Flavio Pacheco-Moran v. Merrick B. Garland, No. 22-2383 (8th Cir. 2023)
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Petitioner, a forty-seven-year-old native and citizen of Mexico, first entered the United States in 1991 and, most recently, in 1996 without inspection. The Department of Homeland Security (“DHS”) initiated removal proceedings. Petitioner conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), claiming past persecution and well-founded fear of future persecution and torture in Mexico because of his membership in two Particular Social Groups (“PSGs”), “Married Homosexual Men” and “Homosexual Men in Mexico.” More than five years later, after evidentiary hearings but before Petitioner applied to the U.S. Citizenship and Immigration Services for a U-visa, the Immigration Judge (“IJ”) denied Petitioner’s motion for a continuance to file a U-visa application. Then, in a lengthy Decision and Memorandum, the IJ denied his application for asylum, withholding of removal and CAT relief on the merits. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s administrative appeal and denied his motion to reconsider. Petitioner petitioned for review of both BIA orders.
The Eighth Circuit denied the petitions. The court explained that under the deferential substantial evidence standard, evidence of “general, widespread discrimination” does not trump the BIA’s finding, based on specific facts in the administrative record, that Petitioner could avoid future persecution by reasonably relocating from his rural home town to another part of Mexico. The BIA pointed to Mexico City, where Petitioner’s husband is from and which is reported to have “taken the lead in . . . taking measures to protect the rights of the LGBT population.”
Court Description: [Loken, Author, with Colloton, and Benton, Circuit Judges] Petition for Review - Immigration. Substantial evidence supported the agency finding that petitioner failed to demonstrate a well-founded fear of persecution based on his membership in the particular social group of married homosexual males in Mexico, and he was not eligible for asylum on this ground; nor was he eligible for withholding of removal as he failed to establish a clear probability that his life or freedom would be threatened because of membership in the group; claim for CAT relief based on the claim rejected; with respect to petitioner's alternative particular social group, homosexual men in Mexico, the agency did not err in finding the claim was barred by the one-year bar contained in 8 U.S.C. Sec. 1158(a)(2)(B); with respect to his request for withholding of removal based on his membership in this group, the agency did not err in finding petitioner had not suffered past persecution and had not shown the inability to avoid future persecution by relocating; petitioner failed to preserve for review his third proposed particular social group - Mexicans Perceived to be Against Catholicism; petitioner's challenge to the agency's denial of his motion to reopen is rejected.
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