Garcia Sarmiento v. Garland

United States Court of Appeals For the First Circuit No. 20-1679 FABIO NOE GARCIA SARMIENTO, Petitioner, v. MERRICK B. GARLAND,* Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Barron, Chief Judge, Lynch and Kayatta, Circuit Judges. Susan M. Pires on brief for petitioner. Timothy G. Hayes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Brian Boynton, Acting Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, on brief for respondent. August 17, 2022 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the respondent. LYNCH, Circuit Judge. Petitioner Fabio Noe Garcia Sarmiento purports to petition for review of two decisions of the Board of Immigration Appeals ("BIA"). In the first decision, dated January 16, 2020, the BIA dismissed Garcia Sarmiento's appeal of an Immigration Judge's ("IJ") denial of his application for withholding of removal, 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture ("CAT"), 8 C.F.R. § 1208.16(c). In the second, dated June 10, 2020, the BIA denied his motion to reopen proceedings, 8 U.S.C. § 1229a(c)(7). Because the petition is timely only as to the June 10 decision, we dismiss Garcia Sarmiento's petition for review of the January 16 decision. As to the June 10 decision, we deny the petition to review the BIA's denial of the motion to reopen. I. These facts are drawn primarily from the IJ's oral decision of August 30, 2019, which was the subject of the January 16, 2020 BIA decision. Garcia Sarmiento is a native and citizen of Honduras. He first entered the United States in 2001 as a lawful permanent resident. He was ordered removed and deported to Honduras in 2008 after he was convicted of possession of cocaine. In Honduras, Garcia Sarmiento had a barbershop. Gang members came to his business several times in the summer of 2014 and threatened him, demanding that he pay them rent. In June of 2014, gang members killed Garcia Sarmiento's brother. Garcia Sarmiento left - 2 - Honduras and, fearing violence from the gangs, reentered the United States without inspection in 2014. Garcia Sarmiento pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(1) and was sentenced to time served. See Judgment in a Criminal Case, United States v. Garcia-Sarmiento, No. 18-cr-00108 (D.R.I. June 14, 2019), ECF No. 26. On July 26, 2019, the Department of Homeland Security ("DHS") reinstated Garcia Sarmiento's previous removal order. After expressing a fear of returning to Honduras, Garcia Sarmiento was referred to an asylum officer to determine his eligibility to apply for withholding of removal. Following an interview where it was determined Garcia Sarmiento had a reasonable fear of harm if he were returned to Honduras, he applied for withholding of removal. On August 30, 2019, Garcia Sarmiento had a hearing before an IJ. The IJ found that Garcia Sarmiento …

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