Barragan-Ojeda v. Sessions, 853 F.3d 374

Background

Juan Carlos Barragan‑Ojeda, a Mexican national, entered the U.S. in 2013, sought asylum, and proceeded pro se to an IJ merits hearing in April 2015. He was 18 at entry and had time to seek counsel prior to the hearing.
Before the IJ he testified that the Caballeros Templarios extorted and threatened his family; the IJ denied asylum on that basis because the harm was generalized extortion and not tied to a protected ground (no viable particular social group).
At the end of the IJ hearing Barragan‑Ojeda mentioned employment discrimination for being "effeminate" but denied being homosexual; the IJ concluded perceived effeminacy alone did not show persecution as an imputed homosexual.
On appeal to the BIA, now represented, Barragan‑Ojeda submitted a new affidavit alleging he is gay, was sexually assaulted, and persecuted on account of sexual orientation; he also submitted country‑condition materials.
The BIA treated the new sexual‑orientation/assault theory as a new application (motion to remand/reopen) and denied relief because Barragan‑Ojeda failed to show the new evidence was unavailable at the IJ hearing or why it was not presented earlier.
Barragan‑Ojeda petitioned the Seventh Circuit, arguing (1) IJ deprived him of due process (denying closed hearing, improper questioning) and (2) the sexual‑orientation claim was not truly "new" and should have been considered.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did IJ deny due process by refusing a closed hearing and by questioning that amounted to cross‑examination/bias?	Barragan‑Ojeda: IJ abused discretion, denied closure, and acted like counsel/adversary in questioning, impairing fairness.	Gov't: Due process claims based on procedural matters were not raised to the BIA and are therefore unexhausted; IJ questioning was within statutory authority and aimed at developing the record.	Court: Due process claims unexhausted before BIA so not considered; record shows no hostility or bias—IJ’s questioning permissible and did not deny due process.
Was the sexual‑orientation/sexual‑assault claim properly before the BIA (i.e., merely a clarification vs. a new claim requiring remand)?	Barragan‑Ojeda: New claim is clarification of earlier mention of effeminacy and thus part of original application.	BIA/Gov't: Affidavit adds substantially different facts (assault, explicit sexual‑orientation claim) and so is a new basis that must meet motion‑to‑reopen standards.	Court: The BIA correctly classified the material as a new application; it was properly treated as a motion to reopen/remand.
If the claim was new, did Barragan‑Ojeda show the evidence was unavailable and justify reopening?	Barragan‑Ojeda: He was young, inexperienced, ashamed, lacked counsel, and had family in courtroom—reasons for not disclosing earlier.	BIA/Gov't: These assertions are unsworn/unsupported; proceedings had been continued to allow counsel and he was adult; affidavit did not explain prior nondisclosure.	Court: Denial affirmed—counsel’s unsworn assertions insufficient and affidavit failed to show evidence was unavailable at the prior hearing.
Could the BIA independently consider new factual assertions on appeal without remand?	Barragan‑Ojeda: N/A (argued substantive merits on appeal).	BIA/Gov't: Board lacks authority to make new factual findings on appeal; must remand for factfinding.	Court: BIA correctly refrained from factfinding and applied motion‑to‑reopen standard; it could not grant asylum on new facts without remand.

Key Cases Cited

Capric v. Ashcroft, 355 F.3d 1075 (7th Cir. 2004) (administrative exhaustion required for procedural due process claims the BIA can remedy)
Hasanaj v. Ashcroft, 385 F.3d 780 (7th Cir. 2004) (IJ may actively question to develop the record without violating due process absent hostility or bias)
Rodriguez Galicia v. Gonzales, 422 F.3d 529 (7th Cir. 2005) (IJ questioning that assumes role of government counsel or displays hostility can violate due process)
Podio v. I.N.S., 153 F.3d 506 (7th Cir. 1998) (due process violation where IJ’s impatience and refusals prevented development of corroborating testimony)
INS v. Phinpathya, 464 U.S. 183 (U.S. 1984) (unsupported counsel assertions do not satisfy standards for reopening)
Darinchuluun v. Lynch, 804 F.3d 1208 (7th Cir. 2015) (motions to remand treated like motions to reopen and evaluated under reopening standards)
Feto v. Gonzales, 433 F.3d 907 (7th Cir. 2006) (discussion of exhaustion where BIA could address procedural errors)
Ghaffar v. Mukasey, 551 F.3d 651 (7th Cir. 2008) (BIA has authority to address IJ bias and remand if bias established)
Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007) (recognizing circumstances where failure to disclose sexual orientation may be reasonable in credible‑fear context)
Kahanudin v. Gonzales, 500 F.3d 619 (7th Cir. 2007) (discrimination alone may fall short of persecution)