Flavio Pacheco-Moran v. Merrick B. Garland

United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-3779 No. 22-2383 ___________________________ Flavio Pacheco-Moran lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: February 14, 2023 Filed: June 5, 2023 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ LOKEN, Circuit Judge. Flavio Pacheco-Moran, a forty-seven-year-old native and citizen of Mexico, first entered the United States in 1991 and most recently in 1996 without inspection. The Department of Homeland Security (“DHS”) initiated removal proceedings in January 2013. Pacheco-Moran conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), claiming past persecution and a well-founded fear of future persecution and torture in Mexico because of his membership in two Particular Social Groups (“PSGs”), “Married Homosexual Men” and “Homosexual Men in Mexico.” More than five years later, after evidentiary hearings but before Pacheco-Moran applied to the U.S. Citizenship and Immigration Services for a U-visa, the Immigration Judge (“IJ”) denied Pacheco-Moran’s motion for a continuance to file a U-visa application. Then, in a lengthy Decision and Memorandum, the IJ denied his application for asylum, withholding of removal, and CAT relief on the merits. The Board of Immigration Appeals (“BIA”) dismissed Pacheco-Moran’s administrative appeal in a November 2021 opinion and denied his motion to reconsider in June 2022. Pacheco-Moran petitions for review of both BIA orders. We deny the petitions for review. I. Background To be eligible for asylum, an applicant must show that he is a refugee, defined in the Immigration and Nationality Act as a person unable or unwilling to return to his native country due to past persecution or a well-founded fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i) (emphasis added). The INA also provides that the asylum applicant must “demonstrate[] by clear and convincing evidence that the application has been filed within one year after the alien’s arrival in the United States.” § 1158(a)(2)(B). Pacheco-Moran’s last arrival was in 1996, more than sixteen years prior to the removal proceedings. He had not applied for asylum. The INA provides that an application may be considered if the alien satisfies the Attorney General of “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing.” § 1158(a)(2)(D). At an initial hearing in April 2013, the IJ asked Pacheco-Moran’s attorney if Pacheco-Moran is “seeking any sort of a U visa.” See generally Islas-Saldana v. -2- Garland, 59 F.4th 927 (8th Cir. 2023). Counsel responded that Pacheco-Moran was a victim of a qualifying 1996 felony assault crime in Compton, California. Counsel was “having difficulties” obtaining the required law enforcement certification. The IJ scheduled the next hearing for September 9, 2013 and directed Pacheco-Moran to file by that day a Form I-589 application for asylum and other relief, adding …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals