NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0010n.06
No. 22-3137
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
FILED
ROSENDO ALVAREZ-HERNANDEZ, Jan 05, 2023
)
DEBORAH S. HUNT, Clerk
Petitioner, )
)
) ON PETITION FOR REVIEW
v.
) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
MERRICK B. GARLAND, Attorney General, ) APPEALS
Respondent. )
)
Before: SILER, BATCHELDER, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Rosendo Alvarez-Hernandez petitions for review of the
Board of Immigration Appeals’ denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture. We deny his petition.
I.
Rosendo Alvarez-Hernandez, a citizen of Mexico, entered the United States illegally in
2009. The government began removal proceedings in 2013, and Alvarez-Hernandez conceded
removability. Around the same time, according to Alvarez-Hernandez, the “La Familia” gang
began targeting his family in Mexico. They threatened Alvarez-Hernandez’s father with a gun and
robbed him of 40,000 pesos; and they attacked and kidnapped his brother until their father agreed
to pay a ransom. Alvarez-Hernandez thereafter filed applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT), alleging that, if he returned
to Mexico, La Familia would target him next.
No. 22-3137, Alvarez-Hernandez v. Garland
An immigration judge denied Alvarez-Hernandez’s applications in an opinion that cited,
among other things, “the legal standards contained in the standard language addendum.” Alvarez-
Hernandez received a copy of the IJ’s decision which did not include that addendum. He then
filed a “partial brief in support of appeal” with the Board of Immigration Appeals, in which he
asked the Board to provide the IJ’s complete decision and reset the briefing schedule. Alvarez-
Hernandez also argued that the IJ’s failure to provide the addendum violated due process and that
the Board should reverse the IJ’s decision on its merits. The Board declined to provide the legal
addendum or reset the briefing schedule and issued an opinion affirming the IJ’s denial of relief.
This petition followed.
II.
When the Board issues its own opinion rather than simply affirming the immigration
judge’s decision, we review the Board’s decision directly. Umaña–Ramos v. Holder, 724 F.3d
667, 670 (6th Cir. 2013). We review legal questions de novo and uphold the agency’s factual
findings “unless any reasonable adjudicator would be compelled to conclude the contrary.” Id.
Alvarez-Hernandez argues primarily that the Board denied him due process by deciding
his case without providing a complete copy of the IJ’s decision. To evaluate this claim, “we ask
whether there was a defect in the removal proceeding, and if so, whether [Alvarez-Hernandez] was
prejudiced by the defect.” Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir. 2012). “Due process
demands a reasonably accurate and complete transcript to allow for meaningful appellate review
and to allow the alien to mount a challenge to the proceedings conducted before the IJ.” Sterkaj
v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006).
Here, the Board declined to issue the legal addendum on the ground that doing so was “not
necessary.” The Board should have known better than that: the government has an “obligation
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No. 22-3137, Alvarez-Hernandez v. Garland
under 8 U.S.C. § 1229a(b)(4)(C) to prepare a reasonably accurate and complete record of the
removal hearing.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (cleaned up).
And Alvarez-Hernandez had a due-process right to review that record as he prepared his appeal.
Sterkaj, 439 F.3d at 279. The Board’s failure to provide it therefore created “a defect in the
removal proceeding.” Abdallahi, 690 F.3d at 472.
Whether the Board’s mistake entitles Alvarez-Hernandez to relief depends on its
prejudicial effect. Id. To establish prejudice, Alvarez-Hernandez must show that the incomplete
record precluded him from raising an argument before the Board that “would have changed the
outcome of his case.” Garza-Moreno, 489 F.3d at 242. We therefore consider the merits of
Alvarez-Hernandez’s claims for relief.
To qualify for asylum, an applicant must show, among other things, that he has faced
persecution in the past or has a “well-founded fear of future persecution.” Pilica v. Ashcroft, 388
F.3d 941, 950 (6th Cir. 2004). “When an asylum claim focuses on non-governmental conduct, its
fate depends on some showing that the alleged persecutors are aligned with the government or that
the government is unwilling or unable to control them.” Khalili v. Holder, 557 F.3d 429, 436 (6th
Cir. 2009) (quoting Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir. 2007)).
Here, Alvarez-Hernandez based his claims exclusively on private conduct by La Familia.
As to the element of governmental control, Alvarez-Hernandez provided only his own testimony,
which described his father’s and brother’s opinions about the Mexican police. The IJ considered
that evidence, but concluded that Alvarez-Hernandez—whose family never sought police
protection—had not met his burden to show that the persecution he feared was attributable in part
to the Mexican government. That finding was dispositive, Khalili, 557 F.3d at 436; and it was
fully explained in the IJ’s opinion. Yet Alvarez-Hernandez failed to challenge it before the Board,
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No. 22-3137, Alvarez-Hernandez v. Garland
and he does not argue that the incomplete record caused his waiver. Alvarez-Hernandez therefore
has not shown that a complete record “would have changed the outcome of his case.” Garza-
Moreno, 489 F.3d at 242.
Alvarez-Hernandez contends that the missing addendum would have helped him challenge
the IJ’s analysis as to a different element of his claim. But without a showing that the Mexican
government was “unwilling or unable to control” La Familia, the law required the IJ to deny all of
Alvarez-Hernandez’s applications. Khalili, 557 F.3d at 436; Ceraj v. Mukasey, 511 F.3d 583, 594
(6th Cir. 2007). That means Alvarez-Hernandez’s other arguments would not have made a
difference before the Board. Hence they do not entitle Alvarez-Hernandez to relief. Garza-
Moreno, 489 F.3d at 242.
Finally, Alvarez-Hernandez argues that the Board erred by affirming the denial of his
applications for relief. But, as explained above, Alvarez-Hernandez waived any objection to the
IJ’s findings on the element of governmental control by failing to raise the issue before the Board,
Singh v. Rosen, 984 F.3d 1142, 1155 (6th Cir. 2021); and that waiver is fatal to each of his claims.
Ceraj, 511 F.3d at 594.
* * *
Alvarez-Hernandez’s petition is denied.
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