Ernesto Gonzalez-Hernandez v. William Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 17, 2020
• Docket: 19-3477
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0414n.06

No. 19-3477

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jul 17, 2020 DEBORAH S. HUNT, Clerk

ERNESTO GONZALEZ-HERNANDEZ, ) ) Petitioner, ) ON PETITION FOR REVIEW ) OF AN ORDER OF THE v. ) BOARD OF IMMIGRATION ) APPEALS WILLIAM P. BARR, Attorney General, ) ) Respondent. ) OPINION

Before: MOORE, CLAY, and MURPHY, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Ernesto Gonzalez-Hernandez petitions for

review of the decision of the Board of Immigration Appeals (“BIA”) denying his applications for

withholding of removal and relief under the Convention Against Torture. Because Gonzalez-

Hernandez fails to address various bases upon which the IJ and BIA denied his applications, we

DENY the petition for review.

I. BACKGROUND

Gonzalez-Hernandez is a native and citizen of Mexico. Administrative Record (“A.R.”) at

458 (Notice to Appear). He entered the United States in April 2006, id. at 407 (I-589 Appl. at 1),

and was not admitted or paroled after inspection by an Immigration Officer, id. at 458 (Notice to

Appear). After being served with a notice to appear, id., and conceding its removability charge,

id. at 120 (Hr’g Tr. at 6), Gonzalez-Hernandez appeared before an immigration judge for removal No. 19-3477, Gonzalez-Hernandez v. Barr

proceedings on December 19, 2017, and submitted an application for relief from deportation, id.

at 416 (I-589 Appl. at 10). The IJ treated this application as an application for withholding of

removal and relief under the Convention Against Torture (CAT). Id. at 121 (Hr’g Tr. at 7).

A. Gonzalez-Hernandez’s Removal Proceedings

Gonzalez-Hernandez testified in support of his applications for relief to the following

information.1 In 2002, he was preparing to cross the border from Mexico to the United States

when two individuals intercepted him and asked him to take a package across the border. Id. at

137–38. These individuals, unknown to Gonzalez-Hernandez, carried firearms and threatened

him, but he refused and crossed the border without further incident. Id. at 139. He spent the day

shopping in Brownsville, Texas, and returned to Mexico the same day. Id. at 140. Several months

later, Gonzalez-Hernandez again crossed the border into the United States, this time without

encountering anyone along the way. Id. at 145. In 2003, he prepared to cross the border again,

but was intercepted by three individuals he did not know, two of whom carried firearms. Id. at

146–47. The individuals demanded that he take a package to the United States for them, but again

Gonzalez-Hernandez refused, and he crossed safely into the United States, where he spent the day

and then returned to Mexico. Id. at 147–48. On each of these trips, Gonzalez-Hernandez crossed

into the United States lawfully with a visa. Id. at 149. He believed that the individuals who had

stopped him and threatened to kill him were members of the Zetas, because they “are the only

criminal group that operate[s] in that region.” Id. at 149–50.

In 2004, Gonzalez-Hernandez received a tourist permit and returned to the United States.

Id. at 152–53. This time, he decided to stay in the United States, he said, “because of the problems

1 Gonzalez-Hernandez testified in Spanish through an official interpreter. A.R. at 126 (Hr’g Tr.) (Cover Page).

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that I had — I have had in Mexico.” Id. at 153. (These “problems,” he confirmed, were the two

encounters at the border about which he had just testified—after 2003, he had no problems in

Mexico. Id.; id. at 156–58.) He remained in the United States until 2006, when he was detained

in “Fort Huron,” Michigan, and removed to Mexico. Id. at 154–55. Shortly thereafter, he returned

to the United States, this time entering without inspection. Id. at 156. Since then, his only run-in

with the law has been a charge for driving while impaired in June 2007, leading to a 12-month

probation, which he completed. Id. at 179–81.

When asked to describe any threats, harm, or mistreatment that his friends or family have

experienced in Mexico, Gonzalez-Hernandez gave four examples. First, he described a series of

threatening, anonymous phone calls that his sister had received asking for information about him.

Id. at 159–61. His sister tried to identify the callers without success. Id. at 161. Gonzalez-

Hernandez did not state when these calls occurred, but testified that his sister, who “didn’t want to

tell [him] the truth,” id. at 162, ultimately told him about the calls in 2008, id. at 164. His sister

did not report the calls to the police because of corruption within the police force and because she

did not have a phone number to report. Id. at 166–67.

Second, Gonzalez-Hernandez testified that in 2012 or 2013, his friend Adolfo was deported

to Mexico, and was abducted four or five months after his deportation. Id. at 167–68. Gonzalez-

Hernandez did not know who had abducted his friend, but testified that because Adolfo was unable

to pay ransom, he was killed. Id. at 168–69. He learned of Adolfo’s killing through a mutual

friend and through Adolfo’s wife. Id. at 171.

Third, Gonzalez-Hernandez described how his nephew, Juan Pablo Gonzalez, was forced

to work for organized crime groups after the nephew’s family was threatened. Id. at 172. The

threats were not made to any specific person in the family. Id. at 193. He learned that his nephew

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had been forced into this work from Gonzalez-Hernandez’s sister, the same sister who had

previously received the threatening calls asking about Gonzalez-Hernandez. Id. at 173. Some

time after the nephew joined these groups, “the marines or the soldiers in Mexico detained him.”

Id. at 172–73. While detained, the nephew was beaten by his captors so that he would give

information relating to organized crime. Id. at 173–74. Whereas the nephew’s friends, who had

also been detained, were taken to jail, the nephew was released from detention. Id. at 174. A week

later, Gonzalez-Hernandez testified, the nephew was kidnapped “right around the corner from

where we used to live,” and has not been heard from since 2013. Id. at 173–75. Gonzalez-

Hernandez stated that he learned this information from his sister and his brother, the nephew’s

father. Id. at 175.

Fourth, Gonzalez-Hernandez’s brother, Juan, has been charged money so that the

organized crime groups do not harm him. Id. at 194. His brother began making these extortion

payments before his son (Gonzalez-Hernandez’s nephew) was kidnapped. Id. at 194–95.

Gonzalez-Hernandez speculated that his brother began paying in 2012 or 2013. Id. at 195.

Gonzalez-Hernandez testified that if he is deported to Mexico, “they will harm me . . .

[b]ecause that criminal group continues in the same region.” Id. at 177. He was unsure of whether

he would be able to find another safe place to live in Mexico because “crime is all over the place

over there.” Id. At the removal proceedings, he proffered the testimony of his U.S. citizen brother

who could corroborate his testimony, id. at 182, 196, and presented to the IJ a letter from his family

requesting that Gonzalez-Hernandez be permitted to remain in the United States “for security

reasons,” id. at 190. The letter described the detention, release, and kidnapping of Gonzalez-

Hernandez’s nephew, and stated that “[f]or this reason, we beg you please not send [Gonzalez-

Hernandez] back to Mexico.” Id. at 191.

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B. Decisions by the IJ and BIA

The IJ denied Gonzalez-Hernandez’s application for relief in an oral decision. Id. at 94 (IJ

Decision at 13). After recounting the details of Gonzalez-Hernandez’s testimony, the IJ concluded

first that Gonzalez-Hernandez was “generally credible.” Id. at 88. With respect to his withholding

application, the IJ stated that Gonzalez-Hernandez’s application was based on alleged persecution

due to his membership in three particular social groups (PSGs). Id. at 90. First, “deportees from

the U.S. who will be kidnapped and possibly tortured or killed by the Zetas based on their imputed

wealth,” second, “individuals who have previously refused requests from the Zetas and other drug

cartels,” and third, “family members of individuals who have been harmed or killed for allegedly

speaking against [the Zetas].” Id. The IJ determined that these groups met the PSG immutability

requirement. Id. With respect to the third group—the only one raised in Gonzalez-Hernandez’s

present petition—the IJ held that it “may be particular,” or in other words, may meet the PSG

particularity requirement. Id. In so holding, however, the IJ described the PSG as “family

members who have been killed by organized crime,” and found that there was no evidence to

suggest that the nephew had in fact been killed. Id. The IJ next concluded that Gonzalez-

Hernandez had failed to demonstrate that the PSG was socially distinct. Id. at 91.

In addition to failing on social-distinction grounds, Gonzalez-Hernandez was unable to

demonstrate that his membership in a PSG was a reason for his persecution. Id. at 91. In particular,

the IJ found that Gonzalez-Hernandez could not prove his membership in the group “relating to

murdered family members.” Id. The IJ also discounted Gonzalez-Hernandez’s testimony

regarding his encounters with individuals at the border crossing, stating that these incidents bore

no apparent connection to the “two unsolved killings.” Id. at 92. Similarly, the phone calls that

his sister received “may have occurred years after respondent left for the United States.” Id. Thus,

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apart from failing to demonstrate that he suffered from persecution, he could not demonstrate that

anything that had happened to him occurred on account of a statutorily protected ground. Id. The

IJ also concluded that Gonzalez-Hernandez did not warrant CAT relief. Id. at 93.

The BIA affirmed in a brief decision, stating in relevant part:

We find no clear error in the Immigration Judge’s findings of fact and concur with the Immigration Judge that the respondent did not establish the required nexus between any past harm, or his fear of future harm, and his membership in a particular social group, and he is therefore ineligible for withholding of removal.

We will also adopt and affirm the Immigration Judge’s decision to deny the respondent’s application for protection under the Convention Against Torture, for the reasons articulated in her decision.

Id. at 3–4 (BIA Decision at 1–2). Gonzalez-Hernandez timely petitioned this court for review.

We have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1).

II. STANDARD OF REVIEW

“Where, as here, the BIA reviewed the IJ’s decision de novo and issued its own separate

opinion, we review the BIA’s opinion as the final agency determination.” Hassan v. Holder, 604

F.3d 915, 924 (6th Cir. 2010). “However, to the extent the BIA adopted the immigration judge’s

reasoning, this court also reviews the immigration judge’s decision.” Sanchez-Robles v. Lynch,

808 F.3d 688, 692 (6th Cir. 2015). We “review[] both the immigration judge’s and the BIA’s

factual findings under the substantial-evidence standard.” Khalili v. Holder, 557 F.3d 429, 435

(6th Cir. 2009). “The substantial-evidence standard requires us to defer to the agency’s findings

of fact ‘if supported by reasonable, substantial, and probative evidence on the record considered

as a whole.’” Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012) (quoting Mikhailevitch

v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (citations omitted)). “These findings ‘are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Ben Hamida

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v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review

questions of law de novo. Giraldo v. Holder, 654 F.3d 609, 611 (6th Cir. 2011).

III. DISCUSSION

In his petition, Gonzalez-Hernandez raises three main arguments. First, he argues that the

IJ mistakenly characterized one of his proposed PSGs. Second, he argues that the IJ’s factual

findings about the harm that befell Gonzalez-Hernandez’s nephew—and by extension, the harm

that befell him and the nephew’s other family members—were erroneous. Third, he argues that

the IJ erred in concluding that he did not experience persecution. The problem with Gonzalez-

Hernandez’s petition is that, even assuming that these arguments are persuasive, he fails to address

the IJ’s independent conclusions that his proposed PSGs were not socially distinct and that he did

not suffer persecution on account of his membership in a PSG.

Each of Gonzalez-Hernandez’s three main arguments deals, for the most part, with the IJ’s

supposed mischaracterization of what happened to the nephew. First, according to Gonzalez-

Hernandez, the IJ “materially deviated from the third particular social group by narrowing it to

individuals who have been killed by organized crime—only killed.” Pet. Br. at 10. “The IJ left

out harmed or disappeared by organized crime,” id., which was the crux of Gonzalez-Hernandez’s

allegation about what happened to his nephew. If this argument were both exhausted, cf. Resp.

Br. at 16–21, and correct, then the IJ’s conclusion that Gonzalez-Hernandez “ha[d] not proven his

membership” in the third proposed PSG would indeed be erroneous if Gonzalez-Hernandez also

demonstrated that the nephew had been harmed or disappeared, A.R. at 91 (IJ Decision at 10).

This latter premise is the basis of Gonzalez-Hernandez’s second argument—that the IJ erred in

disregarding the harm that both his nephew and brother experienced. See Pet. Br. at 24. Thus,

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accepting these two arguments as true, Gonzalez-Hernandez would have proven that he was the

member of a cognizable PSG, at least with respect to the group’s immutability and particularity.

Gonzalez-Hernandez’s third argument is that, contrary to the IJ’s determination, he

personally suffered persecution through the harm that his nephew and brother experienced and

through the threats he received via phone calls to his sister. See Pet. Br. at 28 (“In light of Sixth

Circuit law, the harm to the minor child nephew is also harm to the parent and family. So, it was

an egregious error for the IJ to find ‘nothing happened’ to Petitioner and his brother.”); id. at 17

(“Petitioner was threatened via calls to his sister—that was also characterized as nothing.”). To

support his theory of persecution, Gonzalez-Hernandez cites our decision in Abay v. Ashcroft, 368

F.3d 634 (6th Cir. 2004), which held that an asylum applicant could base her application on her

well-founded fear that her daughter would be forced to undergo female genital mutilation if

deported, id. at 642. Taking all three arguments together, Gonzalez-Hernandez maintains that he

has endured or fears persecution and that he is a member of a PSG, namely the group consisting

of family members of individuals who have been harmed or killed by organized crime.

Yet even if each of these arguments were true (and administratively exhausted), Gonzalez-

Hernandez’s petition would still fall short for two reasons. First, he does not challenge the IJ’s

conclusion that none of the proposed social groups met the social-distinction requirement. For a

group to be considered socially distinct, “the set of individuals with the shared characteristic [must]

be ‘perceived as a group by society.’” Umaña-Ramos v. Holder, 724 F.3d 667, 671 (6th Cir. 2013)

(quoting In re S–E–G–, 24 I. & N. Dec. 579, 586 (BIA 2008)). “[T]he group ‘cannot be defined

exclusively’ by the fact that its members have been subject to harm.” Kante v. Holder, 634 F.3d

321, 327 (6th Cir. 2011) (quoting Matter of A–M–E & J–G–U, 24 I. & N. Dec. 69, 74 (BIA 2007)).

Nowhere in Gonzalez-Hernandez’s opening brief or reply brief does he explain how his third PSG

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is perceived as a group by society, and upon review of the country-condition evidence that

Gonzalez-Hernandez has highlighted, we do not believe the IJ’s decision regarding social

distinction lacked substantial evidentiary support.

Second, Gonzalez-Hernandez does not challenge the IJ’s conclusion that he failed to

demonstrate a nexus between the persecution he allegedly suffered and his membership in a

proposed PSG. See Guzman-Vazquez v. Barr, 959 F.3d 253, 274 (6th Cir. 2020) (“[A]pplicants

for withholding of removal under 8 U.S.C. § 1231(b)(3) must demonstrate that a protected ground

was at least one reason for their persecution.”). The IJ noted the considerable gaps in time between

the alleged incidents of persecution in this case: In 2002 and 2003, Gonzalez-Hernandez was

threatened by individuals before crossing into the United States; at some point between 2004 and

2008 (after he had already entered the United States and remained), his sister received threatening

phone calls asking about his whereabouts; in 2012 or 2013, his friend Adolfo was murdered and

his brother started making extortion payments to organized crime groups; and in 2013, his nephew

was detained, released, and kidnapped. See A.R. at 91–92 (IJ Decision at 10–11). Gonzalez-

Hernandez does not respond to the IJ’s conclusion that these incidents were separate and unrelated.

In sum, he fails to explain how at least one reason for the persecution he has suffered or will suffer

is his membership in a family with a member who has been harmed or killed.

Finally, Gonzalez-Hernandez does not demonstrate how the IJ erred in denying him CAT

relief. An individual qualifies for withholding of removal under the CAT if he demonstrates that

“‘it is more likely than not that [he] would be tortured if removed to the proposed country of

removal.’” Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010) (quoting 8 C.F.R. § 208.16(c)(2)).

The IJ’s denial of CAT relief was supported by substantial evidence. Gonzalez-Hernandez

credibly testified that several years ago, his nephew was forced into a criminal organization,

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detained and tortured by the Mexican military, and subsequently kidnapped and disappeared. But

as discussed above, he did not adduce evidence linking these horrific harms to a likelihood that he

will suffer the same fate if he is removed to Mexico.

IV. CONCLUSION

For the foregoing reasons, we DENY the petition for review.