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
SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
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. Having jurisdiction under 8 U.S.C. §
1252(a), we deny the petition.
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.
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.
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.
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
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.
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).
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 ...