Gabriela Tello-Espana v. Jefferson B. Sessions, III

712 F. App'x 554
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 9, 2017
Docket13-4452
StatusUnpublished
Cited by2 cases

This text of 712 F. App'x 554 (Gabriela Tello-Espana v. Jefferson B. Sessions, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gabriela Tello-Espana v. Jefferson B. Sessions, III, 712 F. App'x 554 (6th Cir. 2017).

Opinion

BOGGS, Circuit Judge.

Gabriela Tello-Espana petitions this court for review of a final order of removal entered by the Board of Immigration Appeals (“BIA” or “Board”). For the reasons set forth below, we affirm the BIA’s order.

1. Background

Tello-Espana is a native and citizen of Mexico. She entered the United States illegally sometime shortly before June 2003. In October 2010, the Department of Homeland Security (“DHS”) initiated removal proceedings against her after she was arrested earlier that month for shoplifting. At a hearing in Immigration Court in March 2011, Tello-Espana conceded that she was removable under 8 U.S.C § 1182(a)(6)(A)(i) for being a citizen of Mexico who entered and was present in the United States without admission or parole. On May 2, 2011, Tello-Espana filed an application for withholding of removal 1 and protection under the Convention Against Torture (“CAT”). In the application, Tello-Espana sought withholding based upon the statutory grounds of nationality, political opinion, and membership in a particular social group. She stated that her brother-in-law and a friend both had recently been murdered in Mexico. She claimed that they were victims of organized crime, and that she feared that she too would “suffer the consequences of the organized crime for simply returning to Mexico after a prolonged absence.” She also reported that she was afraid that returning to Mexico would put her at risk of harm because people would wrongly believe that she was wealthy after living in the United States for so many years.

On April 5, 2012, after a hearing on the merits, an Immigration Judge (“IJ”) denied Tello-Espana’s application for withholding and protection under CAT and ordered her removed from the United States to Mexico. During the hearing, Tel-lo-Espana withdrew her political-opinion claim, but continued to press her particular-social-group and nationality claims. She explained that the social group that she was a member of consisted of single women with children who are United States citizens. 2 She also clarified that her nationality claim was based not on her status as a Mexican citizen, but on the fact that she would be falsely perceived to be a citizen of the United States if she returned to Mexico.

The IJ found that Tello-Espana failed to meet her burden in that she did not establish any of the following three necessary elements: (1) that it is more likely than not that she would be harmed by anyone were she to return to Mexico, (2) that such harm would constitute persecution, and (3) that a statutory ground would be a central reason for such persecution. The IJ also denied Tello-Espana’s claim for CAT protection, finding that she did not demonstrate that it is more likely than not that she would be tortured by anyone in Mexico.

Tello-Espana appealed the IJ’s decision to the BIA and also filed a motion for remand and a motion requesting that the BIA administratively close the case. The BIA denied the appeal, concluding that Tello-Espana had failed to meet her burden of establishing that she would be' persecuted on the basis of a statutory ground if she were returned to Mexico.

In her motion requesting administrative closure, Tello-Espana asked the BIA to close her case until a travel warning for Mexico issued by the United States Department of State (“State Department”) is lifted. DHS opposed the motion for administrative closure, arguing that administrative closure was not appropriate because the travel warning was irrelevant to the outcome of Tello-Espana’s case. The BIA stated that it agreed with DHS’s position and denied Tello-Espana’s motion for administrative closure.

The BIA also denied Tello-Espana’s motion for remand, which was premised on the claim that country conditions in Mexico had declined precipitously since the time of her hearing before the IJ in 2012. The BIA denied- the motion, holding that the changed conditions, even assuming they existed, did not support her claim for withholding of removal. The BIA also declined to take administrative notice of evidence of changed country conditions that Tello-Es-pana had provided in support'of her motion to remarid and her motion for administrative closure.

Tello-Espana timely appealed the BIA’s decision to this court. Tello-Espana makes three principal arguments on appeal. 3 First, she contends that the case must be remanded so that the IJ can re-evaluate her particular-social-group claim in light of new case law concerning the definition of “particular social group.” Second, she claims that the BIA erred in declining to take administrative notice of evidence of changed country conditions. Third, she argues that the BIA erred in denying her motion for administrative closure.

2. Discussion

a. Standard of Review

“Where, as here, the BIA issues its own decision rather than summarily affirming the IJ, the BIA decision is reviewed as the final agency decision, but the IJ’s decision is also reviewed to the extent that the BIA adopted it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014). “Questions of law involving immigration proceedings are reviewed de novo.” Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). We review the agency’s factual findings under the substantial-evidence standard of review. Harmon, 758 F.3d at 732. “Under this standard, we will not reverse a factual determination ... unless we find ‘that the evidence not only supports a contrary conclusion, but compels it.’ ” Ceraj, 511 F.3d at 588 (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)).

We review the denial of a motion to remand for an abuse of discretion. Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006). We also review the denial of a motion for administrative closure for abuse of discretion. Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007). “In determining whether the Board abused its discretion, this Court must decide whether the denial ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discretion.” Abu-Khaliel, 436 F.3d at 634 (alteration in original) (quoting Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir. 1982)).

b. Analysis

i. Motion to Remand

Tello-Espana argues that the BIA abused its discretion in denying her motion to remand.

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Related

CASTRO-TUM
27 I. & N. Dec. 271 (Board of Immigration Appeals, 2018)

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Bluebook (online)
712 F. App'x 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabriela-tello-espana-v-jefferson-b-sessions-iii-ca6-2017.