that the 12 No. 16 2964 proceedings be closed and the gallery be cleared.19 He also as serts that the IJ subjected him to inappropriate questioning that amounted to a cross examination.20 As the Government’s brief correctly notes, Mr. Barragan Ojeda did not raise these due process challenges before the Board. “Although due process claims generally do not require exhaustion because the BIA does not have authority to review constitutional challenges, when those issues involve proce dural errors correctable by the BIA, applicants must raise such claims as part of their administrative appeal.” Capric v. Ash croft, 355 F.3d 1075, 1087 (7th Cir. 2004). Because the Board had the authority to correct the kinds of procedural failings asserted in this case,21 Mr. Barragan Ojeda was required to 19 See 8 C.F.R. § 1240.11(c)(3)(i) (providing that the IJ “shall inquire” whether the alien requests closure of proceedings and that they are to be “open to the public unless the alien expressly requests” otherwise). 20 See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538–39 (7th Cir. 2005) (holding that the IJ violated the alien’s right to due process in part by “questioning [that] clearly assume[d] the role of counsel for the Govern ment”). 21 As we have explained: Before we can reach most issues, however, the alien is re quired to raise them before the BIA. The only exception is where the BIA itself would be powerless to address the prob lem, as might be the case with some fundamental consti tutional claims. As we have noted before, however, many due process arguments are based on procedural failings that the BIA is capable of addressing. In those instances, the alien must exhaust his or her remedies at the BIA be fore bringing the claim before this court. No. 16 2964 13 raise them in the course of his administrative appeal. We therefore do not consider the substance of these claims. For the sake of completeness, however, we note that, even if Mr. Barragan Ojeda had preserved these claims by present ing them to the Board, they would not warrant relief. First, Mr. Barragan Ojeda has based his claim about the alleged de nial of closure of proceedings solely on unsupported asser tions in his brief, without citation to any evidence such as a supplemental declaration filed with the Board. Therefore, nei ther the Board nor this court has any basis for establishing that these off the record conversations had occurred. As to the contention that the IJ took on the role of the Gov ernment attorney, Mr. Barragan Ojeda cites no specific exam ples of inappropriate comments, interruptions, or anything Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006) (emphasis added) (cita tions omitted). The Board would not have been powerless to address the issues raised here. On the desire to testify in a closed hearing, we have held that where “the Board could have addressed” the claim by “re mand[ing] the case to the IJ for another hearing,” the failure to exhaust a due process claim is not excused. Lin v. Holder, 630 F.3d 536, 542 n.2 (7th Cir. 2010). We also have acknowledged that claims of bias on the part of the IJ, such as would be evident from inappropriate questioning, are re solvable by the Board in the first instance. Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008) (“There are literally dozens of Board decisions resolving claims of bias. When bias has been established, the Board has the authority to remand a case for a new hearing before a different IJ, and our research reveals that the BIA has done so on multiple occasions ….”). These types of objections relating to the conduct of the hearing are distinguished from those the Board cannot resolve, such as constitutional challenges to statu tory or regulatory provisions. See, e.g., Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). 14 No. 16 2964 else similar to IJ conduct we previously have found problem atic. The statute specifically allows the IJ to “receive evidence, and interrogate, examine, and cross examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1) (emphasis added). We have found no due process violation when an IJ, using these statu tory authorities, merely has taken an active and impartial role in the proceedings. When the IJ does not demonstrate “impa tience, hostility, or a predisposition against” an alien’s claim, and where the questions assisted in the development of the record on relevant points, the mere fact that the IJ elicited tes timony is not inappropriate and certainly does not raise due process concerns. Hasanaj v. Ashcroft, 385 F.3d 780, 784 (7th Cir. 2004).22 “An IJ, unlike an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record.” Id. at 783 (internal quotation marks omitted) (quoting Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002)). Particularly with a pro se respondent such as Mr. Bar ragan Ojeda, fair questioning by the IJ often is required to ob tain information from the alien necessary for a reasoned deci sion on the claim. The authority can be misused, and we have not hesitated to grant an alien’s petition where the IJ’s con duct has been hostile or abusive, or has prevented rather than facilitated the creation of an evidentiary record in support of an alien’s claim. See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005) (noting frequent interruptions and 22 In Hasanaj v. Ashcroft, 385 F.3d 780, 784 (7th Cir. 2004), we reviewed multiple instances of the IJ questioning the petitioner and noted: “These questions were to develop the record with whatever the Petitioner had to offer for his case. The questions reflect what the IJ still needed to know in order to make a fully informed decision. There are no questions, or group of questions that indicate that this IJ was anything but thorough and fair in his obligation to this Petitioner.” No. 16 2964 15 hostility toward the alien by the IJ); Podio v. I.N.S., 153 F.3d 506, 510 (7th Cir. 1998) (finding a due process violation based on the IJ’s impatience, frequent interruptions, and arbitrary refusal to hear testimony that would have corroborated the alien’s case). Mr. Barragan Ojeda’s general complaints about the IJ’s conduct simply do not rise to this level. Indeed, we have examined the transcript of the proceedings before the IJ. That record reveals no basis for Mr. Barragan Ojeda’s conten tion. The IJ carefully and thoroughly asked him about his claim and explored alternate characterizations of the claim that might allow relief. There is no basis for an allegation of unfair ness. B. We now consider Mr. Barragan Ojeda’s contention that he is eligible for asylum on the basis of his sexual orientation and as a victim of sexual assault. These grounds were raised for the first time before the Board and supported there by a short supplemental declaration. The Board treated this matter as a motion to remand or reopen for consideration of new evi dence. It relied on its own decision in Matter of M A F , 26 I. & N. Dec. 651 (BIA 2015), which held that an asylum claim “that presents a previously unraised basis for relief,” includ ing one “based on the same protected ground” but “predi cated on a new or substantially different factual basis,” is a “new application.” Id. at 655. The Board rejected Mr. Bar ragan Ojeda’s argument that he simply was clarifying or 16 No. 16 2964 slightly altering his claim. Rather, it held that he had pre sented a new claim that had to be treated as a motion to reo pen.23 The Board was on solid ground in concluding that the mere prior mention of effeminacy and employment related discrimination was insufficient to raise within his original claim an entirely new narrative of sexual orientation, sexual assault, and discrimination against gay men in Mexico. In deed, even if we were to consider the sexual orientation basis to have been raised effectively in the earlier proceeding be cause of his testimony about effeminacy, his appellate sub missions introduce facts “substantially different from those in the earlier application.” Id. at 655. Mr. Barragan Ojeda’s re quest for asylum is not simply presented in more detail, it is wholly transformed by the new assertions he made before the Board. Furthermore, even if his claim before the Board could be characterized as a continuation of the original application, the Board had no authority to evaluate on its own that factual submission. The Board cannot make factual findings in the course of an appeal; the regulations instruct a party seeking to introduce new facts into the evidentiary record to submit a motion to remand.24 We have acknowledged that such mo tions, which are “really in the nature of a motion to reopen,” 23 A.R. at 4 (citing Matter of Ige, 20 I. & N. Dec. 880, 884 (BIA 1994)). 24 8 C.F.R. § 1003.1(d)(3)(iv) provides: Except for taking administrative notice of commonly known facts such as current events or the contents of of ficial documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that No. 16 2964 17 should be evaluated under the substantive standards for reo pening set forth in 8 C.F.R. § 1003.2(c)(1). Darinchuluun v. Lynch, 804 F.3d 1208, 1217 (7th Cir. 2015) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992)). The applicable reg ulations provide, moreover, that a motion “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evi dentiary material.” 8 C.F.R. § 1003.2(c)(1). In any event, such a motion should be granted only when the “evidence sought to be offered is material and was not available and could not have been discovered or presented at the for mer hearing.” Id. (emphasis added). Finally, in the case of dis cretionary relief such as asylum, a motion to reopen should not be granted if the ability to seek “relief was fully ex plained” in the course of earlier proceedings “and an oppor tunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.” Id. The Board appropriately concluded that Mr. Barragan Ojeda’s additional submissions on appeal did not meet the re quirements for a motion to remand. Specifically, it correctly ruled that his motion was not “accompanied by evidence which was not available and could not have been discovered the Board cannot properly resolve an appeal without fur ther factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service. 18 No. 16 2964 or presented at the former hearing.”25 Counsel’s brief sug gested that “his youth, his lack of representation, and his fear of admitting that he identifies as a homosexual” prevented him from presenting the full facts before the IJ.26 As the Board noted, however, Mr. Barragan Ojeda’s own supplemental “affidavit d[id] not address his reasons for making this claim for the first time on appeal.”27 Under these circumstances, the attorney’s assertions about Mr. Barragan Ojeda’s state of mind before the IJ simply do not suffice to establish that reo pening was warranted. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (noting that, in request to reopen, “[c]ounsel’s un supported assertions in respondent’s brief do not establish that respondent could satisfy” the requirements for relief).28 In short, even if the claim of persecution on the ground of ho mosexuality had been properly before the Board, it could not have considered that matter; nor could it have remanded the matter for further proceedings before the IJ. 25 A.R. at 4; see also 8 C.F.R. § 1003.2(c)(1). 26 Id. (opinion of the Board). 27 Id. at 4 n.1. 28 We need not consider, therefore, whether any of the reasons counsel proffers could justify, on the appropriate record, a failure to mention sex ual orientation earlier in the removal proceedings. Cf. Moab v. Gonzales, 500 F.3d 656, 661 (7th Cir. 2007) (concluding that, in a credible fear inter view, it was “reasonable that [the petitioner] would not have wanted to mention his sexual orientation for fear that revealing this information could cause further persecution as it had in his home country”). No. 16 2964 19 Conclusion Mr. Barragan Ojeda has not demonstrated that he was de nied due process of law by the IJ’s considering his asylum claim. The Board was on solid ground in evaluating Mr. Bar ragan Ojeda’s claim as a motion to remand. His submissions on appeal amounted to a wholesale replacement of his origi nal requests for relief before the IJ, supported by entirely new facts. On the merits of a request for remand, Mr. Barragan Ojeda created no evidentiary record of his reasons for failing to disclose his sexual orientation claim before the IJ. Without any such evidence, the Board had no basis to conclude that the evidence he sought to introduce on appeal was previously unavailable. The Board therefore did not err in denying a re mand to present his new evidence. PETITION DENIED