NOT RECOMMENDED FOR PUBLICATION File Name: 19a0315n.06
No. 18-3559
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ANGELICA YOLANDA CALEL PEREIRA; ) Jun 20, 2019 A.A.C.P., Minor Child, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) ) )
BEFORE: BATCHELDER, SUTTON, and DONALD, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Angelica Pereira and her minor daughter
seek to avoid removal from the United States. Pereira applied for asylum, withholding of removal,
and protection under the Convention Against Torture. The Immigration Judge denied her
application on all of these grounds, and the Board of Immigration Appeals dismissed her appeal.
She now petitions this court to review her claim. She argues that the Immigration Judge and Board
of Immigration Appeals wrongly denied her application for asylum and her claim under the
Convention Against Torture using erroneous legal standards, and that the Immigration Judge’s
conclusion that Pereira failed to show she had a well-founded fear of future persecution in her
native Guatemala was not supported by substantial evidence. No. 18-3559, Pereira, et al v. Barr
Pereira’s application was evaluated under the proper legal standards in both instances, and
we find that the record contains sufficient evidence to support the conclusion reached by the IJ and
affirmed by the BIA. We DENY Pereira’s petition for review.
I.
Petitioner Angelica Yolanda Calel Pereira (“Pereira”) and her seven-year-old daughter,
A.A.C.P., fled their home in Guatemala in 2015 and entered the United States in December of that
year. They were detained, admitted without authorization, and conceded their removability. Once
here, Pereira applied (both for herself and A.A.C.P.) for asylum, withholding of removal, and for
relief under the U.N. Convention Against Torture (“CAT”).
There is no dispute that Pereira experienced serious violence and hardship at the hands of
local gangs in her native Guatemala. A gang member killed her mother several years ago, though
Pereira remained in Guatemala for six years after that. Moreover, gang members repeatedly
subjected Pereira to intimidation and harassment, both before and after her mother’s death.
The Immigration Judge (“IJ”) denied Pereira’s applications for asylum, withholding of
removal, and CAT protection. Pereira timely appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). The BIA dismissed Pereira’s appeal in its entirety. Pereira
properly petitioned this court for review pursuant to 8 U.S.C. §§ 1252(a), (b)(2).
II.
Under 8 U.S.C. § 1252(a)(2)(D), our review of Pereira’s claim is limited to “constitutional
claims or questions of law” raised by the petitioner. We review the BIA’s legal determinations de
novo, Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004), and its factual findings for substantial
evidence, Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). While our review focuses on the
BIA’s decision as a final agency determination, Shan Dong Lin v. Holder, 454 F. App’x 472, 474
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(6th Cir. 2012), to the extent that the BIA “adopts the IJ’s reasoning, the Court reviews the IJ’s
decision,” Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007).
A.
Pereira petitions for review of the BIA decision to deny her application for asylum. That
application has two components. “First, the Board determines whether an asylum-seeker is a
‘refugee’ and second, it determines whether the applicant’s circumstance ‘merits a favorable
exercise of discretion by the Attorney General.’” Nifadev v. Holder, 577 F. App’x 481, 485 (6th
Cir. 2014) (quoting Perkovic v. I.N.S., 33 F.3d 615, 620 (6th Cir. 1994)). Congress defined
“refugee” in this context as “any person who is outside [his or her] country
of . . . nationality . . . and who is unable or unwilling to return to . . . that 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.” 8 U.S.C. § 1101(a)(42)(A).
The IJ denied Pereira’s asylum claim because she failed to “establish[] that [her]
persecution occurred or will occur on account of a protected ground.” The BIA, in turn, dismissed
Pereira’s appeal because it was “not persuaded that the Immigration Judge clearly erred in finding
that the respondent did not establish that a protected ground was at least one central reason for her
persecution or fear of future persecution.”
Pereira appeals these decisions on two grounds: first, that both the BIA and IJ applied the
wrong standard to her claim that she suffered persecution on account of her membership in a
protected class; and second, that the IJ found, without substantial evidence, that Pereira does not
have a well-founded fear of future persecution. We address each argument in turn.
Erroneous Legal Standard. The legal standard that should have been applied by the IJ and
BIA, according to Pereira, is whether she had shown that her membership in a protected class “was
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or will be at least one central reason” for her persecution or fear of persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). Pereira argues that the IJ rejected her claim because she failed to show that
her protected status was the only central reason for her persecution.
Pereira mischaracterizes the IJ’s opinion. The IJ’s analysis of this issue plainly finds that
Pereira “fails to show that she was persecuted because of her membership in this protected group.”
The opinion repeatedly explains that:
• “the record does not support that the gang’s central reasons for targeting of [Pereira] was because of her indigenous background”; • “fear of general conditions of gang violence is insufficient to establish eligibility for asylum”; and • “[Pereira]’s claim seems to draw upon just one manifestation of a larger gang problem that Guatemala faces.”
But the IJ’s opinion does contain a moment of ambiguity, on which Pereira’s appeal focuses. The
IJ states that “[Pereira’s] testimony indicates that it is more likely that [she] was a target of
generalized crime and violence and because she is an indigenous female.” The sentence is
awkward. The IJ found either that the crime and violence Pereira suffered was “generalized” or
that she suffered crime and violence “because she is an indigenous female.” Suffering crime and
violence because of one’s protected status is the opposite of suffering from “general conditions of
gang violence.” The reading of the sentence that Pereira urges also renders the entire passage
incoherent; the conclusion that Pereira was a target of crime and violence because she is an
indigenous female directly contradicts what the IJ repeatedly found immediately preceding that
sentence. The entire context of the passage leaves us with no doubt that “and” is simply a
transcription error and that the IJ intended to write “than.” Meaning, that it is more likely that
Pereira was a target of generalized crime and violence, than because she is an indigenous female.
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Two Sixth Circuit decisions provide some guidance for what to do in a situation of potential
ambiguity in an IJ’s opinion. In Diallo v. Gonzales, 241 F. App’x 312 (6th Cir. 2007), an IJ
mistakenly conflated the subjective and objective components of the credible fear analysis.
We “suspect[ed] that the IJ may have simply misspoken during the dictation of his decision, and
that he was actually analyzing whether Mr. Diallo’s fear was ‘objectively reasonable,’ which is
the proper inquiry under the objective prong.” Id. at 315. In that case, we remanded, though it is
worth noting that we had additional cause to remand in that case because the IJ had given short
shrift to Diallo’s claim of past persecution by failing to explain why Diallo’s prior imprisonment
did not qualify as past persecution. Id. at 316.
In Soto-Murillo v. Lynch, 643 F. App’x 504, 507 (6th Cir. 2016), on the other hand, the IJ
made a factual error by saying that Soto-Murillo first came to the United States in 2010, when in
fact he had first entered the United States in 2003. Looking to the preceding paragraphs in the
IJ’s opinion, it was clear to the court that the IJ was aware of the correct date and had merely
committed a typographical error. Id. The Soto-Murillo court distinguished its facts from those in
Diallo, explaining that the typographical error did not render the court incapable of determining
whether the IJ applied the correct legal standard. Id. at 507. Per Soto-Murillo, what matters is
whether a linguistic foible in the IJ’s opinion prevents us from determining if the correct legal
standard was applied. It does not. We, like the BIA, can determine from the IJ’s opinion that the
IJ rejected Pereira’s claim under the proper standard, namely that her membership in a protected
social group was not at least one of the central reasons for the harm Pereira experienced or fears
she will experience.
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Substantial Evidence. Pereira also contends that her application for asylum was wrongly
dismissed by the BIA because the IJ lacked substantial evidence when it found that Pereira failed
to show that she “has a well-founded fear of future persecution.” 8 C.F.R. § 208.13(b).
The BIA concluded that the IJ did not clearly err “in finding that [Pereira] did not establish
that a protected ground was at least one central reason for her persecution or fear of future
persecution,” but instead “that the respondent was the target of generalized crime and violence.”
Reviewing a BIA determination for substantial evidence, we may reverse only if the
evidence in the record “compels” a “contrary conclusion.” Gilaj v. Gonzalez, 408 F.3d 275, 283
(6th Cir. 2005) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). We find that the record
does not “compel” Pereira’s desired conclusion and therefore decline to disturb the BIA’s finding.1
The IJ’s analysis of Pereira’s claim of fear of future persecution focused on whether she is
likely to be subject to any violence. This is also how Pereira frames the question on appeal—
whether substantial evidence supports “the IJ’s finding that [Pereira] can safely and reasonably
relocate to Guatemala.” That is not the relevant inquiry. The question is whether Pereira has a
well-founded fear of future persecution on account of a protected ground. 8 C.F.R.
§ 1208.13(b)(2)(i). The record indicates that Pereira may face continued threats and violence upon
return to Guatemala. But so long as those threats are not based on a protected status, they do not
support her claim for asylum. Vakeesan v. Holder, 343 F. App’x 117, 127 (6th Cir. 2009) (“[B]y
finding that Vakeesan’s evidence demonstrates only ‘generalized civil strife’ in Sri Lanka resulting
1 In fact, the IJ erred in Pereira’s favor by applying too generous a standard to Pereira’s claim. The IJ concluded that Pereira was entitled to a presumption of a credible fear of future persecution because she had experienced past persecution. The BIA provided the following correction: [T]he Immigration Judge’s finding of past persecution, based on the requisite level of harm alone but not on account of a protected ground, was an erroneous conclusion that inured to the benefit of [Pereira]. For past persecution to be established, the harm suffered must be on account of a protected ground. [Pereira] should not have been given the benefit of a presumption of future persecution.
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from the civil war, the [Board] necessarily found that Vakeesan’s evidence does not demonstrate
a pattern or practice of persecution of innocent Tamils in Sri Lanka.”). The question here is
whether the record “compels” us to find that Pereira has a well-founded fear that she will suffer
future persecution on a protected ground upon her return to Guatemala. We find that it does not.
First, much of the evidence Pereira cites in support of her argument concerns her ongoing
fears stemming from her past experience of violence at the hands of gangs in Guatemala. But the
IJ and the BIA both found that the violence Pereira experienced was not on account of a protected
ground, but instead amounted to generalized gang violence. We find that substantial evidence
supports that determination. The IJ relied on Pereira’s testimony in concluding that Pereira was
targeted, not because of her membership in a protected social group, but rather because the gang
members “wanted to touch her inappropriately and humiliate her, and . . . because they wanted her
jewelry.” Pereira argues that her testimony also indicated that she was targeted because of her
indigenous status. But Pereira does not dispute the testimony that the IJ relied on. A factual
finding by the IJ, affirmed by the BIA, that is based on testimony that cuts in both directions, is
not a finding that we can disturb under the substantial-evidence standard. Because we find that
substantial evidence supports the IJ’s conclusion that Pereira’s past persecution was not on the
basis of a protected ground, her use of that past violence as evidence of a well-founded fear of
future persecution is not persuasive.
Second, Pereira argues that the IJ selectively cited a 2015 Human Rights Report prepared
by the State Department concerning Guatemala, for the fact that “the Office of the Ombudsman
for Indigenous Women coordinated and promoted action by government institutions and NGOs to
prevent violence and discrimination against indigenous women,” whereas this statement neglected
to mention that the Report also says that the Office of the Ombudsman “lacked the human
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resources and logistical capacity to perform its functions on a national level.” But the IJ
specifically acknowledged that “a lack of resources limit[s] the Guatemalan government’s ability
to reach all areas.” The IJ did not cite the Report selectively.
Third, Pereira argues that the IJ did not give proper weight to the testimony in the record
indicating that she will face violence if she returns to Guatemala. The testimony Pereira cites does
not compel the conclusion that she has a well-founded fear of future persecution. According to
Jeremias Galica, Pereira’s former brother-in-law, for instance, Pereira would face gang violence
regardless of where she moved in Guatemala because “she stands out as indigenous due to her
short height and marked indigenous features.” But the fact that Pereira is indigenous—like 44%
of the Guatemalan population, according to the 2015 State Department Report—begs the question
of whether she would suffer persecution on that basis. The testimony of Moises Marroquin,
Pereira’s former father-in-law, rests on the violence Pereira suffered in the past, which the IJ
reasonably determined was not centrally motivated by Pereira’s belonging to any protected social
group. Lastly, the expert testimony of Linda Green is similarly based on the premise that the past
violence Pereira suffered at the hands of the gangs was on account of her status as an indigenous
female who is the head of her household. As with Moises Marroquin, the IJ reasonably rejected
that notion when it found that the violence Pereira suffered was generalized gang violence.2
2 Pereira argues, based on the same “nexus” argument and substantial evidence challenge, that the BIA and IJ erroneously held that she was not entitled to withholding of removal. Having rejected those arguments above, we reject her withholding of removal claim for the same reasons. See Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (“Because the lesser standard for establishing asylum eludes [the petitioner], we conclude that she cannot meet the more stringent requirements for withholding of removal.”). Pereira also claims that the BIA failed to address her argument that the IJ’s conclusion regarding her well-founded fear of future persecution was not supported by substantial evidence and therefore the panel “should vacate the BIA’s decision and remand for further consideration.” But the BIA simply declined to address Pereira’s alternate bases for relief once it had found that the IJ did not clearly err in finding that Pereira had failed to show that “a protected ground was at least one central reason for her persecution or fear of future persecution.” Because we affirm the BIA’s decision in that respect, no remand or reconsideration is necessary.
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B.
To obtain relief under the CAT, Pereira bears the burden of showing that “it is more likely
than not that . . . she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). Pereira must show that she would be tortured with the “consent or acquiescence
of a public official.” 8 C.F.R. § 208.18(a)(1). Acquiescence by a public official includes instances
of “willful blindness.” Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). Pereira claims that
the BIA and the IJ failed to apply the “willful blindness” standard to her CAT claim, but instead
required her to show “that the Guatemalan government had played or would play a direct role in
her torture.”
In fact, the IJ’s opinion quoted Amir, 467 F.3d at 927, and explicitly articulated the willful-
blindness standard, explaining that “[a]cquiescence includes the ‘willful blindness of the public
official to the activity,’” while noting that “[a] government’s inability to control private parties
does not equate to willful blindness.” See Ali v. Reno, 237 F.3d 591, 597-98 (6th Cir. 2001)). And
the IJ found facts that were inconsistent with willful blindness, namely that “the country reports
demonstrate that the government of Guatemala has committed resources to fight against the
violence that plagues the country and more specifically to help indigenous women.”
Pereira’s complaint amounts to the fact that the IJ did not specifically recite the willful
blindness standard while discussing the facts of her case. To be sure, Pereira is not wrong that the
IJ could have used more precise language in that section. But the fact that the IJ both articulated
the correct standard and then explained its decision in manner consistent with that standard assures
us that it did not necessarily evaluate her claim under the wrong standard.
III.
We DENY the petition for review.
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BERNICE BOUIE DONALD, Circuit Judge, dissenting in part. I concur as to the
majority’s analysis of Pereira’s asylum claim. However, because I believe the record establishes
clearly that neither the IJ nor the BIA applied the willful blindness standard to Pereira’s CAT
claim, I respectfully dissent with respect to this issue.
We have held that acquiescence under the CAT analysis does not require that the
government itself be responsible for the torture, nor does it require that the government willfully
accept torturous activities by private citizens. See Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir.
2006) (rejecting the willful acceptance standard); see also Grijalva v. Gonzales, 212 F. App’x 541,
550–51 (6th Cir. 2007) (observing that the government need not be responsible for the persecution
under the CAT analysis). Instead, we have repeatedly emphasized that the government’s “willful
blindness” to torturous acts is all that is needed to establish acquiescence under the CAT analysis.
See id. at 551–52 (recognizing that “‘willful blindness’ falls within the definition of
‘acquiescence’”); see also Nerghes v. Mukasey, 274 F. App’x 417, 424 (6th Cir. 2008). Although
the specific words “willful blindness” need not be mechanically recited in every case, reference to
“the erroneous ‘willful acceptance’ standard” could be indicative of the wrong legal standard.
Nerghes, 274 F. App’x at 425.
The majority, recognizing that “Pereira is not wrong that the IJ could have used more
precise language,” concludes that the IJ did not err because it “explicitly articulated the willful
blindness standard.” Maj. Op. at 9. But articulating the correct legal standard and applying it are
vastly different. The record establishes that the IJ applied the wrong standard. After finding
Pereira’s testimony credible that the Guatemalan government refused to protect Indigenous women
from gang violence, the IJ stated Pereira “ha[d] not shown that the Guatemalan government will
seek to torture her specifically, or will willfully accept the torturous conduct of private actors.”
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The IJ’s explicit use of the words “willful[] accept[ance]” signals that it applied the wrong standard
to Pereira’s CAT claim. See Nerghes, 274 F. App’x at 425. However, the IJ did not stop there.
Rather, the IJ went further: “[Pereira] presented no evidence that she has ever been arrested,
detained, or abused by Guatemalan officials, and she did not allege that she would be harmed by
any Guatemalan officials in the future.” The IJ’s explicit mention of willful acceptance, in
conjunction with its recurrent references to Pereira’s failure to show that she would suffer harm at
the hand of Guatemalan officials, is “patently inconsistent with the willful blindness standard.”
Nerghes, 274 F. App’x at 424 (citation omitted).
The majority further notes that because the IJ “found facts that were inconsistent with
willful blindness, namely that ‘the country reports demonstrate that the government of Guatemala
has committed resources to fight against the violence that plagues the country and specifically to
help indigenous women,’” the IJ necessarily applied the correct legal standard. Maj. Op. at 10. I
disagree. The IJ’s single reference to a fact that could be relevant to an application of willful
blindness does little to offset its clear reference to, and unequivocal application of, an erroneous
legal standard that permeates its opinion.
The BIA seemingly acknowledged the IJ’s misapplication of the CAT standard, noting that
“irrespective of whether [the IJ] applied the correct willful blindness standard, the [IJ] did not
clearly err.” The BIA, however, compounded the IJ’s error by applying its own erroneous legal
standard to Pereira’s CAT claim. According to the BIA:
the Immigration Judge did not clearly err in finding insufficient evidence that the Guatemalan government would seek to torture [Pereira] since there was no evidence of past torture[.]
Although, like the IJ, the BIA also referenced evidence that the Guatemalan government has
“committed resources to fight against violence against Indigenous woman,” it did so in support of
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its conclusion that there was “insufficient evidence that the Guatemalan government would seek
to torture [Pereira]”—a requirement that we have repeatedly rejected.
Because “BIA review under an incorrect standard of review implicates [Pereira’s] due
process rights,” I believe we must remand this case to the BIA to consider Pereira’s CAT claim
under the proper willful blindness standard. Tran v. Gonzales, 447 F.3d 937, 944 (6th Cir. 2006);
see also Grijalva, 212 F. App’x at 551–52 (vacating and remanding a BIA decision that failed to
consider whether officials were “willful[ly] blind[]” to torture by private actors). I dissent.
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