927 F.3d 13
1st Cir.2019Background
- Jaime Rodriguez-Palacios, a Mexican national, entered the U.S. without inspection in 2007 and was placed in removal proceedings in 2012.
- He applied for asylum, withholding of removal, and CAT protection in November 2012 (untimely under the one-year asylum rule).
- At the IJ hearing Rodriguez described a 2003 attempted assault at a party (alleged gang-related), later gang violence near his hometown, and fear of kidnapping/extortion if he returned from the U.S.; his family had not been personally targeted.
- The IJ denied asylum (as untimely), withholding, and CAT relief but granted voluntary departure; the BIA affirmed the IJ’s factual findings and dismissed his appeal.
- Rodriguez petitioned this court; he also noted a Pereira argument about a defective Notice to Appear but did not press it here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may review BIA’s determination that asylum application was untimely and unexcused | Rodriguez contends the BIA applied an incorrect legal standard and invokes §1252(a)(2)(D) to permit review | Government argues timeliness determinations are committed to the Attorney General and are not reviewable under §1158(a)(3) | Dismissed for lack of jurisdiction: this is a factual/evidentiary challenge to excusing circumstances, not a reviewable legal/constitutional claim |
| Whether withholding of removal was wrongly denied | Rodriguez challenges denial (briefing underdeveloped) | Government defends BIA/IJ factual findings that he failed to show likelihood of persecution | Denied/waved: claim deemed waived for failure to develop argument in opening brief |
| Whether CAT protection should have been granted (risk of torture with state acquiescence) | Rodriguez argues general country violence and a nearby murder show risk of torture if returned | Government argues record lacks evidence he would be singled out or that public officials would acquiesce | Denied: substantial evidence supports the BIA/IJ finding that he is unlikely to be tortured and there is no evidence of state consent/acquiescence |
| Pereira notice defect and collateral relief (not decided) | Rodriguez noted Pereira might render NTA deficient and affect relief eligibility | Government not litigating here; BIA motion to remand pending | Not addressed: Rodriguez did not brief the issue to this court, so the panel declined to reach it |
Key Cases Cited
- Ahmed v. Holder, 765 F.3d 96 (1st Cir. 2014) (review covers both BIA and IJ decisions when BIA writes separately while approving IJ)
- Guaman-Loja v. Holder, 707 F.3d 119 (1st Cir. 2013) (substantial-evidence standard governs review of agency factfinding)
- Seng v. Holder, 584 F.3d 13 (1st Cir. 2009) (quoting standard for accepting agency factfinding unless compelled otherwise)
- Usman v. Holder, 566 F.3d 262 (1st Cir. 2009) (jurisdictional bar on reviewing untimely asylum determinations; §1252(a)(2)(D) exception explained)
- Lutaaya v. Mukasey, 535 F.3d 63 (1st Cir. 2008) (limits on judicial review of one-year asylum deadline determinations)
- Pan v. Gonzales, 489 F.3d 80 (1st Cir. 2007) (distinguishing disguised factual challenges from reviewable legal claims)
- Oroh v. Holder, 561 F.3d 62 (1st Cir. 2009) (no jurisdiction to review factual challenges to timeliness excused-circumstances determinations)
- Guillaume v. Gonzales, 504 F.3d 68 (1st Cir. 2007) (standard for withholding/CAT: "more likely than not")
- United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (issues insufficiently briefed or perfunctory are waived)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defects in Notice to Appear can affect the start of removal proceedings; noted but not adjudicated here)