U.S. Department of Justice Executive Office for Immigration Review Board of 1mmi ration Appeals Oflicc our: ChteiClelk um Me, rm 1mm Fem Church Virginia 2204/ March 27, 2018 Mark A. Flores, Esq. Charles D. Tobin, Esq. Littler Mendelson, P.C. Ballard Spahr, LLP 2001 Ross Avenue 1900 Street, NW 1211" Floor Suite 1500, Lack BOX 116 Washington, DC 20005 Dallas, TX 75201 Steven ll 7ansberg, Esq. Ballard Spahr, LLP 1225 17'h Street, Ste., 2300 Denver, CO 80202 Re: Gutierrez Soto, Emilio Lead) Gutierrez Soto, Oscar (Rider) Dear Counsel: The Board of Immigration Appeals received on March 19t 201%, your request to file amicus curiae brief and the brief itself in the above referenced case currently pending at the Board. Your briefhas been accepted and placed in the record ufproceedings. If response is desired, respondent's attorney and the Department of Humeland Security are granted until AQril 10 2018, to respond to the amicus brief. The Board asks the Department of Homeland Security and respondents counsel to direct their response to the Board with proof of service on opposing counsel. We thank you for your helpful participation in this case. WM 1 gunk Rebecca Nogue Appeals Examiner Scanned into FLA-net cc: ChristOpher Kelly, Chief i Immigration Law and Practice Division Of?ce of the Principal Legal Advisor ICE Headquarters Potomac Center North 500 12th Street, S.W., MS 5900 Washington, DC 20536 Eduardo Beckett, Esq. Beckett Law Firm, PC PO. Box 971067 El Paso, TX 79997 Of?ce of Chief Counsel ELP 11541 Montana Ave Suite 0 El Paso, TX 79936 I Stephany Miranda DETAINED Assistant Chief Counsel Department of Homeland Security 1154] Montana Ave., Suite 0 El Paso, Texas 79936 (915) 856-2316 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS In the Matter of: GUTIERREZ--SOTO, Emilio File GUTLERREZ--SOTO, Oscar Emilio ]n removal proceedings DEPARTMENT OF HOMELAND RESPONSE TO AMICUS CURIAE BRIEF OF JOURNALIST ORGANIZATIONS INTRODUCTION This case is the Board qummigrations Appeals (Board) on the respondents' appeal from the Immigration Judge's July 19, 2017 decision, ordering them removed afier denying their applications for asylum, withholding, and protection under the regulations implementing the US. obligations under Article 3 of the Convention Against Torture. The Board subsequently accepted an amicus curiae brief submitted by a group of journalist organizations (Brief ofAmim' Curiae otunalist Organizations in Support of Emilio Gutierrez-Soto and Oscar Emilio Gutierrez- Soto) and granted the parties until April 10, 2018 to submit any response The Department of Homeland Security (Department or DHS) timely files the instant response. For the reasons set forth below' the Department respectfully contends that the Board should not consider the journalist organizations' amiei brief in adjudicating the merits of the respondents' appeal ARGUMENT I. THE BOARD SHOULD NOT CONSIDER THE OURNALIST AMJCI BRIEF IN ADJUDICATING MERITS OF THE APPEAL Specifically, in support of its arguments, and attached as the appendix to the brief, the journalist organizations proffer over 500 pages to include: nuswom declarations, 144 untranslated articles Written by the respondent in Spanish, 6 translated articles written by the respondent, and press releases written about the respondents and other journalists not associated with this case. See Appendix to Bt'iefofAmici Curiae Journalist Organizations All the information provided is being presented for the first time on appealr Except for taking administrative notice of commonly known facts or the contents of official documents, the Board, as an appellate body, cannot consider new evidence presented for the first time on appeal in adjudicating the merits of an appeal. See cm. D/Kranegold, 25132.14 Dec. 157, 162 (BIA 2010); Matter ofFedoren/m, 19 Dec. 57, 74 (BIA 1984). Additionally, the flmicus brief uses language such as the respondent "is unquestionably a member of a particular social group -- professional joumalists", and [his] "courageous journalism also has earned him the credible feat of persecution" without citing to the applicable standards or relevant case law. Thus, the Department urges the Board to decline to consider the amici brief filed by the journalist organizations. 11. THE BOARD IS LIMITED IN ITS REVIEW AND SHOULD NOT ADDRESS THE PARTICULAR SOCIAL GROUP ISSUE The Board is limited to areview of the Immigration Judge's factual findings for clear error. 8 C.F.R. Removal proceedings are designed to provide the parties with an opportunity to develop the record by presenting evidence and testimony before an Immigration udge, who makes the necessary factual findings and legal conclusions based on the claims presented. See Matter 26 Dec. 516, 521 (BIA 2015). It is an applicant's burden to establish her claim for relief or protection on the record before the Immigration Judge. 1d. 211518-24. An applicant for asylum or withholding ofternoviil must "clearly indicate" on the record before the Immigration Judge "what enumerated grounds she is relying upon in making her claim." Matter o/A- IL, Dec. 4, 10 (BIA 2009). In this case, the Immigration Judge denied the respondents' claim for asylum after a full hearing on the merits, at 29. The Immigration Judge properly denied the respondents' claim based on credibility. Id. The adverse credibility finding was based on a series of inconsistent statements, implausiblc circumstances, and uneorroborated assertions, as well as the respondent's candor and responsiveness throughout the case, as summarized by the Immigration Judge in his decision. at 2443. The Department contends that the adverse credibility finding was not clearly erroneous and is supponed by the record. The Board will typically defer to an Immigration Judge's adverse credibility finding. Sec Mailer 21 Dec. 1106 (BIA 1998). Upon a finding that the respondents were not credible, the denial of the asylum and other protections was proper. Should the Board determine that in fact the respondents' testimony was credible: the Board would have to remand this case for the necessary factual findings and legal analysis by the Immigration Judge. The Inunigration Judge did not reach the particular social group issue in this case. 1. at 29 n. 19. Therefore, because the Immigration Judge did not reach the particular social group issue, and thus did not make any findings of fact pertaining to this issue, this issue is not ripe for the Board to address on appeal. determination whether a social group is cognizable is afact- based inquiry made on a case-by--case basis, depending on whether the group is immutable and is recognized as particular and socially distinct in the relevant society." Matter Dec. 40, 42 (BIA 2017). In addition, even if a particular social group is deemed cognizable, an applicant must establish her "membership in that group, and persecution or fear of persecution on account of [her] membership in that group." 1d. at 43. The resolution of such issues is also inherently factual in nature. See Id. at 44 (citing Matter ofNeMe, 25 Dec. 526, 532 (BIA 2011)). While the Board reviews the ultimate determination ofwhether aproposed group is cogriimble de novo, it reviews an ImnligraLiou Judge's factual findings underlying that determination for clear error. See Mutter ofW- 26 Dec. 208, 20940 (BIA 2014), vaulted in par! and remanded on other grounds by Reyes v. 842 F.3d 1125 (9th Cir. 2016); 8 C.F.R. 1003 As noted above, the Immigration Judge did not make any such factual findings in this case. In addition, while it would be improper for theBoard to consider the merits of the particular social group claim in this case at this time, the Department notes that the proposed particular social group has not been shown to have the requisite imrnutability. Although the US. Court of Appeals for the Fifth Circuit does not have a controlling case on this issue, theU.S. Court of Appeals for the Sixth Circuit has held thatjoumalists do not share a common immutable characteristic. See DubaI v, Mukasey, 257 FedlAppx. 875 (6"1 Cir. 2007) ("The common trait members as journalists does not constitute a protected social group for asylum purposes because 'the concept of a refugee does not guarantee an individual a rigit to work in thejob of his choice;"' citing Caxtellurlo~Chacon v. INS, 341 F.3d 533, 546-47 (8th Cir. 2003)) In addition to not having a common immutable characteristic, the respondent has also failed to show that his proposed social group of journalists has the requisite particularity and social distinction to be a protected social group for asylum purposes. As such, the respondent has failed to show that any proposed social group of journalists is cogniuble. In addition, the respondent failed to show that he was harmed or persecuted on account of his membership in his proposed particular social group. L-E--A, 27 at 43. The respondent Claims he was targeted for being a journalist and writing articles that cast the Mexican military in a poor light. However, the respondent was never physiwlly hurt, but was allegedly threatened only once in February 2005. Exh. 2F Tab at 11-13. Threats alone are ordinarily insufficient to constitute persecution. See, Lemur-Arm! v. Sessiom', 354 F.3d 476, 481 (8th Cir. 2017); Ahmed Ashcroft, 348 F.3d 611, 616 (7th Cir.2003); Lim 9. INS, 224 F.3d 929, 936 (9th Cir.2000). The respondent also claims that he was targeted a second time for being a joumzlist when his house ms raided, however, his house was not the only one raided and the raid took place more than three years after he had written any articles about the Mexican military. 1.1. at 13-16. The respondent himself testified that he was told the raids were part of routine operations taking place. at 16. Consequently, the reSpondent has notestablished that he suffered past persecution on account of his membership in a particular social group. Moreover, there is nothing on the record to suggest the government of Mexico is unable or unwilling to protect the respondent. in fact, there was an investigation conducted and a conciliation agreement was drawn up between the parties after the first incident in 2005. 1.1. at 13. For three years thereafter, the respondent had no encounters or interactions with the Mexican government uno'l the alleged raid, which, by respondent's own admission, was a routine operation. Tr. at 334-37. SubsequenLly, after seeking asylum in the United States, die Mexican government has even offered the respondents protection in form of a bodygtard if they were to return to Mexico. Tr. at 361-67. The respondents declined this offer of protection because they speculate that the protection offered wi11 not be enough to keep them safe from the Mexican military. Id. Thus, given the evidence on the record, the respondents failed to establish not only to establish past persecution, but also a wellr founded-fear of future persecution. This Board should summarily affirm the decision ofthe Immigration Judge under 8 C.F.R. because the immigration Judge properly denied the respondents' applications based on an adverse credibility finding. In the alternative, should the Board determine that the summary affirmance ofthe Immigration Judge's decision is not appropriate. the Department submits that none ofthc six circumstances wairanting review by athree-member panel are present inthis case, and that the Immigration Judge's decision should otherwise be affirmed by means of a brief order. 8 C.F.R. and Remand for consideration ofthe merits of the paru'cular social group claim is unnecessary. Respectfully Submitted, aw Assistant Chief Counsel CERTIFICATE OF SERVICE I certify that on April 5, 2018, 1 served' a mre and correct copy crude foregoing Department of Homeland Security's Response to Amicus Curiae Brief of Journalist Organizations on the respondent's counsel, Eduardo Beckett) at Po. Box 971057 El Paso, TX 79997, by deposifing it in the United States Mail, postage prepaid. any Miranda meJ Assistant Chief Counsel I 3 7W 4 4% fl Respectfully, in the absence of a written waiver of asylum confidentiality pursuant to 8 C.F.R, 1208.6(3) vis-e-vis amici, the DHS has served a copy of the instant modcn only on lhe respondent's counsel. The DHS will leave it to the respondent, if he so chooses, to flmher forward the motion to amici, and has provided him with two additional copies for Lhis purpose.