Maribel Mejia Jeronimo v. U.S. Attorney General , 678 F. App'x 796 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15437
Non-Argument Calendar
________________________
Agency No. A206-703-913
MARIBEL MEJIA JERONIMO,
HENSLEY YERAIDY CARRILLO MEJIA,
DANDERLY MADENNY CARRILLO MEJIA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 30, 2017)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
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Maribel Mejia Jeronimo and her two daughters, Hensley Yeraidy Carrillo
Mejia and Danderly Madenny Carrio Mejia, petition for review of the Board of
Immigration Appeals (“BIA”) order affirming the denial by the Immigration Judge
(“IJ”) of their application for asylum and withholding of removal. We deny their
petition.
I. BACKGROUND
Jeronimo, a native and citizen of Guatemala, entered the United States with
her two daughters in July 2014. She immediately was detained by border patrol
agents and later submitted to a credible-fear interview with an asylum officer.
When asked if she ever had been harmed or threatened in Guatemala, Jeronimo
responded Gaspar Carrillo Diego, the father of her children and the man with
whom she had lived, first had harmed her two to three years prior when he came
home drunk, grabbed her by the neck, and said he was going to kill her. When she
tried to run away from him, he hit her head with a bottle; she still has a scar from
this incident. He continued to harm her by kicking and slapping her, but the first
incident was the most severe. Jeronimo also claimed she had been mistreated by
Diego’s family, because of her religion; she is part of the evangelical church and
his family is Catholic. When asked if she had been harmed or threatened in
Guatemala because of her race, color, or family heritage, Jeronimo responded she
had been harassed and insulted by other students when she was younger, because
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she spoke Mam and because of her ethnic origin. Jeronimo feared her husband
would harm or kill her if she returned to Guatemala. The asylum officer found she
had established a credible fear of persecution.
On August 1, 2014, Jeronimo was issued a Notice to Appear (“NOA”) by
the Department of Homeland Security (“DHS”) stating she was an alien present in
the United States, who had not been admitted or paroled and was subject to
removal pursuant to the Immigration and Nationality Act (“INA”) §
212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Jeronimo appeared before an IJ
and admitted the factual allegations in the NOA but denied she was removable.
DHS then filed additional charges of inadmissibility as to Jeronimo and her two
children and alleged they were aliens present in the United States without being
admitted or paroled in violation of INA § 212(a)(6)(A)(i), 8 U.S.C. §
1182(a)(6)(A)(i). Jeronimo conceded removability at a later hearing.
Jeronimo filed an application for asylum, withholding of removal, and relief
pursuant to the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”) in December 2014; she
listed her daughters as derivative beneficiaries. In her application, Jeronimo stated
she was seeking asylum based on domestic abuse, because she had been regularly
slapped, kicked, and called bad words by Diego. She recounted the incident
described to the asylum officer.
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Jeronimo also submitted a memorandum of law in support of her claim for
asylum and withholding of removal; she argued the repeated acts of violence
perpetrated against her by Diego, in combination with the persecution she suffered
because of her ethnicity and religion, established past persecution because of a
protected ground. Jeronimo claimed persecution because of her membership in the
particular social group of “[i]ndigenous Guatemalan women perceived as the
property of and suffering domestic violence at the hands of their intimate partners,
and who are unable to safely leave the relationship.” Appl. for Relief & Mem. at
10 (Dec. 2, 2014). She argued she had established a well-founded fear of future
persecution by Diego and her community if she were to return to Guatemala. She
attached a personal declaration in support of the memorandum and several exhibits
showing members of her particular social group were routinely subject to
persecution in Guatemala.
DHS also submitted additional exhibits, including the transcript of
Jeronimo’s credible-fear interview, two articles concerning Guatemala’s first-ever
female vice president, and the Guatemala 2013 International Religious Freedom
Report from the United States Department of State. This report showed the
Guatemalan laws protect religious freedom but the constitution recognizes the
distinct legal personality of the Catholic Church and requires religious groups other
than the Catholic Church to register as legal entities to conduct business. It also
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noted there were reports of “societal abuses or discrimination based on religious
affiliation, belief, or practice.” DHS Submission of Docs. Ex. B at 1.
At the merits hearing, all documents attached to Jeronimo’s memorandum of
law were admitted. Jeronimo objected to the admission of the DHS exhibits and
claimed she had not had the opportunity to review some of them, particularly one
of the articles. DHS argued everything in the articles was substantiated by the
Country Report submitted by Jeronimo and only served to establish there was a
female vice president in Guatemala. The IJ noted the articles contained helpful
background information and no one would be prejudiced by the admission of the
evidence.
At the hearing, Jeronimo testified she was born in Guatemala in 1993; she
belongs to a Guatemalan indigenous tribe and speaks the Mam language. She is a
member of the Evangelical Church. When she was 18 years old, she began living
with Diego after she became pregnant by him. They lived in Barillas, Guatemala,
with Diego’s parents. Barillas is approximately four to five hours from Jeronimo’s
native hometown of Flor del Norte. Diego and his parents are Roman Catholic.
Her refusal to be baptized into the Catholic Church created tension among her,
Diego, and his parents. After about three years of cohabitation, Diego began
abusing Jeronimo. In one incident, Diego, apparently upset Jeronimo had borne
two daughters and no sons, grabbed her by the neck and hit her with a bottle. She
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took her two children and returned to Flor del Norte to live with her parents.
Jeronimo remained with her parents for fifteen days until Diego came to visit her.
He promised to change his ways and asked her to return to Barillas, which she did.
Jeronimo did not report this incident to the police, because the police do not
investigate domestic violence.
In a second incident, sometime in December 2013, Diego bit Jeronimo’s
cheek, held a knife to her neck, and threatened to kill her. She also did not report
this incident to the police. Jeronimo returned to Flor del Norte and stayed there for
about seven months, until she came to the United States in July 2014. She testified
the relationship was over, and she had no intention of returning to Diego.
About a month after Jeronimo left for the United States, Diego returned to
Flor del Norte and threatened to kill her if she was with another man or if she
began to work again. He made this threat to a friend in the street close to
Jeronimo’s parents’ home. Jeronimo testified she cannot remain with her parents,
because her mother suffers from diabetes, although two of her seven siblings live
with her parents. She believes living with her mother would “alter her. . . . degree
of diabetes.” Hr’g Tr. at 74-75 (Jan. 7, 2015).
The IJ found Jeronimo’s testimony credible, despite inconsistences between
her hearing testimony and her prior statements; however, she had failed to show
past persecution because of a protected ground. First, the IJ found she had not
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shown the harm she suffered was inflicted by the government or by a private actor
the government was unable or unwilling to control; she had made no attempt to
report her abuse to police. Although there were still problems in Guatemala,
attitudes were slowly changing and had changed sufficiently. The IJ also noted
Jeronimo had not shown Diego had “the ability to harm her throughout the country
of Guatemala,” because she was able to stay safely with her parents and had not
shown she could not move to another area of Guatemala to avoid harm. Oral
Decision of the IJ at 9 (Jan. 7, 2015). Second, the IJ concluded Jeronimo had not
shown she suffered harm because of a protected ground. She had failed to show an
objective basis for her fear of future persecution if she should return to Guatemala.
The IJ also denied Jeronimo’s petition for withholding of removal and for CAT
relief. Because she was not eligible for asylum, the IJ concluded it necessarily
followed she could not meet the higher burden for establishing eligibility for
withholding of removal. There was no evidence the Guatemalan government
would harm or torture her in any way or would be willfully blind to torture by a
third party.
Jeronimo appealed to the BIA. The BIA found Jeronimo had failed
meaningfully to contest the IJ’s denial of her application for protection under the
CAT; consequently, that issue was waived on appeal. The BIA acknowledged
Jeronimo’s argument DHS had conceded she had suffered harm rising to the level
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of past persecution but noted the IJ never reached that issue. The BIA also noted
the DHS comments on the record did not constitute a “formal concession of a legal
issue.” Decision of BIA at 2 n.2 (Nov. 9, 2015). The BIA agreed with the IJ
Jeronimo had failed to show a nexus between the harm she suffered and the
particular social group with which she identified. The BIA acknowledged in
Matter of A-R-C-G-, 26 I. & N. Dec. 388, 389 (BIA 2014), it had recognized,
depending on the facts in a particular case, “married women in Guatemala who are
unable to leave their relationship” could constitute a particular social group for
asylum and withholding of removal. In that case, however, DHS had conceded the
petitioner had suffered past persecution because of membership in a particular
social group; where a concession is not made, the issues of whether there was past
persecution and whether it was because of a protected ground would be decided
based on the particular facts and evidence. Even assuming Jeronimo could
demonstrate the social group identified was a cognizable social group under the
INA, the BIA found she had not established she was a member of that group, since
she twice safely had left her relationship with her abusive partner.
The BIA also concluded Jeronimo had not established the Guatemalan
government or police were unable or unwilling to protect her; while Jeronimo’s
credible testimony established a subjective fear of persecution, her fear was not
objectively reasonable. Therefore, Jeronimo had not met her burden of
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establishing asylum, and she could not meet the more stringent burden to establish
withholding of removal. Jeronimo had not raised her humanitarian asylum
argument before the IJ, so it was waived on appeal. Even if the issue had been
properly before the IJ, Jeronimo had failed to establish she would be entitled to
humanitarian asylum, because the past harm she described did not rise to the
requisite level of severity, and she had failed to establish a reasonable possibility
she would suffer other serious harm.
The BIA examined Jeronimo’s due-process claim and determined the IJ had
not acted in an arbitrary and capricious manner during her hearing. The BIA found
no evidence of bias or undue hostility by the IJ or any resulting prejudice to
Jeronimo. The BIA noted the IJ has broad discretion to accept evidence and assess
its evidentiary value and had rejected Jeronimo’s contention the IJ improperly
admitted evidence over her objection and failed adequately to weigh and consider
that evidence. Regarding her assertion the IJ erred by not requiring DHS to rebut
her well-founded fear of persecution, the BIA noted, because she had failed to
show past persecution because of a protected ground, the burden never shifted to
DHS to show changed country conditions. The BIA also addressed Jeronimo’s due
process argument of an allegedly inferior translation and found she had neither
identified any specific mistranslation nor provided any evidence her testimony was
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mistranslated or misunderstood by the IJ. Consequently, the BIA dismissed
Jeronimo’s appeal.
II. DISCUSSION
A. Claim for Asylum or Withholding of Removal
On petition for review, Jeronimo first argues the IJ and BIA erroneously
concluded (1) she was not a member of the particular social group she identified in
her application; (2) she did not have an objectively reasonable, well-founded fear
of future persecution; (3) country conditions in Guatemala had changed; (4) she
had failed to show she could not relocate to another area of Guatemala; (5) it
would not have been futile for her to report her abuser to law enforcement; and (6)
she had not demonstrated she was entitled to withholding of removal. Because the
government conceded she had suffered past persecution, Jeronimo also argues she
was entitled to the presumption of a well-founded fear of future persecution, which
the government failed to rebut.
We review only the decision of the BIA, except to the extent the BIA
expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we also will
review the IJ’s decision to that extent. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948
(11th Cir. 2010). In this case, the BIA did not expressly adopt the IJ’s decision but
agreed with the IJ’s findings on nexus and on whether the Guatemalan government
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was unwilling or unable to protect Jeronimo. Therefore, we will review both
decisions to that extent. See Al Najjar, 257 F.3d at 1284.
We review legal determinations by the BIA de novo. Zhu v. U.S. Att’y Gen.,
703 F.3d 1303, 1307 (11th Cir. 2013). Factual determinations are reviewed under
the substantial-evidence test, which requires us to view the record in the light most
favorable to the agency’s decision and draw all reasonable inferences in its favor.
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We will
affirm the decision of the BIA if, considering the record as a whole, it is supported
by reasonable, substantial, and probative evidence. Id. at 1027. In order to reverse
administrative factual findings, we must determine that the record “compels”
reversal, not merely that it supports a different conclusion. Id. We have found
BIA errors to be harmless, where the BIA also rested its ruling on an alternative
determination that was not erroneous. Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d
1311, 1314 (11th Cir. 2013).
An applicant for asylum must meet the INA definition of a refugee. INA
§ 208(b)(1), 8 U.S.C. § 1158(b)(1). The INA defines a refugee as a person “who is
unable or unwilling to return to, and is unable or unwilling to avail . . . herself of
the protection of” her home country “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.” INA § 101(a)(42)(A), 8 U.S.C.
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§ 1101(a)(42)(A). To establish eligibility for asylum, a petitioner must
demonstrate either past persecution, or a well-founded fear of future persecution,
based on a statutorily listed factor. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006). Once a petitioner demonstrates past persecution, the burden
shifts to the government to show by a preponderance of the evidence (1) there has
been a fundamental change in country conditions such that the applicant no longer
has a well-founded fear of persecution because of a protected ground, or (2) the
applicant reasonably could avoid future persecution by relocating to another part of
the applicant’s country. 8 C.F.R. § 208.13(b)(1)(i)(A)-(B); see also Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1351-52 (11th Cir. 2009).
Congress has not defined what constitutes a “particular social group” under
the INA but, in Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190 (11th Cir.
2006), we approved the BIA’s definition of the term as a group of persons who
share a common characteristic that is immutable or fundamental to its members’
individual identities or consciences. Id. at 1196-97. The BIA has concluded,
depending on the facts and evidence in a particular case, “married women in
Guatemala who are unable to leave their relationship” can constitute a cognizable,
particular social group that forms the basis for asylum or withholding of removal.
Matter of A-R-C-G-, 26 I. & N. Dec. at 389. In that case, the BIA also noted DHS
had conceded the petitioner had suffered past persecution, and the persecution was
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because of her membership in a particular social group. Id. at 395. Where
concessions are not made, the BIA stated “these issues will be decided based on
the particular facts and evidence on a case-by-case basis as addressed by the
Immigration Judge in the first instance.” Id.
Even assuming the government conceded the harm Jeronimo had suffered
rose to the level of persecution, it clearly did not concede the persecution was
because of a protected ground. The BIA was correct in noting any concession
made by DHS was “not determinative of the legal issues in this case.” Decision of
BIA at 2 n.2. Regarding the finding Jeronimo was not eligible for asylum,
substantial evidence supports the conclusion Jeronimo did not suffer past
persecution “on account of” a protected ground, because she did not belong to the
particular social group she identified: indigenous women who live with a domestic
partner and who suffer abuse and cannot leave safely from that domestic partner
relationship. The evidence shows Jeronimo was able to leave safely her domestic
relationship on at least two occasions; therefore, it cannot be said the record
compels the conclusion she had suffered past persecution because of a protected
ground. Adefemi, 386 F.3d at 1026-27. The determination that the protected
ground Jeronimo identified did not apply to her was also fatal to her ability to
demonstrate a well-founded fear of future persecution because of a protected
ground. Ruiz, 440 F.3d at 1257. Significantly, Jeronimo had failed to report the
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abuse to the police; failure to report persecution to local government authorities
generally is fatal to an asylum claim. Lopez v. U.S. Att’y Gen., 504 F.3d 1341,
1345 (11th Cir. 2007) (citing In re S-A-, 22 I. & N. Dec. 1328, 1335 (BIA 2000))
(noting, however, a failure to report would be excused, where the petitioner shows
those authorities would have been unable or unwilling to protect her).
Substantial evidence also supports the conclusion Jeronimo did not establish
she was entitled to withholding of removal. The standard for withholding of
removal is more stringent than for asylum. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1232-33 (11th Cir. 2005) (recognizing if an applicant is unable to prove
entitlement to asylum relief, she generally is precluded from qualifying for
withholding of removal). Because Jeronimo could not show her entitlement to
asylum relief, she similarly failed to demonstrate it was “more likely than not” that
she would be persecuted because of a protected ground upon returning to
Guatemala. Id. at 1232 (citation and internal quotation marks omitted).
B. Claim for Humanitarian Asylum
Jeronimo also argues the BIA erred in concluding she had not exhausted her
claim for humanitarian asylum before the IJ, and she was not eligible for
humanitarian asylum, because she had not suffered sufficiently severe harm. We
review de novo legal conclusions, including questions of subject-matter
jurisdiction. Kazemzadeh, 577 F.3d at 1350; Amaya-Artunduaga v. U.S. Att’y
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Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to consider a
claim raised in a petition for review, unless the petitioner first has exhausted her
administrative remedies. Amaya-Artunduaga, 463 F.3d at 1250. The exhaustion
doctrine requires the petitioner to raise claims before the agency to ensure the
agency had a full opportunity to consider the claims.
An applicant may qualify for asylum even in the absence of showing a well-
founded fear of future persecution if (1) “[t]he applicant has demonstrated
compelling reasons for being unwilling or unable to return to the country arising
out of the severity of the past persecution,” or (2) “[t]he applicant has established
that there is a reasonable possibility that he or she may suffer other serious harm
upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii). This provision
describes what courts refer to as “humanitarian asylum.” Mehmeti v. U.S. Att’y
Gen., 572 F.3d 1196, 1200 (11th Cir. 2009) (citation and internal quotation marks
omitted). As we noted in Mehmeti, other circuits reviewing applications for
humanitarian asylum have concluded this relief is reserved for the most
extraordinary cases. Id. at 1200-01 (citing Gonahasa v. U.S. INS, 181 F.3d 538,
544 (4th Cir. 1999) (“Eligibility for asylum based on severity of persecution alone
is reserved for the most atrocious abuse.”); Bucur v. INS, 109 F.3d 399, 405 (7th
Cir. 1997) (characterizing humanitarian asylum as being reserved for situations
such as the German Jews, the victims of the Chinese “Cultural Revolution,” and
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survivors of the Cambodian genocide (citation and internal quotation marks
omitted)); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (explaining past
persecution must have been so severe it would “so sear a person with distressing
associations with his native country that it would be inhumane to force him to
return there, even though he is in no danger of future persecution”) (citation and
internal quotation marks omitted)).
The BIA has interpreted this form of relief to require an applicant to show
“severe harm” and “long-lasting effects.” Id. (citation and internal quotation marks
omitted). The BIA must give “reasoned consideration” to a petition for relief from
removal. Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir.
2013). In doing so, the BIA must consider the issues raised and announce its
decision in terms sufficient to enable a reviewing court to perceive it had “heard
and thought and not merely reacted.” Id. (citation and internal quotation marks
omitted).
Presuming Jeronimo’s claim for humanitarian asylum was properly
exhausted before the BIA, substantial evidence supports the BIA conclusion the
harm Jeronimo described does not rise to the level of severity required to establish
eligibility for humanitarian asylum. The record does not compel the conclusion
Jeronimo suffered such “severe harm” or “atrocious abuse” in Guatemala that it
would be “inhumane to force [her] to return there.” Mehmeti, 572 F.3d at 1200
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(citations and internal quotation marks omitted). The BIA decision concerning
Jeronimo’s eligibility for humanitarian asylum should be viewed in the context of
the entire BIA decision, which fully discusses the harm Jeronimo suffered. The
record shows the BIA considered the evidence and concluded the harm was not
sufficiently severe to warrant humanitarian asylum. Therefore, the BIA satisfied
the reasoned-consideration standard. Perez-Guerrero, 717 F.3d at 1232.
C. Due Process Claims
Jeronimo additionally argues the BIA erred in concluding the IJ had not
deprived her of her constitutional right to due process by (1) admitting evidence
over her counsel’s objection, (2) creating a hostile environment, (3) failing to
consider all of the evidence of record, (4) giving too much weight to certain pieces
of evidence taken out of context and in isolation, and (5) failing to require DHS to
prove, by a preponderance of the evidence, conditions in Guatemala had changed
and Jeronimo no longer had a well-founded fear of future harm if she were to
return. We review constitutional challenges regarding removal proceedings de
novo. Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir. 2011). Aliens are
entitled to due process in removal proceedings. Id. Due process requires aliens
receive a full and fair hearing. Id. To establish a due process violation, the alien
“must show that she was deprived of liberty without due process of law and that
the purported errors caused her substantial prejudice.” Id. (citation and internal
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quotation marks omitted). To show substantial prejudice, the alien must establish
the outcome of the proceeding would have been different but for the alleged errors.
Id.
The IJ has broad discretion to accept evidence into the record and to weigh
its evidentiary value. 8 C.F.R. § 1003.10(b). While we have not defined in a
published opinion when an IJ has acted in a manner depriving an alien of her due
process rights, the Seventh Circuit has held the IJ does not violate the applicant’s
due process rights by limiting some testimony or frequently interrupting the
applicant’s presentation when it does so merely to focus the proceedings and
exclude irrelevant evidence. Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003).
The IJ does, however, violate an applicant’s right to due process where he “bar[s]
complete chunks of oral testimony that would support the applicant’s claims.” Id.
at 918. The Ninth Circuit similarly has held an applicant is denied a full and fair
hearing in violation of the Fifth Amendment where the IJ acts, not as a neutral fact-
finder, but as a partisan adjudicator seeking to intimidate the petitioner and her
counsel and “refuse[s] to let [petitioner] testify about anything that was included in
his written application.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
Jeronimo has not shown the IJ erred in admitting evidence over her
objection or she was prejudiced by the admission of evidence, because none of the
evidence DHS submitted at the merits hearing was referenced in the IJ’s oral
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decision. Jeronimo also has not shown the IJ’s actions at the merits hearing were
so egregious as to deprive her of a full and fair hearing. See Kerciku, 314 F.3d at
917-18; Colmenar, 210 F.3d at 971. Jeronimo has failed to meet her burden of
showing “substantial prejudice.” She also failed to cite any evidence or argument
she was unable to present; nor does she show how the outcome of her case would
have been different had the immigration judge conducted her hearing differently.
The IJ did not erroneously fail to shift the burden to DHS to show changed country
conditions, because Jeronimo did not show a nexus between the harm she suffered
and her membership in a particular social group; therefore, the burden never
shifted to DHS to show by a preponderance of the evidence there was a
fundamental change in country conditions or Jeronimo could not avoid persecution
by relocating within Guatemala.
PETITION DENIED.
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