United States Court of Appeals
For the First Circuit
No. 04-1358
LUIS ENRIQUE GALICIA,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
Lynch, Circuit Judge.
Donald H. Barnes on brief for petitioner.
David E. Dauenheimer, Attorney, Office of Immigration
Litigation, Civil Division, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Richard M. Evans, Assistant Director,
on brief for respondent.
January 27, 2005
LYNCH, Circuit Judge. Luis Enrique Galicia
("petitioner") is a gay man who was, as a result of his
homosexuality, both beaten and verbally abused in 1998 by his
neighbors in his home village of Jalapa, Guatemala. He entered the
United States illegally later that year, applied for asylum, and
had a removal hearing (after many continuances) on September 6,
2002. The Immigration Judge (IJ) that day denied his claims for
asylum and withholding of removal based on claimed persecution
against homosexuals, but granted Galicia voluntary departure. The
Board of Immigration Appeals (BIA) summarily affirmed on February
11, 2004, which, under Albathani v. INS, 318 F.3d 365, 373 (1st
Cir. 2003), means that the IJ's decision is the final order for
purposes of the petition for review now before us.
Petitioner makes two arguments: (1) there was procedural
error by the IJ in excluding certain belatedly proffered
documentary evidence, and (2) the IJ's findings were not supported
by substantial evidence. In support of these arguments,
petitioner's brief cites to extra-record reports, including a 2003
U.S. State Department Country Report on Human Rights Practices in
Guatemala.
Claimed Procedural Error
In order to make out a viable claim of procedural error
in this context, petitioner must show that the exclusion of the
documentary evidence was an abuse of discretion by the IJ. See
-2-
Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004)
(upholding IJ's refusal to accept late-filed evidence under abuse
of discretion standard); cf. Aguilar-Solis v. INS, 168 F.3d 565,
568 (1st Cir. 1999) ("An immigration judge, like other judicial
officers, possesses broad (though not uncabined) discretion over
the conduct of trial proceedings."). Inherent in that standard is
that there must be some prejudice to petitioner. See Chay-
Velasquez, 367 F.3d at 756.
The offer of evidence was made on the day of the hearing,
in violation of both the local rule requiring pre-hearing marking
of exhibits and the IJ's express warning of the need for adherence
to the rule. The record is also clear that the documents were
incomplete and not in proper format. Moreover, the record does not
reveal why the tender of the evidence was so late. There was no
abuse of discretion by the IJ in refusing to admit such evidence.
Claimed Lack of Substantial Evidence
It was petitioner's burden to establish that he met the
criteria for asylum by establishing that he (1) suffered past
persecution or (2) has a well founded fear of future persecution,
based on petitioner's race, religion, nationality, membership in a
particular social group, or political opinion, and that petitioner
is unable or unwilling to avail him- or herself of the protection
of that country because of such persecution. See 8 C.F.R.
§ 208.13(a)-(b). The IJ found his testimony and evidence
-3-
insufficient in at least two respects. First, with respect to past
persecution, Galicia did not show that the harassment he suffered
was by the government or a group the government could not control.
Silva v. Ashcroft, No. 03-2738, 2005 WL 18231 at *5 (1st Cir. Jan.
5, 2005) ("Action by non-governmental actors can undergird a claim
of persecution only if there is some showing that the alleged
persecutors are in league with the government or are not
controllable by the government."). The beating he received was by
young men, including one he knew from his church, and Galicia made
no effort to contact the authorities or any other group in the
country that might be able to help him. Second, with respect to
future persecution, the IJ concluded that Galicia had not shown he
could not safely live elsewhere in Guatemala and, thus, had not
demonstrated that a reasonable person in his position would fear
persecution if returned to Guatemala. See Mukamusoni v. Ashcroft,
390 F.3d 110, 120 (1st Cir. 2004) ("[T]o show a well-founded fear
or future persecution," an applicant must show "that [his] fear is
reasonable."). As to that, Galicia made no effort to relocate
elsewhere, and he explained this only on the basis that he did not
have family elsewhere. A 1997 Department of State Country
Conditions Report introduced at the hearing by the respondent did
not support Galicia's claims of country-wide and government-
sponsored or condoned discrimination against homosexuals. We have
carefully reviewed the record and the IJ's conclusions are
-4-
supported by substantial evidence.
We add one more note. It was improper for several
reasons for petitioner's counsel to cite the 2003 U.S. State
Department Country Report on Human Rights Practices in his brief to
this court. This document was not proffered to the IJ or the BIA;
review by this court is confined to the administrative record. See
8 U.S.C. § 1253(b)(4)(A); Mekhoukh v. Ashcroft, 358 F.3d 118, 123
(1st Cir. 2004). It is true that the report post-dated the removal
proceeding. But it or similar reports could have been called to
the attention of the BIA, see Hazzard v. INS, 951 F.2d 435, 440
(1st Cir. 1991), or could have been made the subject of a motion to
reopen, see 8 C.F.R. § 1003.2(a), (c). Perhaps counsel failed to
take these steps because the newly cited material does not compel
the conclusion he seeks. Indeed, the 2003 State Department report
refers to violence against "homosexual male 'sex' workers."
Counsel, in citing the report to us, should not have attempted to
mislead the court by omitting the word "sex" and referring only to
"homosexual male workers." Petitioner, as we understand it, has
never claimed he was a "sex worker."
The IJ and BIA decisions are affirmed.
-5-