Amelia Bravo-Domingo v. William P. Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0190n.06
Case No. 19-3664
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 02, 2020
AMELIA BRAVO-DOMINGO, PRICILA ) DEBORAH S. HUNT, Clerk
BRAVO-DOMINGO, and EXAIDA PEREZ- )
BRAVO, )
) ON PETITION FOR REVIEW
Petitioners,
) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
v.
) APPEALS
WILLIAM P. BARR, Attorney General,
)
Respondent. )
BEFORE: NORRIS, DONALD, and NALBANDIAN Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Petitioner Amelia Bravo-Domingo,1
along with her two children, seek an order from this Court holding that error was committed below
when the Board of Immigration Appeals affirmed the holding of an immigration judge denying
her petition for asylum, request for withholding of removal, and protection under the Convention
Against Torture. The immigration judge dismissed Amelia’s petition for asylum and withholding
of removal for failure to provide sufficient evidence that she suffered persecution or had a well-
founded fear of persecution on the account of her membership in a particular social group. The
immigration judge denied Amelia’s request for protection under the Convention Against Torture
1
We will refer to Amelia Bravo-Domingo using her first name, as there are two Petitioners with
the same surname.
Case No. 19-3664, Bravo-Domingo v. Barr
due to her failure to show that the Guatemalan government either perpetuates or acquiesces in any
human rights violations against persons similarly situated to her or her children and her failure to
present sufficient evidence that she would be unable or even attempted to relocate to another part
of Guatemala where she and her family would be free from harassment or gangs. The Board of
Immigration Appeals affirmed and adopted the rulings and reasonings of the immigration judge,
except it made no determination under the Convention Against Torture regarding Amelia’s ability
or efforts to relocate safely. Because we find that Amelia does not present sufficient evidence
tying allegations of past or future persecution to her membership in a particular social group or
demonstrating the Guatemalan government perpetuates or acquiesces to rights violation of the kind
Amelia alleges, we DENY the petition for review.
I.
Factual Background
The following facts are based on Amelia’s testimony at her hearing before an immigration
judge (“IJ”) in January 2011. Amelia was born in Culico, Guatemala, in January 1984. She has
two children and lives in Memphis, Tennessee, with her husband and other family members.
Amelia entered the United States with her two children on May 17, 2015, approximately ten years
after her husband moved here. Her father and siblings still live in a Guatemalan village known as
Las Pilas, where she also lived prior to coming to the United States. Amelia also has an uncle with
“a lot of money” named Valentine Bravo, who lives close by in that same Guatemalan “town[.]”
Admin. R. 114, 119, 147.
Amelia testified that while living in Guatemala her uncle harmed and/or threatened her and
her family. She further testified that the problems with her uncle started in 1996 and persisted
until she moved to the United States. According to Amelia, her uncle falsely accused her of
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stealing a necklace in 1996 because “he likes to have problems.” Id. at 113-14 When Amelia’s
uncle threatened her father and told him to pay for the necklace, her father complied.
Despite the payment for the necklace, problems continued. Amelia’s uncle kept
threatening her father, which included death threats. The uncle also continued to threaten Amelia
on multiple occasions. Amelia testified that she was required to cross her uncle’s land on a daily
basis to complete everyday tasks, such a go to the store, but that her uncle would tell her that she
could not cross his land because he would hit or kill her. She also testified that her father went to
the police in 1997 and filed a complaint regarding her uncle’s threats. Amelia asserts that the
police did not help her family, however, because her father did not have the money to pay the
police to listen.
In addition to verbal threats, Amelia testified that her uncle tried to run her over with his
car in 2010, while her children were with her. She avoided the collision, however, by moving over
to the side of the road. She stated her uncle told them not to walk on the road or he would kill
them. According to Amelia, she was afraid her uncle would actually kill her.
Amelia also claims that her uncle threatened her sister Claudia in 2010. Specifically, her
uncle went into Claudia’s room, despite not living at the house, and threatened to kill Claudia with
a machete. Claudia was able to escape without harm, nonetheless, because her uncle left when she
closed the door and asked him to leave. When asked why he did this, Amelia said, “because he
likes to have problems and [] he can’t find [] who to fight with.” Id. at 123. Around this same
time, but on different occasions, other threats were lodged towards Claudia by the uncle.
Further, Amelia asserts that her father continues to have problems with her uncle because
the uncle keeps threatening him over the necklace. The most recent threat to her father articulated
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occurred in 2010 and involved a weapon. The basis of the threat was the same. Amelia generally
testified that her uncle still threatens her dad and that her dad is afraid but cannot afford to leave.
Amelia additionally testified that her uncle killed her sister Flores’ husband by assaulting
him in April 2011. Although Amelia and her siblings went to the police and the police conducted
an investigation, nobody was arrested because, as she previously explained, Amelia’s family was
unable to give the police any money. This was despite Amelia telling the police that her uncle
committed the killing.
Amelia testified that she fears her uncle will harm and torture her and her children if she
returns to Guatemala, as they could be raped or killed. Amelia also claimed that she could not
move to a different part of Guatemala because she does not have money and could not borrow the
money. Given her lack of and ability to secure money, she also testified that she could not go to
the police in Guatemala. Although Amelia stated that her husband was sending money to her and
the children prior to them coming to the United States, she is not sure whether her husband would
go with her to Guatemala if she were to be removed from the United States. She testified that if
her husband stayed in the United States, he would continue to support the family from afar, but
the money would not be enough to afford land in Guatemala. Amelia also has family in another
part of Guatemala—the city of Agua Dulce—but she stated that she would not be safe there
because it was the same there as in her hometown and that her uncle would use his money to find
her.
Amelia’s sister, Flores, still lives in the same town as her uncle in Guatemala. Amelia
stated that since her uncle hurt people, does a lot of harm, and killed Flores’ husband, Flores is in
danger. Amelia has other family that also live in the same town as her uncle.
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The IJ also discussed with Amelia three letters submitted by her family. When asked why
none of the letters mentioned any threats from Amelia’s uncle or additional incidents after 2011,
Amelia said that even though the letters do not mention that, it was true; her family members just
felt nervous. The IJ also noted that, according to the letters, Amelia made the decision to come to
the United States because of gangs and extortion, which Amelia confirmed while also stating that
she moved here because of her uncle. The IJ also asked Amelia whether her uncle ever physically
harmed her. Amelia testified that when she would bring back wood or water and cross her uncle’s
property, he would threaten her, telling her he was going to kill her, and would push her. She also
reiterated that she or family members went to the police three times between 1996 and the present
but that the police paid no attention to them.
Towards the end of the hearing, the IJ asked Amelia why her uncle threatens and targets
her, to which she, again, responded that ever since “he said that I . . . stole[] his chain necklace . .
. he kept doing it.” Id. at 147. She also restated that her uncle threatens her other sibling too,
reasoning that “he likes to have problems[,]” “he can’t stand seeing . . . any of [the] family”
members, and he hates them. Id. at 148. All this, according to Amelia’s supposition, is over the
same alleged necklace thievery; her uncle still holds that against them. According to Amelia, prior
to the 1996 allegation of the stolen necklace, her uncle was “more calm[.]” Id. at 149.
Procedural History
On May 12, 2015, the United States Department of Homeland Security issued a notice to
appear, charging Amelia with being an alien in the United States without being admitted or
paroled. On April 20, 2016, Amelia filed her application for asylum and withholding of removal
under section 241(b)(3) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101–1537,
and for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman
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or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 1208.16(c). The IJ held a merits
hearing on January 11, 2018. Only Amelia testified at the hearing. That same day, the IJ issued
both an oral and a written decision denying all relief. The IJ found that, although Amelia’s
testimony concerning core issues was credible, she did not provide sufficient evidence that she
suffered past persecution or has well-founded fears of future persecution on account of any valid
ground. Thus, the IJ denied the application for asylum and withholding of removal without
determining whether Amelia’s proposed social group is cognizable or that she failed to establish
past persecution or a well-founded fear of future persecution.
The IJ denied relief under CAT based on Amelia’s failure to provide sufficient evidence
that she was tortured, or more likely than not would be tortured if removed to Guatemala. More
specifically, the IJ reasoned that the actions of the alleged perpetrators in this action were
committed by private individuals and not government actors (i.e., gang members and Amelia’s
uncle), that the police’s failure or inability to act on Amelia’s complaints are not sufficient to meet
her evidentiary burden, and that the evidence does not show that the Guatemalan government either
perpetuated or acquiesced in any human rights violations against persons similarly situated to
Amelia or her children. The IJ also noted Amelia has family members living in Guatemala that
are not presently harassed by her uncle and stated there is insufficient evidence that Amelia would
be unable or ever attempted to relocate to another part of Guatemala where she and her family
would be free from harassment or gangs.
Amelia appealed but the Board of Immigration Appeals (“BIA”) affirmed the IJ’s ruling
and dismissed Amelia’s claims for asylum, withholding of removal, and protection under the CAT
on July 3, 2019. Regarding her requests for asylum and withholding of removal, the BIA adopted
the IJ’s conclusion and reasoning that Amelia had not established a nexus between her alleged
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persecution in Guatemala and one of the five protected grounds under the INA. As to her request
under the CAT, the BIA found that although Amelia did not meaningfully challenge the IJ’s
decision regarding the CAT on appeal, the record evidence did “not support the conclusion that it
is more likely than not that the Guatemalan government would torture [Amelia], acquiesce [to her
torture], or be willfully blind to her torture” were she to return there, as required for protection
under the CAT. Admin. R. 8. Amelia timely appealed.
II.
“Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion, rather
than summarily affirming the IJ’s decision, we review the BIA’s decision as the final agency
determination.” Gonzalez-De Leon v. Barr, 932 F.3d 489, 492 (6th Cir. 2019) (quoting Al-
Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009)). To the extent that the BIA adopts the IJ’s
reasoning, however, we additionally review the IJ’s decision. Id.
Although we review questions of law de novo, “we give deference to the BIA’s
interpretation of the [INA] and accompanying regulations.” Bi Qing Zheng v. Lynch, 819 F.3d
287, 293 (6th Cir. 2016). We review factual findings, “including those relevant to ‘credibility
determinations, denial of asylum applications, withholding of removal, and the CAT,’” under the
deferential substantial-evidence test. Id. (quoting Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th
Cir. 2008)). Under this standard, we will “uphold a BIA determination as long as it is ‘supported
by reasonable, substantial, and probative evidence on the record considered as a whole.’” Parlak
v. Holder, 578 F.3d 457, 462 (6th Cir. 2009) (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th
Cir. 2004)). “[U]nless any reasonable adjudicator would be compelled to conclude to the
contrary,” the BIA’s “administrative findings of fact are conclusive[.]” 8 U.S.C. § 1252 (b)(4)(B).
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III.
We hold that the BIA did not err in finding that Amelia fails to meet the requirements for
asylum, withholding of removal, or protection under the CAT. In challenging the determinations
below, Amelia makes the following arguments: the BIA and IJ violated her Fifth Amendment Due
Process rights by failing to consider all of the factors present, as a whole, establishing her eligibility
for the relief requested, as (1) it was error to find that the harm she suffered is not severe enough
to rise to the requiste level of past persecution; (2) it was error to find that she did not have an
objectively reasonable fear of future persecution based on her membership in a particular social
group; and (3) it was error to find that she is able to relocate to a safe haven in another part of
Guatemala.
A.
“To establish eligibility for asylum, an applicant must establish [s]he is a ‘refugee’ within
the meaning of the statute.” Lynch, 819 F.3d at 294 (quoting Lin v. Holder, 565 F.3d 971, 976
(6th Cir. 2009)); see Harmon v. Holder, 758 F.3d 728, 735-37 (6th Cir. 2014). The INA generally
defines “refugee” as any person “who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, [her] country [of nationality] 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). To qualify for asylum, a
person must show that one of the aforementioned protected grounds “was or will be at least one
central reason for” their persecution. 8 U.S.C. § 1158(b)(1)(B)(i). To make this showing, the
person “must produce convincing evidence of a causal connection; that is, convincing evidence
that the harm was premised on a statutorily protected ground” between the particular social group
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and the harm. Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010) (quoting Amouri
v. Holder, 572 F.3d 29, 33 (1st Cir. 2009)).
Upon review, we cannot conclude that the BIA erred by holding that Amelia’s claim for
asylum fails on the nexus requirment—that is, we agree Amelia failed to sufficiently establish that
she and her family suffered or would suffer the mistreatment alleged “on account of” her
membership in the proposed social group. As an initial matter, the BIA adopted the IJ’s factual
finding that Amelia’s uncle targeted her because of a belief she stole a necklace from him and that
he harbored resentment over that belief, not because of her membership in her family. This finding
was supported by reasonable, substantial, and probative evidence on the record considered as a
whole, as Amelia repeatedly testified that her uncle’s disposition and actions towards her and her
family are rooted in this belief. With that, we cannot find that Amelia’s uncle threatened and/or
harmed Amelia because of her membership in a protected social group. Zoarab v. Mukasey, 524
F.3d 777, 781 (6th Cir. 2008) (explaining that persecution because of a personal dispute is not
persecution on account of protected ground); Matter of M-E-V-G-, 26 I&N Dec. 227, 235 (BIA
2014) (“[A]sylum and refugee laws do not protect people from general conditions of strife, such
as crime and other societal afflictions.”); Matter of A-B-, 27 I&N Dec. 316, 337 (A.G. 2018)
(“[P]rivate criminals are motivated more often by greed or vendettas than by an intent to ‘overcome
[the protected] characteristic of the victim.’” (citing Matter of Kasinga, 21 I&N Dec. 357, 365
(BIA 1996))). Although Amelia argues that her father’s payment to her uncle for the necklace
reveals that her family membership motivated her uncle’s behavior, this contention does account
for Amelia’s testimony that her uncle started threatening and/or harming her the same year he
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accused her of stealing her necklace and continues such harassment/harm to this day because of
that incident and because he “likes problems.”2
B.
For purposes of qualifying for withholding of removal, an applicant “must show ‘that it is
more likely than not that . . . she would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion upon removal.’” Bonilla-Morales,
607 F.3d at 1138 (quoting 8 C.F.R. § 1208.16(b)(2)). Notably, an applicant that fails to satsify the
burden of proof for asylum also fails to satisfy the heightened burden for witholding of removal.
Id. at 1138-39. Given that Amelia does not meet the nexus requirment for purposes of asylum, she
cannot meet the heightened requirement of showing that she would more likely than not be
persecuted if she went back to Guatemala “on acount of” her membership in a particular social
group.
C.
“To qualify for CAT relief, an applicant must establish that it is ‘more likely than not’ that
[s]he would be tortured if deported to the country of removal.” Lynch, 819 F.3d at 294 (quoting
Zhao v. Holder, 569 F.3d 238, 241 (6th Cir. 2009)). Torture, however manifested, “must entail
the intentional infliction of severe mental or physical pain upon an individual by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an
official capacity.” Id. at 294-95 (quoting Alhaj v. Holder, 576 F.3d 533, 539 (6th Cir. 2009)).
We do not find error in the BIA’s determination that Amelia failed to demonstrate that she
more likely than not will be tortured by, or with its acquiesence of, the Guatemalan government if
2
To the extent Amelia sought protection from gangs as one of her bases here, and rulings were
made below on that issue, Amelia does not lodge any related contention here.
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she is removed. As seen above, the record consists of proof that Amelia fears threats and/or harm
from her uncle and gangs. As found by the IJ, however, these are private actors and not
government actors. Although Amelia testified that the police continually fail to assist her related
to these matters and she provided reports stating that the abuse of women and children are
commonly committed with impunity in Guatemala, the police’s failure or inability to protect
citizens, alone, does not show acquiescence. Torres v. Sessions, 728 F. App’x 584, 589 (6th Cir.
2018) (“[T]he inability of a government to control the alleged perpetrators of torture or
successfully eliminate the torture is not alone conclusive of that government’s acquiescence. And
a fear of crime in general is insufficient ‘to establish eligibility for withholding of removal under
the [Convention Against Torture].’” (citations omitted) (quoting Palma-Campos v. Holder, 606 F.
App’x 284, 287 (6th Cir. 2015)); see Ventura-Reyes v. Lynch, 797 F.3d 348, 363 (6th Cir. 2015).
Moreover, no other evidence in the record supports the Amelia’s contention that it is more likely
than not that the Guatemalan government perpetuates or acquiesces in human rights violations
against persons similarly situated to Amelia and her children. As found below, these are private
individuals, not government actors.
D.
This Court can consider due process claims asserting a correctable procedural error
stemming from the determinations of an IJ and the BIA, so long as said claims are “properly
presented to the BIA and considered on their merits.” Tomaszczuk v. Whitaker, 909 F.3d 159, 167
(6th Cir. 2018) (quoting Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)). Notably,
“[c]laims alleging errors related to the consideration of evidence . . . fall within the category of
correctable procedural errors and are thus subject to the statutory exhaustion requirement.” Id.
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We find that Amelia’s due process claim based on a failure of the IJ and BIA to consider
“all factors present” and “all of the evidence presented in totality[,]” (Pet.’r’s Br. 38-39), fails
because she did not satisfy the exhaustion requirement. Amelia neither raised her due process
concern in her notice of appeal to the BIA nor in her supporting brief.
IV.
Because Amelia does not present sufficient evidence tying her allegations of past or future
persecution to her membership in a particular social group or demonstrate that the Guatemalan
government perpetuates or acquiesces to human rights violation of the kind Amelia alleges, she is
not entitled to the relief she seeks.
Accordingly, we deny the Petition.
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