### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 2964

J UAN C ARLOS B ARRAGAN

‐ O JEDA

,

Petitioner

,

v.

J EFF S ESSIONS

, Attorney General of

the United States,

Respondent

.

____________________ Petition for Review of an Order

of the Board of Immigration Appeals.

No. A206

‐ 516

‐ 229.

____________________

A RGUED D ECEMBER 1, 2016

— D ECIDED A PRIL 5, 2017

____________________

Before P OSNER

, R IPPLE

, and R OVNER

, Circuit Judges

.

R IPPLE

, Circuit Judge

. Juan Carlos Barragan

‐ Ojeda, a native

and citizen of Mexico, entered the United States without au

‐

thorization 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 Mex

‐

ican criminal gang had persecuted him. At the conclusion of2 No. 16

‐ 2964

his testimony, he briefly mentioned that he had been the vic

‐

tim of discrimination in employment because he was effemi

‐

nate, 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.No. 16

‐ 2964 3

I

BACKGROUND

Mr. Barragan

‐ Ojeda was born in Mexico on March 6, 1995

and entered the United States in July 2013 at age 18. He was

apprehended at the border and requested asylum. The De

‐

partment of Homeland Security (“DHS”) then placed him in

removal proceedings. The IJ continued his case for over a

year, in part to give him an opportunity to locate an attorney

if he wished to be represented in proceedings. 1 On April 23,

2015, Mr. Barragan

‐ Ojeda appeared pro se before the IJ for an

individual merits hearing on his asylum claim. His current at

‐

torney asserts in his brief that Mr. Barragan

‐ Ojeda made a

preliminary, off

‐ the

‐ record request to the IJ for a closed asy

‐

lum hearing, but that the IJ denied the request. Members of

Mr. Barragan

‐ Ojeda’s family were present.

Before the IJ, Mr. Barragan

‐ Ojeda testified, with the assis

‐

tance of an interpreter, that he had entered the United States

in 2013 to “save [his] life,” which was threatened by a large

criminal gang in Mexico called the Caballeros Templarios. 2

His family resides in the Mexican state of Michoacán, where

they own land and where his father is a farmer and a propri

‐

etor of a liquor store. Members of the gang extorted money

from his family from 2012 until 2013, when his father refused

to continue paying them. At that point, his father “tried to get

us out of the town.” 3 Mr. Barragan

‐ Ojeda came to the United

1 The IJ gave him a list of organizations that could assist him at little or no

cost.

2 A.R. at 249.

3 Id. at 251 (testimony of Mr. Barragan

‐ Ojeda).4 No. 16

‐ 2964

States, but his parents elected to stay in the same town in Mi

‐

choacán. Mr. Barragan

‐ Ojeda stated that after he left Mexico,

shots were fired through the windows of his parents’ home.

He also claimed that his family members were victims of ex

‐

tortion. When asked if “all businessmen or all people in the

area” were similar targets, he replied, “Yes. Yes. They ask for

every business you have, for every car you have, for every

motorcycle.” 4 His parents had not relocated, he continued, be

‐

cause they “have their whole life there. They have their

houses. They have their parcels. They have their land.” 5 His

family also had not sought government protection because

“the government is also joined in with organized crime.” 6

Mr. Barragan

‐ Ojeda supported his application with two

articles in Spanish discussing the murder of his uncle. When

asked, he said that he did not know the circumstances of his

uncle’s death. He also submitted a letter from his father. The

letter noted that his uncle had been shot to death in their

hometown and that the family was in danger and afraid of the

police. It also noted, for the first time, that Mr. Barragan

‐ Ojeda

had received a phone call in which he had been “threatened

that he would be killed.” 7 According to his father, he would

be targeted “because he was cooperating with the self

‐ defense

groups because he would take

... food to those that are in the

movement.” 8 When asked by the IJ about this statement,

4 Id.

5 Id. at 252.

6 Id.

7 Id. at 255.

8 Id.No. 16

‐ 2964 5

Mr. Barragan

‐ Ojeda clarified that, on one occasion, his grand

‐

mother had sent plantains to a group of local people opposing

the extortion by the gang, and Mr. Barragan

‐ Ojeda had

dropped off the box. Afterwards, he received a threatening

phone call, likely because gang informants were part of the

group.

The IJ began an oral ruling in which he denied Mr. Bar

‐

ragan

‐ Ojeda’s claim on the basis that the harm he faced was

too generalized and not tied to a protected ground; specifi

‐ cally, he had not identified a viable social group. Before fin

‐ ishing his ruling, however, the IJ engaged Mr. Barragan

‐ Ojeda in one final exchange:

Q. Sir, is there anything else you want to tell

me concerning your fear of going back to Mex

‐

ico?

A. It’s just that there are many things.

Q. Well, is there any other reason why you

fear going back other than what you have told

me?

A. What about discrimination for being ef

‐

feminate?

Q. Well, that doesn’t qualify you for asylum.

I mean are you saying that you’ve been mis

‐

treated by someone or people discriminate

against you because of the way you look?

A. Yes.

Q. But what difficulties have you had?6 No. 16

‐ 2964

A. Well, at work, when I would look for

work they would tell me that they needed men

and not little girls.

Q. I mean do you think, are you a homosex

‐

ual or not?

A. No.

Q. But you think people perceive you that

way.

A. Yes.

[Q.] Well, you left Mexico shortly after grad

‐ uating high school. The fact that you believe

you faced discrimination would not constitute

persecution. So I don’t see that you qualify to

remain in the United States under the law. [ 9 ]

The IJ then continued an oral decision in which he noted

that Mr. Barragan

‐ Ojeda appeared to be attempting to define

his social group as victims of extortion in Mexico, but that this

group, defined only by a relationship to the persecutors, was

not sufficient under Board precedent. The IJ also examined

several other potential social groups, including those who

support the self

‐ defense group, or young men from families

that had been extorted by criminal gangs, but he determined

that these groups were too generalized and that the record

was insufficient to establish a connection between these

groups and his mistreatment. In the IJ’s view, the primary

goal of the violence was extortion, not punishment.

9 Id. at 258.No. 16

‐ 2964 7

Finally, the IJ turned to his last exchange with Mr. Bar

‐

ragan

‐ Ojeda. He concluded that, although homosexuals are

considered a social group for purposes of asylum claims,

Mr. Barragan

‐ Ojeda had denied being homosexual and “his

limited testimony concerning job prospects because of his ap

‐

pearance does not lead this Court to conclude that he faces a

more likely than not chance of persecution on account of be

‐ ing an imputed homosexual.” 10

Before the Board of Immigrations Appeals, Mr. Barragan

‐ Ojeda, now with the support of retained counsel, submitted

an additional one

‐ paragraph statement, the translation of

which states, in full:

I was drinking with two drug

‐ trafficking

friends who were using cocaine after beginning

to molest me and they became enraged because

I told them to stop and one of them took a gun

and the other started physically abusing me and

the other deceived me. I thought I was going to

die at this moment and I thought they would

kill me and carry me to the river to shut me up.

Out of fear I did not tell my father but instead

told a friend of mine what had occurred, that I

was gay, and that I was frightened because it

was dangerous here. If they saw me the next

day they were going to wake me up to kill me

to ensure that nothing was said about what hap

‐ pened on June 20th[,] 2013. I could not live a

normal life in the village and I went on the

streets with fear. After the day July 2, 20[1]3, I

10 Id. at 219.8 No. 16

‐ 2964

received a call to carry food to the community

police and they told me that I was a dead man

for cooperating with the community police who

now had called the rural police and federal po

‐

lice. They came to us in the night outside the

house of a friend who wanted to obligate to say

where they sold drugs to us. We did not know

because we did not use them. Also I am afraid

to return to Mexico because this guy apparently

is involved with politics and he is the ex

‐ hus

‐

band of my aunt, the sister of my father and is a

principal member of the rural police who before

were called the community police. Also, I do not

want to return to Mexico because of the discrim

‐

ination against people with my sexual appear

‐

ance. [ 11 ]

Mr. Barragan

‐ Ojeda also submitted a number of second

‐

ary sources, including the State Department Country Report

for Mexico, four short news items from the Mexican press

about incidents of violence against homosexuals, and one

news item about the arrest of a leader of the Caballeros Tem

‐ plarios. Notably, in his brief to the Board, he made only pass

‐ ing reference to the original claims made before the IJ. Instead,

he focused on his new claim of rape in his additional state

‐

ment and on the persecution faced by gay men in Mexico. 12

The brief contends, without citation to record evidence in the

11 Id. at 48.

12 His briefs to the Board and to this court both also state that he was “cas

‐

trated” in Mexico, but reference only his testimony regarding discrimina

‐

tion. See Pet’r’s Br. 2. The claim appears, therefore, to be metaphorical.No. 16

‐ 2964 9

form of a statement from Mr. Barragan

‐ Ojeda or otherwise,

that Mr. Barragan

‐ Ojeda had not disclosed his sexual orienta

‐

tion at the first hearing because he was not ready to admit it

publicly given his youth and inexperience, his upbringing

and the rejection of homosexuality in Mexican culture, his

shame as a rape victim, his nerves, his lack of counsel, and the

presence of members of his family in the courtroom. The brief

asserts, again without citation to evidence, that the IJ had de

‐

nied a request to close the hearing.

The Board denied relief. It first adopted and affirmed the

decision of the IJ denying the application for asylum on the

grounds originally presented, namely extortion by the Cabal

‐

leros Templarios. The Board held that Mr. Barragan

‐ Ojeda

had not established “that one central reason for the threats of

harm by the Caballeros Templarios was on account of his

membership in a particular social group or on account of any

other protected ground.” 13 The Board further ruled that his

“vague testimony that he faced employment discrimination

due to his effeminate demeanor also does not establish the ba

‐

sis for an asylum claim.” 14

The Board then turned to the new evidence submitted

with the appeal, noting that Mr. Barragan

‐ Ojeda had claimed

“for the first time on appeal that he is a homosexual and was

persecuted and fears persecution on account of his status as a

homosexual.” 15 The Board noted that, under its precedents,

13 A.R. at 3.

14 Id. (citing Kaharudin v. Gonzales

, 500 F.3d 619, 623 (7th Cir. 2007), for the

principle that discrimination falls short of persecution).

15 Id. at 4.10 No. 16

‐ 2964

an appeal “that presents a previously unraised basis for re

‐

lief,” including claims based on a new protected ground or

“the same protected ground

... predicated on a new or sub

‐ stantially different factual basis” rather than one “that merely

clarifies or alters the initial claim,” is treated as a “new appli

‐

cation.” 16 The sexual orientation and assault basis for the

claim was new, the Board concluded, and, therefore, would

be treated as a motion to remand to the IJ and assessed under

the same standard as a motion to reopen. That standard,

found at 8 C.F.R. § 1003.2(c)(1), could be met only if the alien

presented evidence that “was not available and could not

have been discovered or presented at the former hearing.”

The Board concluded that Mr. Barragan

‐ Ojeda had not satis

‐

fied this requirement. His appellate brief to the Board claimed

that his declaration regarding his sexual orientation and the

sexual assault was not presented to the IJ “due to his youth,

his lack of representation, and his fear of admitting that he

identifies as a homosexual.” 17 The Board noted, however, that

Mr. Barragan

‐ Ojeda was “18 years old when he was placed in

removal proceedings, was advised of the privilege of being

represented by counsel, and proceedings were continued to

allow him an opportunity to retain counsel before the merits

hearing was held more than a year and a half after he first

appeared before the [IJ].” 18 Finally, the Board noted that

Mr. Barragan

‐ Ojeda’s affidavit did not address any of these

matters.

16 Id. (internal quotation marks omitted).

17 Id. (opinion of the Board).

18 Id. at 4–5.No. 16

‐ 2964 11

II

DISCUSSION

In his petition for review to this court, Mr. Barragan

‐ Ojeda

repeats the position he took before the Board. He declines to

challenge the decision of the IJ and the Board with respect to

the extortion and violence his family faced from the Caballe

‐

ros Templarios. He first asserts various due process chal

‐ lenges to his proceedings before the IJ. He then focuses on the

sexual

‐ orientation

‐ based claim that he asserted for the first

time on appeal to the Board. More specifically, he contends

that the IJ violated his right to due process of law when he

denied Mr. Barragan

‐ Ojeda’s off

‐ the

‐ record request for a

closed hearing and in the IJ’s conduct of the hearing, espe

‐ cially in the judge’s questioning of Mr. Barragan

‐ Ojeda. He

next argues that his sexual orientation disclosure is not “new”

evidence, but simply a clarification of his prior testimony. He

also maintains that his testimony was credible throughout his

proceedings. Finally, he contends that, as a homosexual, he is

within a particular social group and has established his eligi

‐ bility for asylum.

A.

We first examine Mr. Barragan

‐ Ojeda’s claim that he was

denied due process of law when the IJ denied his request,

made before the record of proceedings was opened, that the12 No. 16

‐ 2964

proceedings be closed and the gallery be cleared. 19 He also as

‐

serts that the IJ subjected him to inappropriate questioning

that amounted to a cross

‐ examination. 20

As the Government’s brief correctly notes, Mr. Barragan

‐ Ojeda did not raise these due process challenges before the

Board. “Although due process claims generally do not require

exhaustion because the BIA does not have authority to review

constitutional challenges, when those issues involve proce

‐

dural errors correctable by the BIA, applicants must raise such

claims as part of their administrative appeal.” Capric v. Ash

‐ croft

, 355 F.3d 1075, 1087 (7th Cir. 2004). Because the Board

had the authority to correct the kinds of procedural failings

asserted in this case, 21 Mr. Barragan

‐ Ojeda was required to

19 See 8 C.F.R. § 1240.11(c)(3)(i) (providing that the IJ “shall inquire”

whether the alien requests closure of proceedings and that they are to be

“open to the public unless the alien expressly requests” otherwise).

20 See, e.g.

, Rodriguez Galicia v. Gonzales

, 422 F.3d 529, 538–39 (7th Cir. 2005)

(holding that the IJ violated the alien’s right to due process in part by

“questioning [that] clearly assume[d] the role of counsel for the Govern

‐

ment”).

21 As we have explained:

Before we can reach most issues, however, the alien is re

‐ quired to raise them before the BIA. The only exception is

where the BIA itself would be powerless to address the prob

‐

lem

, as might be the case with some fundamental consti

‐

tutional claims. As we have noted before, however, many

due process arguments are based on procedural failings

that the BIA is capable of addressing. In those instances,

the alien must exhaust his or her remedies at the BIA be

‐

fore bringing the claim before this court.No. 16

‐ 2964 13

raise them in the course of his administrative appeal. We

therefore do not consider the substance of these claims.

For the sake of completeness, however, we note that, even

if Mr. Barragan

‐ Ojeda had preserved these claims by present

‐ ing them to the Board, they would not warrant relief. First,

Mr. Barragan

‐ Ojeda has based his claim about the alleged de

‐

nial of closure of proceedings solely on unsupported asser

‐

tions in his brief, without citation to any evidence such as a

supplemental declaration filed with the Board. Therefore, nei

‐

ther the Board nor this court has any basis for establishing that

these off

‐ the

‐ record conversations had occurred.

As to the contention that the IJ took on the role of the Gov

‐

ernment attorney, Mr. Barragan

‐ Ojeda cites no specific exam

‐ ples of inappropriate comments, interruptions, or anything

Feto v. Gonzales

, 433 F.3d 907, 912 (7th Cir. 2006) (emphasis added) (cita

‐

tions omitted). The Board would not have been powerless to address the

issues raised here. On the desire to testify in a closed hearing, we have

held that where “the Board could have addressed” the claim by “re

‐ mand[ing] the case to the IJ for another hearing,” the failure to exhaust a

due process claim is not excused. Lin v. Holder

, 630 F.3d 536, 542 n.2 (7th

Cir. 2010). We also have acknowledged that claims of bias on the part of

the IJ, such as would be evident from inappropriate questioning, are re

‐

solvable by the Board in the first instance. Ghaffar v. Mukasey

, 551 F.3d 651,

656 (7th Cir. 2008) (“There are literally dozens of Board decisions resolving

claims of bias. When bias has been established, the Board has the authority

to remand a case for a new hearing before a different IJ, and our research

reveals that the BIA has done so on multiple occasions ....”). These types

of objections relating to the conduct of the hearing are distinguished from

those the Board cannot resolve, such as constitutional challenges to statu

‐

tory or regulatory provisions. See, e.g.

, Hadayat v. Gonzales

, 458 F.3d 659,

665 (7th Cir. 2006).14 No. 16

‐ 2964

else similar to IJ conduct we previously have found problem

‐

atic. The statute specifically allows the IJ to “receive evidence,

and interrogate, examine, and cross

‐ examine the alien and any

witnesses.” 8 U.S.C. § 1229a(b)(1) (emphasis added). We have

found no due process violation when an IJ, using these statu

‐

tory authorities, merely has taken an active and impartial role

in the proceedings. When the IJ does not demonstrate “impa

‐

tience, hostility, or a predisposition against” an alien’s claim,

and where the questions assisted in the development of the

record on relevant points, the mere fact that the IJ elicited tes

‐ timony is not inappropriate and certainly does not raise due

process concerns. Hasanaj v. Ashcroft

, 385 F.3d 780, 784 (7th

Cir. 2004). 22 “An IJ, unlike an Article III judge, is not merely

the fact finder and adjudicator but also has an obligation to

establish the record.” Id. at 783 (internal quotation marks

omitted) (quoting Yang v. McElroy

, 277 F.3d 158, 162 (2d Cir.

2002)). Particularly with a pro se respondent such as Mr. Bar

‐

ragan

‐ Ojeda, fair questioning by the IJ often is required to ob

‐

tain information from the alien necessary for a reasoned deci

‐

sion on the claim. The authority can be misused, and we have

not hesitated to grant an alien’s petition where the IJ’s con

‐

duct has been hostile or abusive, or has prevented rather than

facilitated the creation of an evidentiary record in support of

an alien’s claim. See, e.g.

, Rodriguez Galicia v. Gonzales

, 422 F.3d

529, 539 (7th Cir. 2005) (noting frequent interruptions and

22 In Hasanaj v. Ashcroft

, 385 F.3d 780, 784 (7th Cir. 2004), we reviewed

multiple instances of the IJ questioning the petitioner and noted: “These

questions were to develop the record with whatever the Petitioner had to

offer for his case. The questions reflect what the IJ still needed to know in

order to make a fully informed decision. There are no questions, or group

of questions that indicate that this IJ was anything but thorough and fair

in his obligation to this Petitioner.”No. 16

‐ 2964 15

hostility toward the alien by the IJ); Podio v. I.N.S.

, 153 F.3d

506, 510 (7th Cir. 1998) (finding a due process violation based

on the IJ’s impatience, frequent interruptions, and arbitrary

refusal to hear testimony that would have corroborated the

alien’s case). Mr. Barragan

‐ Ojeda’s general complaints about

the IJ’s conduct simply do not rise to this level. Indeed, we

have examined the transcript of the proceedings before the IJ.

That record reveals no basis for Mr. Barragan

‐ Ojeda’s conten

‐

tion. The IJ carefully and thoroughly asked him about his claim

and explored alternate characterizations of the claim that

might allow relief. There is no basis for an allegation of unfair

‐

ness.

B.

We now consider Mr. Barragan

‐ Ojeda’s contention that he

is eligible for asylum on the basis of his sexual orientation and

as a victim of sexual assault. These grounds were raised for

the first time before the Board and supported there by a short

supplemental declaration. The Board treated this matter as a

motion to remand or reopen for consideration of new evi

‐

dence. It relied on its own decision in Matter of M

‐ A

‐ F

‐ , 26

I. & N. Dec. 651 (BIA 2015), which held that an asylum claim

“that presents a previously unraised basis for relief,” includ

‐ ing one “based on the same protected ground” but “predi

‐

cated on a new or substantially different factual basis,” is a

“new application.” Id. at 655. The Board rejected Mr. Bar

‐

ragan

‐ Ojeda’s argument that he simply was clarifying or16 No. 16

‐ 2964

slightly altering his claim. Rather, it held that he had pre

‐

sented a new claim that had to be treated as a motion to reo

‐

pen. 23

The Board was on solid ground in concluding that the

mere prior mention of effeminacy and employment

‐ related

discrimination was insufficient to raise within his original

claim an entirely new narrative of sexual orientation, sexual

assault, and discrimination against gay men in Mexico. In

‐

deed, even if we were to consider the sexual orientation basis

to have been raised effectively in the earlier proceeding be

‐

cause of his testimony about effeminacy, his appellate sub

‐

missions introduce facts “substantially different from those in

the earlier application.” Id. at 655. Mr. Barragan

‐ Ojeda’s re

‐

quest for asylum is not simply presented in more detail, it is

wholly transformed by the new assertions he made before the

Board.

Furthermore, even if his claim before the Board could be

characterized as a continuation of the original application, the

Board had no authority to evaluate on its own that factual

submission. The Board cannot make factual findings in the

course of an appeal; the regulations instruct a party seeking

to introduce new facts into the evidentiary record to submit a

motion to remand. 24 We have acknowledged that such mo

‐

tions, which are “really in the nature of a motion to reopen,”

23 A.R. at 4 (citing Matter of Ige

, 20 I. & N. Dec. 880, 884 (BIA 1994)).

24 8 C.F.R. § 1003.1(d)(3)(iv) provides:

Except for taking administrative notice of commonly

known facts such as current events or the contents of of

‐

ficial documents, the Board will not engage in factfinding

in the course of deciding appeals. A party asserting thatNo. 16

‐ 2964 17

should be evaluated under the substantive standards for reo

‐ pening set forth in 8 C.F.R. § 1003.2(c)(1). Darinchuluun v.

Lynch

, 804 F.3d 1208, 1217 (7th Cir. 2015) (quoting Matter of

Coelho

, 20 I. & N. Dec. 464, 471 (BIA 1992)). The applicable reg

‐

ulations provide, moreover, that a motion “shall state the new

facts that will be proven at a hearing to be held if the motion

is granted and shall be supported by affidavits or other evi

‐ dentiary material.” 8 C.F.R. § 1003.2(c)(1).

In any event, such a motion should be granted only when

the “evidence sought to be offered is material and was not

available and could not have been discovered or presented at the for

‐

mer hearing.” Id. (emphasis added). Finally, in the case of dis

‐ cretionary relief such as asylum, a motion to reopen should

not be granted if the ability to seek “relief was fully ex

‐ plained” in the course of earlier proceedings “and an oppor

‐ tunity to apply therefore was afforded at the former hearing,

unless the relief is sought on the basis of circumstances that

have arisen subsequent to the hearing.” Id.

The Board appropriately concluded that Mr. Barragan

‐ Ojeda’s additional submissions on appeal did not meet the re

‐ quirements for a motion to remand. Specifically, it correctly

ruled that his motion was not “accompanied by evidence

which was not available and could not have been discovered

the Board cannot properly resolve an appeal without fur

‐

ther factfinding must file a motion for remand. If further

factfinding is needed in a particular case, the Board may

remand the proceeding to the immigration judge or, as

appropriate, to the Service.18 No. 16

‐ 2964

or presented at the former hearing.” 25 Counsel’s brief sug

‐ gested that “his youth, his lack of representation, and his fear

of admitting that he identifies as a homosexual” prevented

him from presenting the full facts before the IJ. 26 As the Board

noted, however, Mr. Barragan

‐ Ojeda’s own supplemental

“affidavit d[id] not address his reasons for making this claim

for the first time on appeal.” 27 Under these circumstances, the

attorney’s assertions about Mr. Barragan

‐ Ojeda’s state of

mind before the IJ simply do not suffice to establish that reo

‐ pening was warranted. See INS v. Phinpathya

, 464 U.S. 183, 188

n.6 (1984) (noting that, in request to reopen, “[c]ounsel’s un

‐ supported assertions in respondent’s brief do not establish

that respondent could satisfy” the requirements for relief). 28

In short, even if the claim of persecution on the ground of ho

‐ mosexuality had been properly before the Board, it could not

have considered that matter; nor could it have remanded the

matter for further proceedings before the IJ.

25 A.R. at 4; see also 8 C.F.R. § 1003.2(c)(1).

26 Id. (opinion of the Board).

27 Id. at 4 n.1.

28 We need not consider, therefore, whether any of the reasons counsel

proffers could justify, on the appropriate record, a failure to mention sex

‐

ual orientation earlier in the removal proceedings. Cf. Moab v. Gonzales

,

500 F.3d 656, 661 (7th Cir. 2007) (concluding that, in a credible fear inter

‐

view, it was “reasonable that [the petitioner] would not have wanted to

mention his sexual orientation for fear that revealing this information

could cause further persecution as it had in his home country”).No. 16

‐ 2964 19

Conclusion

Mr. Barragan

‐ Ojeda has not demonstrated that he was de

‐

nied due process of law by the IJ’s considering his asylum

claim. The Board was on solid ground in evaluating Mr. Bar

‐

ragan

‐ Ojeda’s claim as a motion to remand. His submissions

on appeal amounted to a wholesale replacement of his origi

‐

nal requests for relief before the IJ, supported by entirely new

facts. On the merits of a request for remand, Mr. Barragan

‐ Ojeda created no evidentiary record of his reasons for failing

to disclose his sexual orientation claim before the IJ. Without

any such evidence, the Board had no basis to conclude that

the evidence he sought to introduce on appeal was previously

unavailable. The Board therefore did not err in denying a re

‐

mand to present his new evidence.

PETITION DENIED