NOT RECOMMENDED FOR PUBLICATION File Name: 20a0432n.06
Case No. 19-3829
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jul 24, 2020 ERASMO MATEO-VASQUEZ, et al., ) DEBORAH S. HUNT, Clerk ) Petitioners, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. )
BEFORE: GIBBONS, LARSEN, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Erasmo Mateo-Vasquez, Maira Mateo-Vasquez, two
minor children, and Honoria Vasquez-Perez (the Petitioners), all native citizens of Guatemala,
challenge the Board of Immigration Appeals’ (BIA) decision that they are not eligible for asylum,
withholding of removal, or protection under the Convention Against Torture (CAT). They rest
these claims on fears of gang violence if they return to Guatemala. But securing asylum under the
Immigration and Nationality Act (INA) requires proof that the Petitioners face persecution
stemming from membership in a protected social group. And the Petitioners present no evidence
suggesting that their family status motivated the alleged persecution. We also find that the
Petitioners have neither established that they will face torture upon returning to Guatemala nor
shown that the Guatemalan government is unable or unwilling to protect them from future gang
violence. So we DENY the petition for review. Case No. 19-3829, Mateo-Vasquez v. Barr
I.
The Petitioners are a mother and her four children, all native Guatemalan citizens, who left
their home country after an unnamed local gang tormented them. Erasmo Mateo-Vasquez first
encountered the group in 2013 when he was eighteen years old. A handful of men belonging to an
unspecified gang approached him with an offer to sell drugs for them and to participate in other
organized criminal activities. Erasmo believed that the gang targeted him because he lacked
financial resources. When Erasmo declined the offer, the men attacked him. Erasmo then told his
parents, who filed a police report. Sometime later, gang members again approached Erasmo and
when he fled, the men proclaimed that he was “not free.” (AR 203.) These refusals led to escalating
harassment and abuse. First, the gang beat Erasmo and broke his nose. Then they started orally
threatening Erasmo at his home, yelling for him to come out. Following that, Erasmo began
receiving threatening phone calls as part of the gang’s recruitment efforts. In 2014, Erasmo fled
Guatemala for the United States after enduring physical and emotional abuse from the gang. These
events left Erasmo so distraught that he threatened to commit suicide if returned to Guatemala. He
now believes that the gang would track down and kill him should he relocate to Guatemala.
Erasmo was not the only member of his family that the gang targeted. Maira Mateo-
Vasquez, Erasmo’s sister, caught the gang’s attention in September 2013 when she followed
Erasmo to a bar where she overheard gang members threatening him. Sensing Erasmo faced a
dangerous situation, Maira tried to intervene. The gang at first attacked her, but then one member
remarked that she could be valuable as a prostitute. After that, the gang members let the siblings
leave the bar but warned against the family relocating to escape the gang’s reach. In March 2014,
Maira had another incident with the gang. After Erasmo went missing, Maira searched for him at
the location where the 2013 confrontation occurred. Again, gang members approached Maira and
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proclaimed that she could be a profitable prostitute for them. Despite verbal threats, the gang let
Maira leave the bar unharmed. When she returned home, she discovered that her brother had come
back after suffering another physical assault from the gang. On another occasion, a female gang
member, Jesi Perez, attacked Maira. Jesi broke Maira’s nose and arm because Maira rebuffed her
recruitment efforts. Maira claims that she filed two police reports about Erasmo’s interactions with
the gang and that local officials failed to investigate the case. She testified that officers told her
they could not act unless they had witnessed the criminal activity. Even so, Maira filed a police
report about her incident with Jesi, which led to a court-ordered fine and protective order. Maira
shared Erasmo’s fear that the gang would kill her if she did not join its criminal activity. So she
fled Guatemala to the United States in June 2014.
During these events, Honoria Vasquez-Perez, Erasmo and Maira’s mother, also fell victim
to the gang’s harassment. Like Maira, she filed police reports about Erasmo’s abuse from the gang
and helped rescue Erasmo when he went missing. But the police did not investigate Honoria’s
reports because they lacked concrete proof. Then the harassment shifted to Honoria. Gang
members would often call Honoria’s home asking about Erasmo and Maira’s whereabouts,
threatening Honoria with vague consequences if she did not turn over her children. One time in
2013 or 2014, a gang member came to Honoria’s home looking for Erasmo and Maira. In 2016,
gang members surrounded the house and pelted it with stones. Still, Honoria did not relent to the
gang’s pressure. Instead, she too fled Guatemala for the United States in 2016 with her two minor
children.
In sum, the Petitioners left Guatemala for the United States to avoid further conflict with
the unnamed gang. Erasmo remained in custody for approximately a month after he entered the
United States, and immigration officers interviewed him before stating he would be returned to
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Guatemala. The Department of Homeland Security (DHS) issued Notices to Appear to the
Petitioners, charging them as subject to removal for unlawfully entering and residing in the United
States. The Petitioners responded by filing an application for asylum, a petition for withholding of
removal, and a motion for relief under the CAT. After hearing testimony about the events described
above, an Immigration Judge (IJ) ruled that the Petitioners offered inconsistent testimony and only
found Honoria’s testimony credible. Reasoning that the Petitioners could not show that the gang’s
hostility was motivated by the Petitioners’ membership in a protected class, the IJ held that the
Petitioners did not suffer from persecution. The IJ further concluded that the Petitioners’ did not
present evidence showing (1) that relocation in another part of Guatemala would fail to protect the
Petitioners from the gang, or (2) that the Guatemalan government consented or acquiesced to the
gang’s behavior. So the IJ found against the Petitioners on all claims, and issued an “alternate
finding that even if credible” the Petitioners did not show persecution motivated by their belonging
in a protected social group. (AR 150, 157.) The Petitioners appealed this decision, but the BIA
rejected the Petitioners’ claims.
Agreeing with the IJ, the BIA assumed the Petitioners’ credibility and ruled on alternate
grounds. It concluded that the Petitioners neither showed that their membership in a protected class
motivated the gang’s hostility nor established that the Guatemalan government was unwilling or
unable to control gang activity. So it found no error in the IJ’s factfinding and denied the
Petitioners’ appeal. This petition for review followed the BIA’s decision.
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-
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Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009)). “To the extent that the BIA has adopted
the IJ’s reasoning, however, we also review the IJ’s decision.” Id. This Circuit reviews questions
of law de novo, but we give “substantial deference” to the BIA’s interpretation of the INA and
accompanying regulations. Id. That means “[t]he BIA’s interpretation of the statute and regulations
will be upheld unless the interpretation is arbitrary, capricious, or manifestly contrary to the
statute.” Id. (quoting Khalil v. Holder, 557 F.3d 429, 435 (6th Cir. 2009)). “[T]o overturn [the
BIA’s] factual determination, ‘we must find that the evidence not only supports [a contrary]
conclusion, but compels it.’” Sarr v. Gonzales, 485 F.3d 354, 360 (6th Cir. 2007) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (alterations in original)). This standard applies to
asylum applications, withholding of removal petitions, and CAT relief. See Harmon v. Holder,
758 F.3d 728, 732–37 (6th Cir. 2014).
Alleged due process violations in removal proceedings receive de novo review. Hassan v.
Gonzales, 403 F.3d 429, 435 (6th Cir. 2005). “Although IJs retain ‘broad discretion in conducting
[a removal] hearing,’ the Fifth Amendment entitles immigrants facing deportation ‘to a full and
fair hearing.’” Camara v. Holder, 705 F.3d 219, 223 (6th Cir. 2013) (quoting Lin v. Holder, 565
F.3d 971, 979 (6th Cir. 2009) (alteration in original)).
III.
The Petitioners assert four claims: (1) that the BIA improperly denied their application for
asylum; (2) that the BIA erred by finding them ineligible for withholding of removal; (3) that the
BIA erred by denying relief under the CAT; and (4) that the proceedings below violated their due
process rights.
“‘To establish eligibility for asylum, an applicant must establish he is a “refugee” within
the meaning of’ the [INA].” Bi Qing Zheng v. Lynch, 819 F.3d 287, 294 (6th Cir. 2016) (quoting
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Lin, 565 F.3d at 976). The INA defines a refugee as someone “who is unable or unwilling to return
to . . . [his] 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 secure withholding of removal, “applicant[s] must show ‘a
clear probability’ that [they] would be subject to persecution if returned to the country in question.”
Camara, 705 F.3d at 225 (quoting Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006)).
Under the CAT, removal is improper when “it is more likely than not that [applicants]
would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). This
Circuit understands torture under the CAT as: “‘[A]ny act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted’ to extract information, punish, intimidate,
coerce, or otherwise discriminate, ‘when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official . . . .’” Haider v. Holder, 595 F.3d 276,
289 (6th Cir. 2010) (quoting 8 C.F.R. § 1208.18(a)(1)). When determining the likelihood of future
torture, we consider:
(i) Evidence of past torture inflicted upon the applicant; (ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and, (iv) Other relevant information regarding conditions in the country of removal.
8 C.F.R. § 208.16(c)(3).
Unlike the INA, “[t]he CAT does not afford protection to torturous acts inflicted by wholly
private actors.” Zaldana Menijar v. Lynch, 812 F.3d 491, 501 (6th Cir. 2015). Yet, acquiescence
by a public official, such as “willful blindness,” is enough to trigger CAT protection. Id.
“Acquiescence of a public official requires that the public official, prior to the activity constituting
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torture, have awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).
Aliens may assert Fifth Amendment claims to challenge potential errors in removal
proceedings. Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). This involves a two-step
inquiry where we ask “first, whether there was a defect in the removal proceeding; and second,
whether the alien was prejudiced because of it.” Id. In short, “aliens who have once passed through
our gates, even illegally, may be expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law.” Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 212 (1953).
A.
We begin with the Petitioners’ asylum claim. They assert that they experienced
persecution, and will likely experience future persectuion, because they belong to the Mateo-
Vasquez nuclear family. Under the INA, “the applicant[s] must establish that race, religion,
nationality, membership in a particular social group, or political opinion was or will be at least one
central reason for persecuting the applicant[s].” 8 U.S.C. § 1158(b)(1)(B)(i). So the Petitioners
“must show that [their] membership in the [Mateo-Vasquez] family is ‘one central reason’ for the
persecution.” Cruz-Guzman v. Barr, 920 F.3d 1033, 1037 (6th Cir. 2019). “This is a question of
motive, not just simple causation.” Id. Rephrased, the Petitioners must show a nexus between their
family membership and the persecution inflicted by the unnamed Guatemalan gang. See Al-
Ghorbani, 585 F.3d at 997. In short, “family membership ‘cannot be merely incidental or
tangential to the persecutor’s motivation.’” Quintero-Florentino v. Barr, 788 F. App’x 348, 350
(6th Cir. 2019) (quoting In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 213 (B.I.A. 2007)).
“[I]ndiscriminate mistreatment” or “random crime” directed at a family does not amount to de
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facto persecution under the INA. Stserba v. Holder, 646 F.3d 964, 972 (6th Cir. 2011) (quoting
Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005)).
Under that standard, the Petitioners challenge the BIA’s decision to uphold the IJ’s
determination that Guatemalan gang members did not target them because of their family status.
Even accepting the Petitioners’ testimony that gang members (1) assaulted, threatened, and
intimidated members of the Mateo-Vasquez family and (2) are likely to repeat those attacks in the
future, however, the Petitioners’ testimony makes clear that the gang did not target them based on
their family status.
We start with Erasmo. The alleged persecution began when gang members approached
Erasmo for recruitment purposes and repeatedly attacked him when he refused to assist with their
criminal enterprises. Erasmo opined that the gang targeted him because he was “somebody with
low income” and for “not being presented as well as [his] other friends.” (AR 245.) That suggests
Erasmo’s family ties did not motivate the gang’s recruitment efforts. And his sister, Maira, also
testified that the gang recruited her brother to help with its nefarious activities and that it targeted
him because he was “really lacking resources.” (AR 267.) For over a year, the gang would seek to
kidnap Erasmo while physically abusing him. But no evidence suggests that the gang did so
because of his family ties.
Next, Maira claims that the gang targeted her based on her relationship to her brother. But
she testified that she drew the gang’s attention during an incident where she tried to disrupt its
effort to recruit her brother. Although the gang at first reacted to Maira with hostility, one member
stifled the conflict by claiming that Maira would be a “great whore.” (AR 269.) On another
occasion, the gang recruited her as a prostitute because it believed she could “make a lot of money”
for them. (AR 271.) After these incidents, Maira came to the United States. So nothing in Maira’s
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testimony reflects that her family status motivated the gang’s mistreatment of her. Instead, it
appears the gang simply wanted to use Maira to further its criminal activity.
Finally, Honoria, the mother of Maira and Erasmo, testified that the gang harassed her
family. In doing so, Honoria confirmed her children’s testimony that the gang intimidated and
physically assaulted her family members. But she also speculated that the gang’s motivation was
likely to recruit her son “to be among [its] workers.” (AR 307.) During 2014, Honoria received
four phone calls from gang members who wanted to speak to her children, many of which involved
vague threats about Honoria having “to pay the consequences” if she failed to turn her children
over to the gang. (AR 316.) Again, these misdeeds seem to have more to do with gang recruitment
than persecuting the Mateo-Vasquez family.
The Petitioners contend that this unfortunate series of events arose from their membership
in the same nuclear family. Making that claim, they assert “[t]here is no evidence in the record that
the gang would have been terrorizing [the Petitioners] . . . if [Erasmo] had not refused to comply
with their demands.” (Pet’rs’ Br. at 60.) But that argument misunderstands what it means for
persecution to have a nexus with a protected group. The Petitioners’ testimony reveals that the
gang recruited Erasmo because he was vulnerable and he could help the gang execute its misdeeds.
And it seems that the gang took interest in Maira as a potentially lucrative prostitute. Similarly,
the gang threatened Honoria because recruiting her children would benefit its endeavors. So there’s
little evidence that the Petitioners’ family relationship was a central or driving motivator for the
gang’s heinous acts. As a result, the alleged persecution lacks a nexus with the Petitioners’
purported social group; the gang simply exercised force and threats because those methods
furthered its criminal activity. It follows that the family relationship between the Petitioners was
at most tangential to the gang’s interest in carrying out its narcotics and prostitution schemes.
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Although we sympathize with the physical and mental injuries suffered by the Mateo-Vasquez
family, the record suggests that the gang used force and threats against the Petitioners to perpetrate
criminal activity. Being targeted by criminals for the usual reasons, and not based on membership
in a protected group, cannot support an application for asylum. Stserba, 646 F.3d at 972.
In sum, a tangential correlation between violence and a protected social group does not
satisfy the INA’s requirement that membership in the protected group be a central reason for the
persecution. Quintero-Florentino, 788 F. App’x at 350. So we agree with the BIA’s denial of the
Petitioner’s asylum application.1
B.
Independent of the INA, the Petitioners seek relief under the CAT based on fear of future
gang violence. To obtain relief, they must show a likelihood of experiencing torture should they
return to Guatemala and that the Guatemalan government would acquiesce to that torture. 8 C.F.R.
§ 1208.18(a). Here, the Petitioners fear harm at the hands of private, not public, actors. Although
the record contains testimony from the Petitioners that the Guatemalan police failed to protect
them or prosecute gang members, “the police’s failure or inability to protect citizens, alone, does
not show acquiescence.” Bravo-Domingo v. Barr, 806 F. App’x 443, 449 (6th Cir. 2020) (citing
Torres v. Sessions, 728 F. App’x 584, 589 (6th Cir. 2018)). And general evidence suggesing (1)
the Guatamelan’s government general inability to prevent crime and (2) that gangs abuse citizens
with “impunity” in Guatemala is not enough to warrant relief under the CAT. See id.
1 Although the Petitioners seek review of the BIA’s denial of withholding of removal, they analyze their asylum and withholding of removal claims under the same rubric. They make no independent arguments about their withholding of removal claims and, for that matter, barely mention them at all. To the extent that the Petitioners preserved their withholding claims for appeal, they specifically linked them to their asylum claims, which fail.
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Here, the Petitioners rely on evidence that gangs commit hundreds of murders, along with
other violent acts, without recourse in Guatemala each year. But that does not show that a specific
gang will likely torture the Petitioners if removed or that Guatemalan police will turn a blind eye
to that torture. What’s more, the record does not reflect that the gang remains interested in recruting
or harming anyone in the Mateo-Vasequz family. We also lack much information about the gang,
including its name, size, and geographic reach. That means the Petitioners cannot show that
relocating within Guatemala to avoid the gang would be impracticable. After reviewing the record,
we find that the Petitioners present insufficient evidence supporting a risk of future torture,
accompanied by the Guatamelan government’s acquiesence, to meet the standard for CAT claims.
C.
Finally, the Petitioners argue that the BIA and IJ violated their Fifth Amendment due
process rights during the proceedings below. That is because the BIA and IJ allegedly committed
several procedural errors when making credibility determinations, such as failing to consider all
relevant factors, ignoring the totality of the circumstances, and disregarding Erasmo’s PTSD. But
the BIA ruled against the Petitioners “even assuming that they all testified credibly[.]” (AR 4.)
Because the BIA ruled assuming favorable credibility findings for the Petitioners, no
prejudice arose from any credibility errors made by the IJ or the BIA. See Al-Ghorbani, 585 F.3d
at 980 (finding that alleged constitutional violations did not prejudice the petitioners because the
outcome would have been the same regardless of the error). So despite the IJ only finding Honoria
Vasquez-Perez credible, and not her children, that credibility finding did not affect the BIA’s
decision. Thus, the Petitioners’ due process claim fails.
IV.
For these reasons, we DENY the petition.
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