Petition for Asylum – New Evidence

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7^th Circuit Court of Appeals

Case Name: Juan Carlos Barragan-Ojeda v. Jeff Sessions

Case No.: 16-2964

Officials: POSNER, RIPPLE, and ROVNER, Circuit Judges.

Focus: Petition for Asylum – New Evidence

Juan Carlos Barragan‐Ojeda, a native and citizen of Mexico, entered the United States without authorization in 2013. He was apprehended at the border and requested asylum. Appearing pro se before the immigration judge (“IJ”), he claimed eligibility for asylum because a Mexican criminal gang had persecuted him. At the conclusion of his testimony, he briefly mentioned that he had been the victim of discrimination in employment because he was effeminate, but, when questioned by the IJ, he denied that he was gay.  The IJ denied asylum, and Mr. Barragan‐Ojeda appealed to the Board of Immigration Appeals (“Board” or “BIA”). There, represented by counsel, Mr. Barragan‐Ojeda filed an additional affidavit asserting facts not before the IJ: he claimed that he was gay and that he had been persecuted be‐ cause of his sexual orientation. The Board adopted and af‐ firmed the IJ’s denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board treated the appeal as a motion to remand and deter‐ mined that the requirements for such a motion were not sat‐ isfied. Mr. Barragan‐Ojeda now petitions for review in this court. He submits that the IJ denied him due process in the conduct of the proceedings and that the Board erred in deny‐ ing him asylum on the basis of his sexual orientation. We deny the petition for review. Mr. Barragan‐Ojeda’s due process challenge is premised on the IJ’s conduct of the hearing; this sort of claim must be presented to the Board be‐ fore it can be presented here, and Mr. Barragan‐Ojeda did not do so. In any event, nothing in the record suggests that the IJ’s conduct of his hearing evinced the kind of impatience and bias that might be characterized as a violation of due process of law. The Board correctly evaluated the new evidence submit‐ ted by Mr. Barragan‐Ojeda under the standards applicable to a reopening. It correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

Petition Denied

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.