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Mendez-Gomez v. Barr

United States Court of Appeals, Eighth Circuit

June 27, 2019

Jose Luis Mendez-Gomez, also known as Julio Cesar Estrada-Escobar, also known as Jose Aul Torres-Santiago Petitioner
William P. Barr, Attorney General of the United States Respondent

          Submitted: March 13, 2019

          Petition for Review of an Order of the Board of Immigration Appeals

          Before SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.


         Jose Luis Mendez-Gomez, a citizen of Guatemala, petitions for review of (1) the Department of Homeland Security's (DHS) reinstatement of a prior order for his removal, and (2) a Board of Immigration Appeals (BIA) decision that affirmed an immigration judge's (IJ) denial of his applications for withholding of removal and deferral of removal under the Convention Against Torture (CAT) in withholding-only proceedings.[1] Having jurisdiction under 8 U.S.C. § 1252(a), we deny the petition.


         Mendez-Gomez, a Guatemalan citizen, unlawfully entered the United States in December 2002. In August 2003, after Mendez-Gomez was convicted of making a false claim of United States citizenship in violation of 18 U.S.C. § 911, an IJ issued a final order of removal. Mendez-Gomez was removed from the United States. He reentered the United States in late 2003, using a fraudulent lawful permanent resident card, or "green card," to obtain entry through a checkpoint just inside the United States-Mexico border.

         In July 2017, an Otter Tail County, Minnesota police deputy stopped Mendez-Gomez's vehicle for an equipment violation. When Mendez-Gomez produced only a Guatemalan passport as identification, the deputy requested immigration assistance. A Border Patrol agent telephoned the deputy and spoke to Mendez-Gomez, who admitted that he had entered the United States roughly 16 years prior and had no documents allowing him to legally remain in the country. Mendez-Gomez claimed he had never been arrested by immigration officials before, but he presented no documentation allowing him to enter or remain in the United States and was taken into immigration custody.

         Upon entering Mendez-Gomez into the immigration database, Border Patrol agents discovered his prior order of removal. Mendez-Gomez then made a conclusory statement about legally entering the United States, refused to answer any more questions or sign any immigration documents, and requested to speak with his attorney. Subsequently, DHS filed a Notice of Intent/Decision to Reinstate regarding Mendez-Gomez's prior removal order. Mendez-Gomez checked a box on that form indicating he wished to make a statement contesting the reinstatement, but there is nothing in the administrative record showing that he did so.

         After Mendez-Gomez indicated that he feared return to Guatemala, the United States Citizenship and Immigration Services conducted a reasonable fear hearing. At this hearing, Mendez-Gomez testified that, in 2001, he borrowed money from a loan shark named Don Lucho to pay for his mother's lung surgery. Mendez-Gomez has not repaid the loan. Although he has never been attacked because of the unpaid debt, he testified that two armed men appeared at a soccer game in the summer of 2001 and asked whether members of his family were in attendance and that the men were looking for him because he had not repaid the loan. Mendez-Gomez believes that the men would have tortured or killed him for failing to pay the money back. He further believes that three of his cousins were murdered for being with him at the soccer field that day. Mendez-Gomez's father and other family members in Guatemala received telephone calls as late as 2016 threatening Mendez-Gomez's life due to the unpaid loan. Mendez-Gomez has never reported any of these incidents to the police because he is afraid they may be corrupt or subject to bribes.

         The asylum officer denied Mendez-Gomez's reasonable fear application. An IJ then vacated the asylum officer's determination and placed Mendez-Gomez into withholding-only proceedings for review of his applications for withholding of removal and CAT review. The IJ ultimately denied Mendez-Gomez's applications. The BIA upheld the IJ's decision, finding that Mendez-Gomez failed to present any argument that he had been improperly placed in reinstatement proceedings, failed to present meaningful argument on his CAT claim, and failed to show the Guatemalan government was unable or unwilling to protect him. Mendez-Gomez now petitions this Court for review of the BIA's decision.


         We first address Mendez-Gomez's claim that DHS violated his due process rights by improperly reinstating his prior removal order. "For some time, the law has provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully enters again." Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 (2006). In a challenge to reinstatement of a prior final order of removal, our jurisdiction is limited to the reinstatement itself and we may not reopen or review the prior order. 8 U.S.C. § 1231(a)(5).

         "We consistently have required issue exhaustion in post-[Illegal Immigration Reform and Immigrant Responsibility Act of 1996] immigration cases, and referred to the rule as 'jurisdictional' . . . ." Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005). Thus, failure to raise an issue before the administrative agency precludes a petitioner from raising it on appeal. See Escoto-Castillo v. Napolitano, 658 F.3d 864, 866 (8th Cir. 2011) ("We have repeatedly held ...

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