author: BRYSON, Circuit Judge.

text:
    Darek J. KITLINSKI, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
    2016-1498
    United States Court of Appeals, Federal Circuit.
    Decided: May 31, 2017

      Kevin Edward Byrnes, The Law Offices of Kevin E. Byrnes, PLLC, Washington, DC, argued for petitioner.
    Stephen Fung, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Bryan G. Polisuk.
    Before DYK, BRYSON, and CHEN, Circuit Judges.
   BRYSON, Circuit Judge.

Petitioner Darek J. Kitlinski appeals from a decision of the Merit Systems Protection Board dismissing various claims he raised under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301-35. We affirm the Board’s final order in part, but vacate and remand for further proceedings on Mr. Kitlinski’s claim of a hostile work environment based on reprisal for his protected activity under USERRA.

I

During the period at issue in this case, Mr. Kitlinski was employed by the Drug Enforcement Administration (“DEA”), an agency within the U.S. Department of Justice. He was assigned to the DEA’s field office in San Diego. At the same time, Mr. Kitlinski served as a reservist in the United States Coast Guard. In 2011, he was recalled to active duty in the Coast Guard, and for an extended period he served full-time at the Coast Guard headquarters in Washington, D.C.

Mr. Kitlinski has had several run-ins with the DEA. At the time of the events at issue in this case, Mr. Kitlinski had two USERRA complaints and an equal employment opportunity (“EEO”) complaint pending against that agency. His USER-RA complaints were based on the DEA’s responses to his requests to be transferred from the DEA’s San Diego field office to either the Washington, D.C., field office or DEA headquarters in Arlington, Virginia, where Mr. Kitlinski’s wife worked. His EEO complaint alleged that the agency had unreasonably denied his request for a transfer and had failed to select him for two positions in DEA’s Washington, D.C., Division. He alleged that the denial of his transfer request and his non-selection for the two Washington positions was the product of sex discrimination.

On September 23, 2014, DEA representatives took Mr. Kitlinski’s deposition in the pending EEO litigation. The deposition took place at the DEA headquarters. After Mr. Kitlinski finished his deposition and returned to his car, which was parked in a secure DEA parking lot, he discovered a Blackberry device bearing a DEA sticker under the hood of the car. He suspected that the device had been planted by agency officials while the car was parked in the DEA parking lot during his deposition, and that the device was intended to be used to track his location and record his conversations.

Mr. Kitlinski reported his discovery of the Blackberry device to the Federal Bureau of Investigation and to the Department of Justice Office of the Inspector General. That office referred the case to the DEA Office of Professional Responsibility (“OPR”). Mr. Kitlinski’s wife also reported the incident to her supervisors and to the OPR.

In response to Mrs. Kitlinski’s complaint, an OPR investigator contacted Mrs. Kitlinski and directed her to turn over the Blackberry and to appear at the OPR offices for an interview. Mrs. Kitlinski advised the OPR investigator that she had given the Blackberry to her lawyer and that all further communications with her should be directed through the lawyer. She later stated that when she appeared at the OPR offices, she was interrogated and was threatened with discipline if she did not turn over the Blackberry.

The following month, two OPR investigators traveled to Mr. Kitlinski’s workplace at the Coast Guard headquarters to meet with him. They directed him to turn over the Blackberry and to come to the OPR offices the following day to be interviewed.

Prior to that encounter, but after the investigators’ meeting with Mr. Kitlinski’s wife, Mr. Kitlinski filed the present action with the Merit Systems Protection Board. In his complaint, Mr. Kitlinski claimed that the placement of the Blackberry and the interview of his wife constituted violations of USERRA as independent acts of discrimination and by creating a hostile work environment. Following the appearance of the two OPR investigators at Mr. Kitlin-ski’s workplace, Mr. Kitlinski submitted an additional pleading in which he claimed that the investigators’ actions constituted individual acts of retaliation as well as creating a hostile work environment in retaliation for his exercise of his rights under USERRA.

The administrative judge who was assigned to the case issued an order directing the parties to file statements regarding the Board’s jurisdiction. Mr. Kitlinski filed a statement contending that the Board had jurisdiction over his USERRA claims and requesting a hearing. The agency filed a response in which it urged the administrative judge to dismiss Mr. Kitlinski’s complaint for lack of jurisdiction, to which Mr. Kitlinski filed a reply.

In early 2015, the administrative judge issued a ruling dismissing the complaint for lack of jurisdiction. The administrative judge held that Mr. Kitlinski had failed to show that the Board had jurisdiction over his complaint because he had failed to make a nonfrivolous allegation that any of his claims gave rise to a USERRA violation.

The administrative judge first addressed Mr. Kitlinski’s claim that the alleged placement of the Blackberry in his car constituted the denial of a “benefit of employment” on account of his military service, in violation of section 4311(a), the anti-discrimination provision of USERRA, 38 U.S.C. § 4311(a). The administrative judge noted that the term “benefit of employment” in section 4311(a) is defined in relevant part as the “terms, conditions, or privileges of employment.” 38 U.S.C. § 4303(2). Taking Mr. Kitlinski’s claim “at face value,” the administrative judge explained that “his contentions boil down to a claim that some unknown DEA employee placed a Blackberry device in the engine compartment of his personal vehicle on the morning of September 23, 2014, where it remained until around 1:00 p.m. when he removed and effectively disabled it.” Under those circumstances, the administrative judge concluded, Mr. Kitlinski “failed to nonfrivolously allege that the purported placement of a Blackberry device in the engine compartment of his personal vehicle for a period of hours constituted a denial of any benefit of employment as it did not affect any term, condition or privilege of employment.”

The administrative judge then turned to Mr. Kitlinski’s claim that the DEA’s alleged placement of the Blackberry device in his car constituted an act of retaliation for his prior pursuit of a USERRA claim, in violation of the anti-retaliation provision of USERRA, 38 U.S.C. § 4311(b). That provision states that an employer “may not discriminate in employment against or take any adverse employment action against any person” because that person has taken action to enforce a right afforded by the USERRA statute.

The administrative judge found that Mr. Kitlinski had failed to nonfrivolously allege that the Blackberry incident constituted either - an adverse employment action or discrimination in employment. The administrative judge pointed out that there was no evidence that Mr. Kitlinski’s employment status with the DEA, and in particular his extended leave to allow him to serve on active duty, was in any way affected by the incident, or that the DEA took any adverse employment action against him.

The administrative judge next turned to Mr. Kitlinski’s claim that the DEA’s investigation of the Blackberry incident constituted an act of retaliation for his USERRA activities. The administrative judge noted that an investigation “is not a personnel action per se,” and that even if an agency investigation without an accompanying personnel action could constitute a potential act of retaliation under USERRA, “the undisputed facts here would undermine such a claim,” as it was Mr. Kitlinski “and his wife who sought to have the matter investigated.”

As for the OPR investigators’ meeting with Mr. Kitlinski at the Coast Guard headquarters, the administrative judge found that the investigators were authorized to require DEA employees to respond to material and relevant questions and to produce or grant access to government property, and that DEA employees are required to respond to questions in such investigative proceedings. Moreover, the administrative judge noted, Mr. Kitlinski declined to appear at the interview or turn over the Blackberry, so the interruption of his work with the Coast Guard was limited to the brief meeting with the OPR investigators at the Coast Guard headquarters. Consequently, the administrative judge found that the actions alleged by Mr. Kit-linski in connection with the DEA investigation of the Blackberry incident were not materially adverse. For that reason, the administrative judge found that Mr. Kitlin-ski had “failed to nonfrivolously allege that the agency conducted its investigation in such a manner so as to support a claim that it was done in retaliation for the appellant having previously pursued his rights pursuant to USERRA.”

The administrative judge next addressed Mr. Kitlinski’s claim that the agency’s actions created an actionable “hostile work environment” based on reprisal under US-ERRA. As to that issue, the administrative judge acknowledged that USERRA protects the right to be free from a hostile work environment based on military service and assumed that the prohibition against retaliation in section 4311(b) would include hostile work environment claims. Nonetheless, the administrative judge found that the agency conduct at issue was confined to two incidents—the Blackberry incident and the ensuing investigation— and that the consequences of the two incidents were not severe. The Blackberry was present in Mr. Kitlinski’s vehicle only for a short period of time—and only when Mr. Kitlinski was alone in the car—before he discovered it.. And as for the investigation, the administrative judge noted that it had been precipitated by the Kitlinskis’ complaints and had not involved any humiliating or physically threatening conduct. The administrative judge further found that the agency’s alleged harassment did not interfere with Mr. Kitlinski’s work for the DEA, nor did the brief meeting with the OPR investigators at the Coast Guard headquarters interfere unreasonably with Mr. Kitlinski’s work while on active duty with the Coast Guard or otherwise rise to the level of actionable harassment.

Based on that analysis, the administrative judge found that Mr. Kitlinski had failed to make a nonfrivolous allegation (1) that he was subjected to the denial of a benefit of employment under section 4811(a) based on his military service; (2) that the DEA took an adverse employment action or otherwise discriminated in employment against him under section 4311(b) for engaging in protected USER-RA activity; and (3) that he was subjected to a hostile work environment or actionable harassment under either sections 4311(a) or 4311(b).

Mr. Kitlinski petitioned the full Board for review of the administrative judge’s decision. On review, the Board upheld the dismissal of Mr. Kitlinski’s claims, although it modified the administrative judge’s initial decision in one respect.

The Board first agreed with the administrative judge that, even accepting Mr. Kitlinski’s version of the facts, the Blackberry incident did not deny him a benefit of employment and therefore did not constitute discrimination under USERRA.

Second, the Board held that Mr. Kitlin-ski had failed to nonfrivolously allege that the DEA’s conduct had created a hostile work environment in violation of USER-RA’s anti-discrimination provision. On that issue, the Board’s analysis differed from that of the administrative judge. The Board ruled that the flaw in Mr. Kitlinski’s case was his failure to show that the measures alleged to have given rise to the hostile work environment were taken based on Mr. Kitlinski’s military status, which is a necessary element of a discrimination claim under USERRA section 4311(a).

Third, the Board.held that Mr. Kitlinski had failed to make a nonfrivolous allegation that the agency had retaliated against him for previous USERRA activity. On that issue, the Board agreed with the administrative judge that USERRA’s anti-retaliation provision, section 4311(b), requires proof that the employer’s allegedly retaliatory measures constituted “discrimination in employment” or “an adverse employment action.” Be-cause the Board concluded that the Blackberry incident and the subsequent OPR investigation did not constitute either an adverse employment action or discrimination in employment, it held that it lacked jurisdiction over Mr. Kitlinski’s retaliation claim.

Although the Board addressed Mr. Kit-linski’s claim of discrimination based on a hostile work environment as well as his claim of retaliation based on the Blackberry incident and the OPR investigation, it did not make a separate finding as to Mr. Kitlinski’s claim that the DEA had created a hostile work environment in retaliation for his USERRA activities.

II

In this court, the Board’s counsel acknowledges that the full Board did not address Mr. Kitlinski’s claim of retaliation in the form of a hostile work environment. The Board’s counsel asks us to remand that portion of the case to the Board in order for the Board to address and decide that issue in the first instance. The Board’s counsel defends the Board’s decisions with respect to each of Mr. Kitlinski’s other three claims. We address those three claims below.

1. The anti-discrimination provision of USERRA, 38 U.S.C. § 4311(a), states that a person who is a member of a uniformed service shall not be denied “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of his membership in the military or performance of military service. A person claiming discrimination by a federal executive agency in violation of section 4311(a) of USERRA may choose to submit a complaint directly to the Merit Systems Protection Board. 38 U.S.C. § 4324(b). In order to establish that the Merit Systems Protection Board has jurisdiction over a USERRA discrimination claim, the appellant must make a nonfrivolous allegation that his military service was “a substantial or motivating factor” in the agency’s action in question. Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009); Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001); Lourens v. Merit Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed. Cir. 1999); see also 38 U.S.C. § 4311(c); Wilborn v. Merit Sys. Prot. Bd., No. 2016-2533, 2017 WL 930807, at *2 (Fed. Cir. Mar. 9, 2017); Baney v. Merit Sys. Prot. Bd., 415 Fed.Appx. 244, 246 (Fed. Cir. 2011).

Mr. Kitlinski’s first claim is that the DEA discriminated against him in violation of USERRA section 4311(a) because of his military service. The problem with that claim, as the Board held, is that the agency’s actions do not fit within the categories of actions that section 4311(a) prohibits an agency from taking, i.e., the denial of “initial employment, reemployment, retention in employment, promotion, or any benefit of employment.”

The only one of those prohibitions that Mr. Kitlinski argues is applicable in this case is the denial of a “benefit of employment.” We agree with the Board, however, that the agency’s alleged placement of the Blackberry in Mr. Kitlinski’s car did not constitute the denial of a “benefit of employment” within the meaning of section 4311(a) of USERRA. This court has held that “a nexus between an allegedly-denied benefit and one’s employment is an essential component of this type of US-ERRA claim.” Thomsen v. Dep’t of the Treasury, 169 F.3d 1378, 1381 (Fed. Cir. 1999). It would stretch the term “benefit of employment” far beyond its reasonable limits to construe it to mean freedom from any improper or unlawful acts committed by any representative of an employer outside the workplace, such as the alleged placement of a Blackberry in Mr. Kitlin-ski’s vehicle while he was present at the DEA headquarters for a deposition.

Similarly, the investigative measures taken by the OPR investigators cannot reasonably be characterized as the denial of a benefit of employment. While Mr. Kitlinski objects to the steps taken by the OPR investigators, including meeting Mr. Kitlinski at the Coast Guard headquarters and insisting that he produce the Blackberry and appear for an interview at the DEA headquarters the next day, those actions did not deny Mr. Kitlinski a benefit of employment under any reasonable definition of that term. That conclusion is confirmed by section 4303(2) of USERRA, which defines the term “benefit of employment” to mean the “terms, conditions, or privileges of employment” and benefits flowing therefrom.

Mr. Kitlinski argues that the purpose of the Blackberry incident was to enable the DEA to obtain information to use in the legal proceedings he had brought against the agency, including his two prior USER-RA claims. That contention, even if true, would not make freedom from monitoring outside the workplace a “benefit of employment” within the meaning of USER-RA. The Board therefore correctly held that Mr. Kitlinski failed to make a nonfriv-olous allegation of acts of USERRA discrimination under section 4311(a) based on the Blackberry incident and the OPR investigation.

2. Mr. Kitlinski’s second claim is that the combination of the Blackberry incident and the DEA’s subsequent investigation of that incident created a hostile work environment. He argues on appeal that the creation of a hostile work environment constituted discrimination based on his military service, in violation of USERRA section 4311(a), because it was motivated by anti-military animus. That claim, too, was properly rejected. As the Board observed, Mr. Kitlinski did not allege before the Board that the DEA created a hostile work environment because of his military service. Nor has Mr. Kitlinski pointed to any evidence of such a motivation.

In his brief, Mr. Kitlinski alludes to an attachment to his petition for review by the full Board, which he characterizes as reciting the “long standing number of disputes with the DEA,” and detailing “repeated aet[s] of discriminatory animus, denials of promotions and transfers, inaccurate responses to pointed Congressional inquiries, anti-military comments by the DEA Career Board, conflicting Agency explanations for its conduct and years long contests between Petitioner and the Agency over personnel actions taken or not taken.” But a document describing Mr. Kitlinski’s clashes with the agency is no substitute for an allegation of anti-military animus as the basis for creating a hostile work environment. The discrimination claim in the form of a hostile work environment based on military status therefore fails on that ground.

3. Mr. Kitlinski’s third claim is that the Blackberry incident and the subsequent OPR investigation constituted individual acts of retaliation against him because of his prior invocation of his rights under USERRA, and that those acts therefore violated section 4311(b), USERRA’s anti-retaliation provision. The Board held that Mr. Kitlinski failed to make a nonfrivolous allegation that either the Blackberry incident or the subsequent investigation qualified as an'individual act of retaliation for his previous USERRA activities, and we agree.

USERRA’s prohibition against retaliation in section 4311(b) provides that an employer “may not discriminate in employment against or take any adverse employment action against any person” because he has taken an action to enforce a protection provided by USERRA or has exercised a right provided for by USERRA. 38 U.S.C. § 4311(b). Thus, the anti-reprisal statute is limited to barring acts of discrimination in employment and adverse employment actions. See Lisdahl v. Mayo Found., 633 F.3d 712, 721 (8th Cir. 2011); Crews v. City of Mt. Vernon, 567 F.3d 860 (7th Cir. 2009).

As the Board held, the Blackberry incident and the investigation that followed it do not constitute acts of “discrimination in employment” or “adverse employment actions.” With respect to “discrimination in employment,” the placement of a Blackberry in Mr. Kitlinski’s car, as the Board found, “does not deny him a benefit that inures to him by virtue of his employment with the agency.” Nor does that act constitute an “adverse employment action,” which is generally defined to include actions adversely affecting the employee’s employment status, such as firing, demotion, suspension, a loss of benefits, or a reduction in pay.

Similarly, as the Board ruled, an investigation does not ordinarily constitute an act of “discrimination in employment” or an “adverse employment action.” That is particularly clear in this case, as the investigation did not relate directly to Mr. Kitlin-ski’s employment with the DEA. As the administrative judge pointed out, Mr. Kit-linski had been on long-term leave from the DEA while he served with the Coast Guard, and the investigation related to an incident that occurred at the time of his deposition in his EEO case against the agency. The investigation thus had no apparent effect on his employment with the DEA and did not constitute discrimination in employment or an adverse employment action. We therefore sustain the Board’s ruling that Mr. Kitlinski failed to make a nonfrivolous allegation that the discrete actions about which he complains—the Blackberry incident and the investigative activities that followed—violated USER-RA’s anti-retaliation provision.

4. As noted, the full Board did not address one of Mr. Kitlinski’s claims: that the creation of a hostile work environment was the product of forbidden retaliation under section 4311(b), the anti-retaliation provision of USERRA. The Board’s counsel has requested that we remand the case to the Board to address that issue in the first instance. We grant the request of the Board’s counsel. Therefore, while we uphold the Board’s decision with respect to the three claims that the Board addressed, we vacate the Board’s order and remand the case to the Board in order to enable the Board to address the issue that was left unaddressed in the initial petition for review proceeding.

Each party shall bear its own costs for this appeal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

      . As an alternative to a direct complaint to the Board, an employee may elect to apply to the Secretary of Labor for assistance with his discrimination claim. See 38 U.S.C. § 4322(a). The Secretary may attempt to resolve the matter or refer it to the Office of Special Counsel, which may assist the employee with his complaint before the Board. See 38 U.S.C. §§ 4322(d), 4324(a). Mr. Kitlinski did not elect that option, but filed his complaint directly with the Board.

      . Mr. Kitlinski cites several cases in which excessive monitoring of an employee was asserted as a basis for a claim of retaliation or a hostile work environment under other statutes. Those cases involved extended periods of monitoring in the workplace, quite different from the single instance of monitoring outside of the workplace that is alleged in this case.
      In his petition for review to the full Board, Mr. Kitlinski was critical of the administrative judge’s characterization of the alleged placement of the Blackberry as lasting only a few hours on the morning of Mr. Kitlinski’s deposition. Appellant’s Petition for Review at 10. In his narrative attachment to his complaint, however, Mr. Kitlinski specifically asserted that the "placement of the listening and tracking device occurred on the very day I was deposed by the Agency,” e-Appeal Attachment Transmittal at 6-7; see also id. at 3. It was therefore entirely reasonable for the administrative judge to accept Mr. Kitlinski's factual proffer on that issue as true.

      . As the Crews court explained, the language of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) does not contain the limiting language found in section 4311(b) of USER-RA; for that reason the anti-retaliation provision of Title VII has not been limited to employment-related actions. Crews, 567 F.3d at 869.


source: Caselaw Access Project

author: HUGHES, Circuit Judge.

license: Public Domain

text:
    John PRESTON, Directly and Derivatively, as Shareholder of Electromagnetics Corporation, a Delaware Corporation, Continuum Energy Technologies, LLC, a Delaware Limited Liability Company, Plaintiffs-Appellees v. Christopher NAGEL, IDL Development, LLC, Defendants-Appellants
    2016-1524
    United States Court of Appeals, Federal Circuit.
    Decided: June 1, 2017

      Joseph M. Cacace, Todd & Weld LLP, Boston, MA, argued for plaintiffs-appel-lees. Also represented by Howard M. Cooper.
    Kevin Paul Martin, Goodwin Procter LLP, Boston, MA, argued for defendants-appellants. Also represented by Roberto M. Braceras; Michael Gavin Strapp, DLA Piper US LLP, Boston, MA.
    Before DYK, TARANTO, and . HUGHES, Circuit Judges.
   HUGHES, Circuit Judge.

The district court remanded this case to state court for a lack of subject-matter jurisdiction. Because 28 U.S.C. § 1447(d) bars review of the district court’s decision to remand, we dismiss this appeal.

I

Plaintiffs (collectively, Preston) filed a complaint against Defendants (collectively, Nagel) in Massachusetts Superior Court alleging fifteen state-law claims. Nagel answered the complaint and filed eleven counterclaims under the Declaratory Judgment Act seeking declarations of non-infringement of several patents held by plaintiff Electromagnetics Corporation. Nagel also removed the case to the United States District Court for the District of Massachusetts under 28 U.S.C. § 1441, the general removal statute, and 28 U.S.C. § 1454, the patent removal statute. Preston moved to remand. The court determined that it lacked subject-matter jurisdiction because Preston’s state-law claims did not arise under federal law and Nagel’s patent counterclaims did not present a jus-ticiable case or controversy under Article III. It therefore remanded the case to Massachusetts Superior Court. Nagel timely appealed.

II

A

Nagel seeks review of the district court’s decision to remand this case. Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” subject to statutory exceptions not applicable here. This re-viewability bar “applies equally to cases removed under the general removal statute, § 1441, and.to those removed under other provisions.” Kircher v. Putnam Funds Tr., 547 U.S. 633, 641, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006). Because § 1447(d) is to “be read in pari materia with § 1447(c),” it “precluded] review only of remands for lack of subject matter jurisdiction and for defects in removal procedure.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229-30, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007); see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). As the district court found no procedural flaws, [J.A. 131-34], we must determine if it “relied upon a ground that is colorably characterized as subject-matter jurisdiction.” Powerex, 551 U.S. at 234, 127 S.Ct. 2411. If it did, “appellate review is barred by § 1447(d).” Id.

Here, the district court remanded the case because it found that it lacked subject-matter jurisdiction over Preston’s state-law claims and that Nagel’s patent counterclaims did not present an Article III case or controversy because they failed to satisfy the immediacy requirement of MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). At oral argument, Preston conceded that this was a remand based on subject-matter jurisdiction. Oral Argument at 13:10-13:21, http://oralarguments.cafc.uscourts.gov/default. aspx?fl=2016-1524.mp3. Thus, § 1447(d) facially controls, and we are precluded “from second-guessing the district court’s jurisdiction determination regarding subject matter,” Vermont v. MPHJ Tech. Invs., LLC, 763 F.3d 1350, 1353 (Fed. Cir. 2014), “no matter how plain the legal error in ordering the remand,” Briscoe v. Bell, 432 U.S. 404, 413 n.13, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977).

B

Recognizing that § 1447(d) would ordinarily bar reviewability here, Nagel asks us to hold that an exception exists “where, as here, defendants invoked § 1454 to remove patent claims over which federal courts have exclusive jurisdiction.” Appellants’ Br. at 17. In support, Nagel relies on Osborn v. Haley, 549 U.S. 225, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007), to argue that the America Invents Act (AIA) overrides § 1447(d)’s bar. We disagree.

1

In Osborn, the Supreme Court determined that remands of certified Westfall Act cases are reviewable, despite § 1447(d)’s bar on appellate review of remand orders. Id. at 248, 127 S.Ct. 881. Under the Westfall Act, when federal employees are sued for common-law torts that occurred in the course of their official duties, the United States is substituted as the defendant after the Attorney General certifies that the employee had acted within the scope of his or her federal employment. 28 U.S.C. § 2679(d)(1)-(2). That certification “conclusively establishes] scope of office or employment for purposes of removal,” id. § 2679(d)(2), and by extension, exclusive federal jurisdiction, Osborn, 549 U.S. at 231, 127 S.Ct. 881. Unlike the ordinary case, in which the “federal district court undertakes a threshold inquiry” of “whether complete diversity exists or whether the complaint raises a federal question,” in a certified Westfall Act case, “no threshold determination is called for” because “the Attorney General’s certificate forecloses any jurisdictional inquiry.” Id. at 243, 127 S.Ct. 881. Thus, the Court concluded that remands of certified cases are reviewable. Id. at 244, 127 S.Ct. 881. The Court reasoned that the conclusive nature of the Attorney General’s certification for removal purposes “would be weightless” if a district court could “remand a removal action on the ground that the Attorney General’s certification was erroneous.” Id. at 242, 127 S.Ct. 881; see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 433 n.10, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (explaining that Congress adopted the Westfall Act language making certification “conclusiv[e] ... for purposes of removal” to “foreclose needless shuttling of a case from one court to another”).

However, the Court defined this exception to the § 1447(d) bar narrowly to avoid “collid[ing] head on with § 1447(d), and with [prior] precedent.” Osborn, 549 U.S. at 244, 127 S.Ct. 881. Noting that because appellate review is “scarcely” permitted, it held that courts should review remand orders ordinarily governed by § 1447(d) only “in the extraordinary case in which Congress has ordered the intercourt shuttle to travel just one way—from, state to federal court.” Id. at 243-44, 127 S.Ct. 881.

2

According to Nagel, the AIA makes this case similarly “extraordinary.” Congress included several provisions in the AIA to strengthen federal courts’ jurisdiction over patent claims in response to the Supreme Court’s decision in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., which held that the Federal Circuit lacked jurisdiction to hear appeals from cases “in which the complaint does not allege a claim arising under federal patent law, but the answer contains a patent-law counterclaim.” 535 U.S. 826, 827, 831-32, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002). After Holmes Group, some believed that only the state courts could hear patent-law counterclaims in the same action as a plaintiffs state-law claims. See, e.g., Green v. Hendrickson Publishers, Inc., 770 N.E.2d 784, 793-94 (Ind. 2002) (relying on Holmes Group to find that state courts have jurisdiction to entertain copyright counterclaims with reasoning that applies to patent counterclaims); Report of the Ad Hoc Committee to Study Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 12 Fed. Cir. B.J. 713, 715 (2003) (“Under Green, no federal court will have jurisdiction to adjudicate patent claims asserted for the first time in responsive pleadings when the plaintiffs claims arise under state law, absent diversity jurisdiction.”).

Members of Congress expressed that Holmes Group could “lead to an erosion in the uniformity or coherence in patent law that has been steadily building since the [Federal] Circuit’s creation in 1982,” H.R. Rep. No. 109-407, at 5 (2006), and therefore made three changes in the AIA to address federal jurisdiction of patent claims: (1) 28 U.S.C. § 1338(a) was strengthened to clarify that state courts had no jurisdiction over “any claim for relief arising under any Act of Congress relating to patents”; (2) the Federal Circuit’s exclusive jurisdiction was extended to include cases with compulsory patent counterclaims, see 28 U.S.C. § 1295(a)(1); and (3) a provision was added to permit a party to remove to federal court a case in which any party asserts a patent claim, see 28 U.S.C. § 1454. See Vermont v. MPHJ Tech. Invs., LLC, 803 F.3d 635, 643-44 (Fed. Cir. 2015).

3

Nagel argues that the “Holmes Group fix” created the one-way “intercourt shuttle” that Osborn described. By depriving the state court of jurisdiction to hear patent claims (including counterclaims) and by creating a removal provision targeted at patent claims (and counterclaims), Congress created a vehicle for a defendant’s patent counterclaims to be heard in federal court alongside a plaintiffs state-law claims. But nothing in the AIA operates like the Attorney General’s certification under the Westfall Act, which was “[o]f prime importance to [the Supreme Court’s] decision” because it “foreclose[d] any jurisdictional inquiry.” Osborn, 549 U.S. at 241, 243, 127 S.Ct. 881. Rather, here the district court was still required to “undertake a threshold inquiry” of “whether complete diversity exists or whether the complaint raises a federal question.” See id. at 243, 127 S.Ct. 881. Having done so, the district court concluded that it lacked subject-matter jurisdiction because Preston’s claims arose under state law and Nagel did not establish that the counterclaims satisfied the Article III case-or-controversy requirement. Since the district court’s task was that of the “typical case,” the narrow exception of Osborn does not permit us to review the district court’s remand decision.

Nagel further argues that we must be able to review the district court’s remand here to avoid a problem that the Supreme Court identified as potentially “serious”: the death knell of a claim subject to exclusive federal jurisdiction without federal review. See Kircher, 547 U.S. at 645-46, 126 S.Ct. 2145. Because the state court must dismiss Nagel’s patent counterclaims for lack of jurisdiction, see 28 U.S.C. § 1338(a), Nagel argues that he will have been deprived of the opportunities to have his claims heard on the merits in any forum and to challenge the district court’s allegedly erroneous basis for remand. But Nagel’s concern rings hollow here, where, unlike in Osborn, Nagel has an alternative way to present his patent claims on the merits in federal court: a separate federal declaratory judgment action. See Oral Arg. at 7:50-8:05 (conceding that Nagel could have filed a new federal case rather than asserting counterclaims). And any final decision in that case—jurisdictional or on the merits—would be appealable here. Therefore, assuming that the district court’s MedImmune determination here was erroneous, Nagel has lost, at most, the ability to have his declaratory judgment claims heard with Preston’s state-law claims. That result does not interfere with Congress’s primary objective in enacting the “Holmes Group fix”—maintaining uniformity in patent law. See H.R. Rep. No. 109-407, at 5.

To the extent the AIA prefers that closely related state-law claims and patent-law counterclaims be heard together, it does not follow that we have jurisdiction to review remand decisions that require such claims to be pursued in separate forums. “Absent a clear statutory command to the contrary, we assume that Congress is aware of the universality of th[e] practice of denying appellate review of remand orders when Congress creates a new ground for removal.” Kircher, 547 U.S. at 641 n.8, 126 S.Ct. 2145 (quoting Things Remembered v. Petrarca, 516 U.S. 124, 128, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)) (alterar tion in original). Though hearing the state-law and patent-law claims together may promote important interests such as efficiency and avoiding inconsistent judgments, we are not persuaded that the AIA commands us to favor these interests over § 1447(d) and the presumption of remand non-reviewability. Had Congress sought to permit review of remands like the one at issue here, it certainly knew how to do so. Id. (collecting examples). Thus, we leave it to Congress to grant us reviewability here if it sees fit.

III

Because § 1447(d) prohibits our review of the district court’s remand order, we dismiss the appeal for lack of subject-matter jurisdiction.

DISMISSED

      . State-law claims may arise under federal law if a federal issue is "(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013) (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313-14, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)).

      . The defendant-counterclaimant always had the option to assert the patent claim in a separate action in federal court.

      . E.g., H.R. Rep. No. 109-407, at 18 (statement of Rep. Smith) ("The [removal] provision also promotes administrative efficiencies by obviating the need for a state litigant to file a second suit to address patent claims in federal court.”).


author: TORRUELLA, Circuit Judge. KAYATTA, Circuit Judge,

text:
    Felipe GARCÍA-CRUZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
    No. 15-2272
    United States Court of Appeals, First Circuit.
    May 26, 2017

      Randy Olen, Providence, RI, for petitioner.
    Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Andrew N. O’Malley, Senior Litigation Counsel, were on brief, for respondent.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.

       Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Jefferson B. Sessions III is substituted for former Attorney General Loretta E. Lynch, as respondent.

   TORRUELLA, Circuit Judge.

Petitioner Felipe García-Cruz appeals from a Board of Immigration Appeals (“BIA”) decision, which affirmed an Immigration Judge’s (“U”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). García-Cruz argues that he presented sufficient evidence to establish both past persecution and a well-founded fear of future persecution, and that he could not reasonably relocate within Guatemala, the country of removal.

BACKGROUND

A. Factual Background

García-Cruz is a native of Guatemala, from the village of Chixocol, in the municipality of Zacualpa. García-Cruz became involved in politics in June 2011, after seeing the Patriota (Spanish for “Patriot”) party’s mayoral candidate for Zacualpa, Gabriel Ventura, deliver a speech. That month, he joined the Patriota party, and by August he had become a member of the party’s executive committee. As a member of the committee, he traveled to campaign events to handle set up and logistics; in his time with the party, he helped prepare three rallies.

The incumbent mayor, Ernesto Cala-chij-Riz, belonged to the Une y Gana (Spanish for “Unite and Win”) party. According to García-Cruz, in the days leading up to the elections, Une y Gana members “began to carry weapons and threaten [Patriota supporters] with their weapons. They had guns and they had sticks and machetes ... and they knew who [Patriota supporters] were.” Une y Gana members also threatened to “kill anyone who voted for Ventura.” Patriota supporters were “ridiculed, sometimes even beaten by the Une y Gana party.” Nevertheless, García-Cruz and his family cast their votes for Ventura on September 11, 2011.

That night, it was announced that Cala-chij-Riz, the Une y Gana candidate, had won the race. The next morning, Patriota members gathered at the Une y Gana victory rally, where a “huge fight broke out” and the “city hall was set on fire.” García-Cruz was at home at the time, but other Patriota supporters told him that “the Une y Gana party was going to kill off all the members of the [Patriota party].” In addition, the Une y Gana party made “a list of people they accused of being responsible for the fire.” García-Cruz was on the list, even though he “had nothing to do with the fire,” because of his “involvement in the Patriota party.”

García-Cruz received five threatening phone calls in the aftermath of the September 2011 election. The first came just days after the election, when an anonymous caller—who identified himself as an Une y Gana member—blamed García-Cruz for the fire, pledged to hold him responsible for it, and threatened his life. A second anonymous caller made similar allegations and stated: “We are watching you, and when we find you we will kill you.” García-Cruz became so concerned for his life that he stopped leaving his house. In the third call, the caller asked García-Cruz why he had stopped leaving the house, to which García-Cruz responded that he was frightened.

Fearing for his life, García-Cruz moved to Cobán, Alta Verapaz, Guatemala. There, he found work running games at fairs and carnivals. On October 9, 2011, while in Cobán, García-Cruz received the next phone call. The caller asked why he had left Chixocol and told García-Cruz that they knew where he was. In the fifth and final phone call, in January 2012, the caller told García-Cruz that if he did not return to Chixocol, Une y Gana would kidnap his wife and children. García-Cruz never reported the threatening phone calls to authorities. He claimed that the local police were “in the present mayor’s pocket,” and he feared word would get back to those threatening him if he reported the calls to the national police.

In the days after the fifth phone call, García-Cruz relocated his family to the village of Salamá, about ten hours from Chixocol. García-Cruz also removed the chip from his cell phone so that he would not receive any more calls. After saving enough money, García-Cruz left Guatemala for the United States in May 2012. Nothing suggests that he was either harmed or threatened further between January and May of 2012.

The political conflict in Zacualpa resulted in other Patriota members being targeted. García-Cruz averred that “other members of the Patriota party were being kidnapped and beaten.” Two or three weeks after the election, an acquaintance of Ventura was “taken from his home and beaten very badly.” Another Patriota member was abducted by Une y Gana and only returned as part of a prisoner exchange. García-Cruz also testified that he knew of “at least one” person who was killed by Une y Gana “in the year that [he] left.” García-Cruz does not know what happened to other members of the committee who were accused of burning the city hall, however. In June 2012, after García-Cruz fled Guatemala, Ventura was arrested by the police for alleged crimes against his political rivals, triggering further protests.

At the time of Garcia-Cruz’s hearing, the president of Guatemala was a member of the Patriota party, but the Une y Gana party remained in control of Zacualpa. In addition, Garcia-Cruz’s wife and children were still living in Salamá. García-Cruz, however, could not live with them because they lived with his wife’s employer, and he would not be able to find work in Salamá.

B. Procedural History

The IJ also concluded that Garcia-Cruz’s fear of future persecution was not well-founded; given the time elapsed and Garcia-Cruz’s limited involvement with the campaign, there was little support for his assertion that he would be targeted if he returned to Guatemala. Furthermore, the IJ found that, “although it would be economically difficult,” García-Cruz could relocate within Guatemala because Guatemala’s president at the time of the hearing was a member of the Patriota party and “the Patriota party ha[d] gained significant ground in Guatemala.” Specifically, García-Cruz could “reasonably]” and “safely” relocate to Salamá, where he had relocated his wife and children. Thus, the IJ denied Garcia-Cruz’s applications for both asylum and withholding of removal. The IJ concluded by denying Garcia-Cruz’s application for protection under the CAT given his failure to demonstrate that he would be subjected to torture by or with the acquiescence of a public official.

On September 30, 2015, the BIA upheld the IJ’s decision on two grounds. First, it adopted the IJ’s determination that the “five anonymous threatening phone calls were not so menacing as to have caused some actual harm,” and so they did not rise to the level of past persecution. Second, it found “no clear error of fact or mistake of law in the Immigration Judge’s assessment” that García-Cruz “would be able to relocate to another area in Guatemala.” It cited the fact that his wife and children lived in Salamá as “strong evidence that [García-Cruz] could do so as well.” Thus, the BIA ruled that García-Cruz was not eligible for either asylum or withholding of removal. Finally, the BIA affirmed that García-Cruz failed to establish that “he had ever been tortured or that government officials seek to torture him.” The BIA therefore dismissed his appeal, and García-Cruz petitioned this Court for review.

ANALYSIS

We review the BIA’s findings of fact under a “substantial evidence” standard, and we will uphold them if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (quoting Hasan v. Holder, 673 F.3d 26, 33 (1st Cir. 2012)). Questions of law are reviewed de novo. Id. Thus, we will reverse the BIA’s determination only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

To be eligible for asylum, García-Cruz must establish that he is unwilling or unable to return to Guatemala “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Proof of past persecution creates a presumption of a well-founded fear of future persecution.” Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014); 8 C.F.R. § 1208.13(b)(1). But the Government can rebut this presumption by demonstrating either changed circumstances or that García-Cruz “could avoid future persecution by relocating to another part of [Guatemala] ... and under all the circumstances, it would be reasonable to expect [him] to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B). Similarly, García-Cruz cannot establish a well-founded fear of future persecution if he “could avoid persecution by relocating to another part of [Guatemala] ... [and] under all the circumstances it would be reasonable to expect [him] to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).

A. Substantial Evidence Supported the BIA’s Determination that García-Cruz Did Not Suffer Past Persecution

García-Cruz sought to demonstrate that he suffered persecution in Guatemala, in the form of death threats, on account of his political beliefs, thus creating a rebuttable presumption that he will more likely than not suffer persecution if returned to Guatemala. See 8 C.F.R. § 1208.13(b)(1). “[Credible, specific threats can amount to persecution if they are severe enough.” Javed v. Holder, 715 F.3d 391, 395-96 (1st Cir. 2013). “ ‘Threats of murder’ fit squarely within this rubric.” Id. at 396 (quoting López de Hincapié v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007)). “[T]he addition of physical violence” is not required for a finding of past persecution, id., but “threats standing alone constitute past persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm.” Bonilla v. Mukasey, 539 F.3d 72, 77 (1st Cir. 2008) (quoting Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008)).

In Bonilla, the petitioner received frequent telephone calls from a militant group threatening his and his family’s lives because of his support for a presidential candidate. Id. at 74-75. After he changed his telephone number, the same group left a letter outside his apartment declaring the petitioner “a military target.” Id. at 75. The BIA adopted the immigration judge’s ruling that this was not past persecution. Id. at 76. We affirmed, stating that “we [could not] say that the agency was compelled to find that [the petitioner] was persecuted.” Id. at 78. Similarly, in Un v. Gonzales, the petitioner was twice confronted by government agents, who told him on the second occasion that he would be killed, and a friend subsequently told him to “go into hiding because they were ‘looking to kill [the petitioner].’ ” 415 F.3d 205, 207-08 (1st Cir. 2005). The BIA had not considered the possibility of past persecution, and we remanded for a finding because “we [could not] say the evidence compels a conclusion either way.” Id. at 209.

The intensity and credibility of the threats received by García-Cruz are similar to those in Bonilla and Un. Bonilla in particular seems factually analogous, closer than cases like Javed, 715 F.3d 391, cited by García-Cruz, in which we have held that threats constituted persecution as a matter of law. Although the BIA certainly could have found that García-Cruz suffered past persecution on this record, given our deferential standard of review, we cannot say that it was compelled to do so.

B. The BIA Did Not Correctly Analyze Whether It Would Be Reasonable to Expect García-Cruz to Relocate Within Guatemala

The BIA concluded that García-Cruz “did not establish ... a well-founded fear of persecution.” However, it did so on only one possible ground—by adopting the IJ’s finding that García-Cruz “would be able to relocate to another area in Guatemala.”

“An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality ... if under all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). When determining whether such internal relocation is reasonable:

adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.

8 C.F.R. § 1208.13(b)(3).

Determining whether an applicant can reasonably relocate within the applicant’s country of nationality entails a two-step analysis. Matter of M-Z-M-R-, 26 I. & N. Dec. 28, 32 (2012). First, the BIA must decide whether there is a safe area of the country, he., one where the applicant would have no well-founded fear of persecution. Id. Second, if there is such an area, the BIA must analyze whether “it would be reasonable for the applicant to relocate,” applying the considerations of 8 C.F.R. § 1208.13 (b)(3). Id. at 34-35 (quoting 8 C.F.R. § 1208.13(b)(1)(i)(B)).

1. Jurisdiction

Before we proceed, we must determine whether we can review all of García-Cruz’s arguments. We may only review Garda-Cruz’s claims if he “has exhausted all administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1). In his appeal to the BIA, García-Cruz argued only that he would not be safe if he relocated within Guatemala. He did not argue that the IJ made any error in determining that it would be reasonable for him to relocate. Before us, however, García-Cruz also argues that the IJ and the BIA did not properly apply the considerations listed in 8 C.F.R. § 1208.13(b)(3).

The Government has not raised this issue, and it appears that we have not previously addressed whether we would raise failure to exhaust sua sponte in the asylum context. But administrative exhaustion in this context is an “inquiry into subject-matter jurisdiction,” Mazariegos-Paiz v. Holder, 734 F.3d 57, 62 (1st Cir. 2013), and where a requirement is jurisdictional— where it “affect[s] a court’s constitutional or statutory power to adjudicate a case”— a party’s failure to fulfill that requirement is “nonwaivable.” Bennett v. City of Holyoke, 362 F.3d 1, 7-8 (1st Cir. 2004); see also Alphas Co. v. William H. Kopke, Jr., Inc., 708 F.3d 33, 36-38 (1st Cir. 2013). We therefore hold that we may determine whether a petitioner has exhausted his or her administrative remedies as required by 8 U.S.C. § 1252(d)(1), even if no party has addressed the issue.

A petitioner generally “cannot proffer a theory to the IJ, forgo any presentation of that theory to the BIA, and then resurrect the theory on a petition for judicial review.” Ramírez-Matías v. Holder, 778 F.3d 322, 327 (1st Cir. 2015). Although a party presenting an issue to the BIA is the most common way in which an issue is exhausted, however, it is not the only way. Mazariegos-Paiz, 734 F.3d at 62. Even if an issue was not raised by a party, the issue is exhausted if the BIA addresses the issue on the merits. Id at 63 (“Where an agency has opted to [address an issue], there is no logical reason why exhaustion should turn on which party (if either) brought the issue to the agency’s attention.”); see also Xin Qiang Liu, 802 F.3d at 74 (“The exhaustion requirement is satisfied where the agency chooses to address the merits of a particular issue, regardless of whether the alien raised that issue.” (quoting Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir. 2015))).

Here, the IJ squarely addressed the issue. It found that although “it would be economically difficult [for García-Cruz to relocate], it is reasonable to expect internal relocation rather than to come to the United States.” The IJ further explained that Garcia-Cruz’s “wife and children remain in Guatemala in a town nine to [ten] hours from Chixocol” and so it would be “reasonable for [him] to relocate there”—plus, the IJ added, “he could do so safely.”

For its part, the BIA repeated how the IJ had found that García-Cruz “would be able to relocate to another area in Guatemala.” The BIA then stressed that “[i]n this regard,” the IJ had noted that Garcia-Cruz’s “wife and child remain in Guatemala in a town 9 or 10 hours away, strong evidence that [he] could do so as well.” And the BIA found “no clear error of fact or mistake of law with the [IJ’s] assessment.” The BIA therefore briefly addressed the reasonableness of internal relocation on its own—finding that his wife and children remaining in Guatemala was “strong evidence” that he could relocate— and it adopted the IJ’s more detailed reasoning on that point. Thus, we can review both whether the BIA properly found that it was safe for García-Cruz to relocate within Guatemala—which García-Cruz has raised at every level—and whether the BIA properly found that he could reasonably do so—an issue which the BIA addressed on the merits.

2. The Merits

Substantial evidence supports the BIA’s finding that García-Cruz could safely relocate within Guatemala. As the IJ described: García-Cruz lived in Cobán from January 2012 to May 2012 without any further threats after removing the chip from his phone; his wife and children apparently lived unmolested after they moved to Salamá; at the time of the hearing, almost three years had passed since the 2011 mayoral election; and “the Patrio-ta party ha[d] gained significant ground in Guatemala.” Although none of this evidence is conclusive, we are not compelled to overturn the IJ’s finding.

But the IJ and the BIA described no similar evidence to support their conclusion that, although “it would be economically difficult,” it would be reasonable to expect García-Cruz to relocate internally. Instead, both essentially asserted that because Garcia-Cruz’s wife and children resided elsewhere in Guatemala, so could he.

8 C.F.R. § 1208.13(b)(3), however, lists a number of factors that an adjudicator should consider. “[W]hile the IJ and BIA do not necessarily have to address each of [8 C.F.R. § 208.13(b)(3)’s] reasonableness factors explicitly ... the agency must explain why the factors that cut against the asylum applicant outweigh the factors in his favor.” Khattak v. Holder, 704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v. Gonzales, 241 Fed.Appx. 432, 434 (9th Cir. 2007) (remanding asylum petition for further review because “the IJ did not consider whether [the petitioner’s] relocation would be reasonable”). In Khattak, the BIA determined that the petitioner could relocate to another part of Pakistan where he owned a home and had briefly lived twenty years earlier. 704 F.3d at 206-07. We remanded to the BIA, however, because (1) “neither the IJ nor the BIA addressed evidence in the record indicating that” the petitioner would not be safe in that area and (2) “neither the IJ nor the BIA made any mention of [the reasonableness] factors.” Id. at 207.

Relevant factors here include:

• “ongoing civil strife within the country” (the IJ found that “electoral violence” is common “in every electoral cycle”);
• “economic ... infrastructure” (the IJ found that relocation “would be economically difficult”);
• “social and cultural constraints” (García-Cruz speaks Quiché, a minority language that has no official status and is spoken mainly in Guatemala’s central highlands); and
• “familial ties” (all of Garcia-Cruz’s extended family live in Chixocol).

Yet the IJ and the BIA discussed only the fact that Garcia-Cruz’s wife and children were in Salamá. They did not address evidence in the record that appears to undercut the conclusion that García-Cruz could reasonably relocate within Guatemala—for example, Garcia-Cruz’s testimony that he could not live with his wife in Salamá and does not “have a home ... [or] a job” there. Thus, neither the BIA nor the IJ “presented a reasoned analysis of the evidence as a whole.” Id. at 208 (quoting Jabri v. Holder, 675 F.3d.20, 24 (1st Cir. 2012)).

García-Cruz asserts that “every single factor” supports a conclusion that he cannot reasonably relocate, but he does little to develop this argument. He then asserts that the BIA’s “unfounded conclusion ... itself requires reversal.” That is not accurate. To reverse the BIA’s order, rather than simply remand it, the evidence must compel us to conclude that it would be unreasonable for García-Cruz to relocate within Guatemala. Id. at 207 (citing INS v. Elías-Zacarías, 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). There is significant evidence in the record supporting a conclusion that relocation would be unreasonable. But García-Cruz has understandably focused on the BIA’s failure to properly analyze the reasonableness factors, rather than whether the evidence compels a finding that internal relocation would be unreasonable, and neither the IJ nor the BIA weighed the reasonableness factors. Given the limited analysis on this issue, we think it best to remand to the BIA to consider it fully. We therefore grant the petition for review, vacate the BIA’s order, and remand for further proceedings.

CONCLUSION

Petition for review granted, order vacated, and case remanded for further proceedings.

KAYATTA, Circuit Judge,

dissenting in part.

I agree with my colleagues that the record supports the BIA’s finding that the events occurring before García-Cruz left Guatemala to enter the United States in May of 2012 did not constitute the type of persecution that creates a presumption of a well-founded fear of future persecution. I also agree that the record supports the BIA’s finding that García-Cruz could have, in any event, safely moved elsewhere in Guatemala.

I cannot agree, however, that we have jurisdiction to adjudicate Gareia-Cruz’s newly minted argument that the agency failed to consider adequately the relevant factors in finding that it would be “reasonable” to expect him to relocate within Guatemala. Congress has stated that we “may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). This means “that theories not advanced before the BIA may not be surfaced for the first time in a petition for judicial review of the BIA’s final order.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). We have further concluded that “[t]his exhaustion requirement is jurisdictional; that is, it constitutes a limitation on our power of review.” Mazariegos-Paiz v. Holder, 734 F.3d 57, 62 (1st Cir. 2013); see also Sousa v. INS, 226 F.3d 28, 31 (1st Cir. 2000) (“Whatever our own views, we are bound by precedent to apply the INA exhaustion requirement in a more draconian fashion.”).

As my colleagues concede, García-Cruz never raised before the BIA his challenge to the thoroughness of the IJ’s consideration of the factors set forth in 8 C.F.R. § 1208.13(b)(3) in finding that relocation within Guatemala would be reasonable. In order to leap over this significant jurisdictional hurdle, my colleagues declare that the BIA sua sponte raised and exhausted the issue of whether relocation would be reasonable. They then assert that we can find, essentially, that the BIA’s sua sponte exhaustion of that issue was not exhaustive enough, because the BIA did not also sua sponte evaluate factors that García-Cruz never faulted the IJ for allegedly failing to consider.

To explain my disagreement, I first recount exactly what transpired before the agency. On the subject of relocation, the IJ stated the following:

Given that the Patriota party has gained ... ground [in Guatemala] and the president of the country is part of that party, the Court finds that the respondent could internally relocate and that, although it would be economically difficult to do that, it is reasonable to expect internal relocation rather than come to the United States.
... Finally, the respondent’s wife and children remain in Guatemala in a town nine to 10 hours away from Chixocol and the Court finds that it is reasonable for the respondent to relocate there and that he could do so safely.

It is plain from the above that the IJ made two relevant findings, consistent with the two-step analysis described in Matter of M-Z-M-R-, 26 I. & N. Dec. 28, 31-32 (B.I.A. 2012): (1) García-Cruz could safely relocate within Guatemala, and (2) it would be reasonable for him to do so.

As my colleagues acknowledge, in his appeal to the BIA, García-Cruz raised a question concerning only the first of those two findings. In Garcia-Cruz’s own words, the question was “[wjhether respondent can safely relocate within Guatemala.” With respect to that question, he advanced only a single, specific argument (again in his words): “Respondent cannot safely relocate within Guatemala.” And in support of that argument, he stated only:

Respondent has demonstrated that he was targeted by political enemies from UNE y GANA, a national party. As a highly visible public supporter of this party, he runs the risk of being identified and targeted throughout the country.
The fact that respondent’s wife and children have not been harmed after fleeing their hometown should be given very little weight. Respondent’s wife and children were not public supporters of the party and were not themselves politically active. Accordingly, it is unlikely that respondent’s persecutors have been able to determine the identity and location of his family. In contrast, respondent’s persecutors can easily recognize him on sight. Given these facts, the fact that respondent’s wife and children have so far escaped harm does not indicate that he can also safely relocate within Guatemala.

(citations omitted). The BIA directly responded to Garcia-Cruz’s argument with the following:

[T]he Immigration Judge found that the respondent would be able to relocate to another area in Guatemala. In this regard, the Immigration Judge noted that the respondent’s wife and children remain in Guatemala in a town 9 or 10 hours away, strong evidence that the respondent could do so as well.
We see no clear error of fact or mistake of law in the Immigration Judge’s assessment.

(citations omitted).

To find from the foregoing that the BIA raised—or even acknowledged—a challenge to the IJ’s step-two, reasonableness finding, one logically must point to language that one would not expect to find were the BIA simply discussing and rejecting Garcia-Cruz’s argument that it was not safe for him to relocate. My colleagues point to no such language. Rather, and without explanation, they point to the fact that the BIA said García-Cruz “would be able to relocate.” Yet this is what one would well expect the BIA to say in rejecting Garcia-Cruz’s argument that he could not safely relocate. My colleagues otherwise point (again without explanation) to the BIA’s observation that the fact that Garcia-Cruz’s wife and Children remained in Guatemala provided strong evidence that García-Cruz could do so as well. But this statement, too, was directly responsive to Garcia-Cruz’s argument that the experience of his wife and children did not mean that he could safely relocate as well. In short, there is no basis for reading into the BIA’s opinion any indication that it was addressing or even aware of any challenge to the IJ’s step-two, reasonableness finding. Indeed, the v,ery fact that my colleagues fault the BIA for not expressly weighing any of the step-two, reasonableness factors listed in 8 C.F.R. § 1208.13(b)(3) underscores my point: the BIA did not weigh those factors because it did not need to do so in order to respond to Garcia-Cruz’s challenge to the IJ’s step-one, safety finding. To conclude otherwise is to conclude that the BIA decided on its own to raise a question about whether the IJ’s consideration of the § 1208.13(b)(3) factors was thorough enough, and then decided not to say anything at all about the regulation, the factors, or the thoroughness of the IJ’s review. If this is exhaustion, then fatigue must be pandemic at the BIA.

The foregoing explains why the BIA did not hint at or acknowledge the reasonableness issue. But even such a hint or ac-knowledgement would not have been enough to justify my colleagues’ finding of sua sponte exhaustion. Our precedent requires the BIA to “squarely address[ ]” an issue in order for us to find that it sua sponte exhausted the issue. Mazariegos-Paiz, 734 F.3d at 63; see also Velerio-Ramirez v. Lynch, 808 F.3d 111, 117 (1st Cir. 2015) (finding that the BIA sua sponte exhausted the issue of which law applied because the BIA “addressed applicable law directly” by “remarking on the IJ’s erroneous use of removal law, stating that [petitioner’s] application is governed by deportation law, and making [an] additional unbriefed determination” regarding the issue). Applied with straight-faced rigor, this “squarely address[ ]” test ensures that we recognize sua sponte exhaustion only when “the agency makes clear its wish to entertain the argument.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1239 (10th Cir. 2010) (Gorsuch, J.).

I am at a loss to explain how the BIA’s opinion “squarely addressed” a challenge to the IJ’s finding not merely that it would be safe for García-Cruz to relocate, but also that it would be reasonable for him to do so. Perhaps what my colleagues mean to say is that if one discusses the first step of the two-step 8 C.F.R. § 1208.13(b)(2)(ii) inquiry, then one necessarily “exhausts” all challenges to the second step as well. But if this were so, then we would hold that García-Cruz himself, merely by challenging the IJ’s first-step finding as to safety, also exhausted his claim that the IJ committed procedural error in making the reasonableness determination required by the second step of the analysis. And since my colleagues correctly do not so hold, they must think that the BIA raised something that García-Cruz did not, and then squarely addressed it. Yet I can find no explanation in my colleagues’ opinion of how this is so.

The exhaustion requirement established by 8 U.S.C. § 1252(d)(1), like most issue-preservation rules, ensures a modicum of repose and orderliness in the narrowing of issues that occurs as a dispute progresses through several layers of review. This requirement preserves the agency’s statutory prerogative to go first, while also avoiding the delay and uncertainty that would result from multiple rounds of agency review. See Mazariegos-Paiz, 734 F.3d at 62-63 (citing, inter alia, SEC v. Chenery, 332 U.S. 194, 200-01, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947)). Sua sponte exhaustion does not hinder the achievement of these goals, so long as we are confident that the agency really did do what it would have done had the petitioner properly raised an argument. The “squarely address[]” rule provides that assurance only because it demands unambiguous evidence that the agency exhausted the issue on its own. By contrast, my colleagues’ dowsing for sua sponte, collateral exhaustion buried in the disposition of properly raised issues provides no such assurance. The notion that the agency itself, rather than the petitioner, may satisfy § 1252(d)(l)’s exhaustion requirement already stretches the boundaries of our jurisdictional grant. At least, though, we can say that the purposes of the exhaustion requirement are served when the BIA, for whatever reason, has squarely addressed the petitioner’s otherwise unpreserved basis for challenging the IJ’s decision. See id. When we take the yet further step of gleaning exhaustion from a record as bare as this one, on issues that, as here, raise no constitutional considerations, we abandon both statutory text and congressional purpose, and place ourselves in direct conflict with not only our own precedent, see id., but also the precedent of at least one other circuit, see Garcia-Carbajal, 625 F.3d at 1238-39. Such, I fear, may tempt Congress to conclude that the ' circuit courts of appeals cannot be trusted with our already limited power of review in this domain. I therefore respectfully dissent from the order remanding this case to the BIA.

      . The U found Garcia-Cruz’s testimony credible, and the BIA did not make a contrary finding. We therefore summarize the facts as presented by García-Cruz in his testimony and affidavit.

      . The BIA did not adopt the IJ’s findings (1) that it "could not conclude the requisite government action or inaction,” or (2) that Gar-cía-Cruz had not established a well-founded fear of future persecution even if he did not relocate within Guatemala. We therefore do not review those issues. Renaut v. Lynch, 791 F.3d 163, 170-71 (1st Cir. 2015); Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004) ("[W]here the BIA's decision adopts portions of the IJ’s opinion, we review those portions of the IJ’s opinion that the BIA has adopted.”).

      . Because we vacate the BIA’s denial of Garcia-Cruz’s asylum petition, we do not reach Garcia-Cruz’s withholding of removal and CAT claims.