NOT RECOMMENDED FOR PUBLICATION File Name: 24a0018n.06
Case No. 23-3426
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) Jan 16, 2024 HEIDY CAROLINA GOMEZ ANDRET and KELLY L. STEPHENS, Clerk ) CIRILO GOMEZ ANDRET, ) Petitioners, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS MERRICK B. GARLAND, Attorney General, ) ) Respondent. ) OPINION )
Before: McKEAGUE, LARSEN, and MURPHY, Circuit Judges.
McKEAGUE, Circuit Judge. Teenaged siblings Heidy and Cirilo Gomez Andret fled
their home country of Guatemala under remarkably difficult circumstances. Fearing their violent
neighbor and sexually abusive uncle, Heidy and Cirilo requested asylum in the United States. They also sought withholding of removal and protection under the U.N. Convention Against Torture.
But our immigration courts denied such relief because, among other things, Heidy and Cirilo
couldn’t show that the Guatemalan government was unable or unwilling to protect them. Nor could
they show a likelihood of torture with the government’s acquiescence. Because substantial
evidence supports that decision, we must DENY the siblings’ petition for review.
I. Heidy Carolina Gomez Andret and Cirilo Gomez Andret are siblings from Guatemala. In
2016, when Heidy was 15 and Cirilo was 13, they applied for admission at a U.S. port of entry. Case No. 23-3426, Gomez Andret v. Garland
Immigration authorities released Heidy and Cirilo into the custody of their mother in Nashville
and, a few months later, commenced removal proceedings against them. Both siblings conceded
removability.
Heidy and Cirilo applied for asylum, withholding of removal, and relief under the U.N.
Convention Against Torture. They both feared harm if forced to return to Guatemala. Heidy and
Cirilo attached a variety of supporting documents to their applications, including a scholar’s expert
report and several articles on Guatemala’s current conditions.
The siblings appeared before an immigration judge in July 2019 for a consolidated hearing.
Heidy and Cirilo (then aged 18 and 16, respectively) testified in support of their immigration
applications. Their testimony told the following story:
Heidy and Cirilo lived in a small Guatemalan town with their grandparents. Their
grandfather is a village elder and landowner. Heidy and Cirilo, like their grandfather, are
indigenous. They speak both Spanish and their community’s native Achi language. In Guatemala,
indigenous people are perceived as less worthy than non-indigenous Spanish speakers. And land
ownership is particularly important to indigenous families; landowners are treated better and are
deemed more powerful than those who don’t own land.
The siblings’ grandfather has long been embroiled in a bitter land dispute with a neighbor. That neighbor, Elena Ruiz, accused the grandfather of stealing some of her land. Partly indigenous
herself, Elena Ruiz is a prominent village elder with more power than the siblings’ family. She
sued the grandfather in a local court, but the court ruled against her. Furious, Elena Ruiz put up
obstructive fencing and cut off water to the grandfather’s house. However, the grandfather
successfully obtained a court order freeing access to his house. The two elders battled in court
several times over the course of the dispute, and the court consistently ruled in the grandfather’s
favor. Finally, the court ordered the grandfather to buy the portion of Elena Ruiz’s land that was
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closest to his. This further enraged Elena Ruiz. The land dispute between elders divided the town;
some supported the grandfather, but most supported Elena Ruiz.
Elena Ruiz sometimes resorted to violence, occasionally directed toward Heidy and Cirilo.
She would insult and threaten the siblings. She threw rocks and sticks at them and chased them
with her machete. One morning, Heidy and Cirilo heard gunshots near their house—although they
never saw the gunmen, they believe that Elena Ruiz’s workers were responsible. On a different
occasion, their grandfather came home with a dislocated arm and told the siblings that one of Elena
Ruiz’s workers had beaten him. Heidy and Cirilo also believe that Elena Ruiz claimed
responsibility for poisoning and killing one of their cousins. Both siblings fear that she will kill
them if they return to Guatemala.
Heidy and Cirilo testified that their family unsuccessfully sought assistance from the
authorities to curb Elena Ruiz’s violent behavior. According to Cirilo, his grandparents requested
help from the judiciary to no avail. And both siblings said that their family had reported the
shooting and poisoning incidents to law enforcement. However, nothing came of the reports and
the police never arrested anyone. Cirilo believes that the police were indifferent because his family
is indigenous. Heidy thinks that the police held off because Elena Ruiz bribed them. And both
attested that Elena Ruiz could kill with impunity because of her influence over the police in their
town. The siblings never personally sought a restraining order in court or visited the police station.
Such a step would have been futile, Cirilo explained, because there was little chance of the police
believing them.
The siblings also testified about their uncle, Santiago Ruiz. When Heidy was ten years old,
Santiago Ruiz sexually assaulted her. He then threatened to hurt her again if she told anyone. Heidy
felt too scared to tell anyone at the time, and she never reported the assault to the authorities. Later,
after entering the United States, Heidy confided in her mother. She also told Cirilo. The siblings’
mother telephoned Santiago Ruiz to confront him, and the uncle threatened to kill both children if
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they ever returned to Guatemala. Cirilo believes Santiago Ruiz will carry out that threat because
his uncle always carries a weapon and is mentally unwell. Heidy also fears that Santiago Ruiz will
kill her. She doesn’t think that the Guatemalan authorities will protect her because, she explained,
women in Guatemala—particularly sexual-assault survivors—are perceived as worthless.
Before the hearing ended, the immigration judge asked Heidy and Cirilo about the lack of
corroborating evidence in the record. The judge noted that the siblings hadn’t provided letters from
their grandparents or others in their town. Nor had they provided any copies of police reports or
court filings documenting their family’s dispute with Elena Ruiz. In response, the siblings said that
they had obtained a letter from their grandfather but did not submit it in time. And Cirilo explained
that he and his sister never thought to ask their grandparents for other corroborative documents.
The immigration judge denied relief in a detailed written opinion. She found Heidy and
Cirilo credible but decided that their testimony required corroboration. After all, the testimony was
“somewhat generalized” about Elena Ruiz’s threatening and violent conduct. Admin. R. 86. And
many of the siblings’ suppositions “were not supported by any detail,” including their belief that
Elena Ruiz routinely bribed the police and could murder people without repercussion. Id. The
record lacked important details: information about how local police operated, evidence pertaining
to the poisoned cousin, and specifics regarding the grandfather’s land dispute. The judge was not
satisfied by Heidy and Cirilo’s limited explanation for the absent corroborating evidence.
Turning to the elements of the siblings’ claims, the immigration judge reasoned that Heidy
and Cirilo fell short for several independent reasons. Their asylum and withholding of removal
claims failed because the siblings hadn’t sufficiently shown that the Guatemalan government was
unwilling or unable to control Elena Ruiz and Santiago Ruiz. Nor could Heidy and Cirilo
demonstrate, among other things, that they faced persecution on account of a statutorily protected
ground. And the siblings’ Convention Against Torture claim similarly failed because they couldn’t
prove a likelihood of torture with the government’s acquiescence.
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The Board of Immigration Appeals summarily affirmed the immigration judge’s order
without issuing a written opinion. For purposes of our review, the immigration judge’s order is
therefore the final agency decision. See Denko v. I.N.S., 351 F.3d 717, 730 (6th Cir. 2003). Heidy
and Cirilo now petition us for review.
II. We review the immigration judge’s legal conclusions de novo and her factual findings for
substantial evidence. Zometa-Orellana v. Garland, 19 F.4th 970, 976 (6th Cir. 2021). The
substantial-evidence standard is highly deferential—we cannot disturb a factual finding unless the evidence compels a contrary conclusion. Dieng v. Holder, 698 F.3d 866, 871 (6th Cir. 2012). In
other words, the immigration judge’s factual findings bind us whenever any reasonable adjudicator
could make the same findings. See id. at 871–72.
Applicants seeking relief from removal bear the burden of proving their eligibility. 8 U.S.C.
§ 1229a(c)(4)(A). Sometimes, their credible testimony alone can suffice. However, immigration
judges may require corroborating evidence if otherwise credible testimony is insufficiently
persuasive or does not refer to “specific facts sufficient to demonstrate” that the burden of proof
has been satisfied. Id. § 1229a(c)(4)(B); see id. § 1158(b)(1)(B). When an immigration judge
reasonably deems corroborating evidence necessary, the applicant must provide corroborative evidence or offer a compelling explanation for why such evidence is not reasonably available. Lin
v. Holder, 565 F.3d 971, 976–77 (6th Cir. 2009). We review the immigration judge’s determination
about the availability of corroborative evidence under the deferential substantial-evidence
standard. Guzman-Vazquez v. Barr, 959 F.3d 253, 264 (6th Cir. 2020); see 8 U.S.C. § 1252(b)(4).
III.
Heidy and Cirilo seek three different forms of relief from removal. First and foremost, they
argue that they qualify for asylum. Second, they seek withholding of removal. Finally, they request
relief under the U.N. Convention Against Torture.
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A. Asylum
We begin with the siblings’ asylum claim. The attorney general wields the discretionary
power to grant asylum to those who qualify as “refugees.” Mbonga v. Garland, 18 F.4th 889, 892
(6th Cir. 2021). And Congress has defined “refugee” to mean those who are unable or unwilling
to return to their home country because of past persecution or a “well-founded fear” of future
persecution “on account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A). Asylum applicants bear the burden of proving that
they qualify as refugees. Juan Antonio v. Barr, 959 F.3d 778, 789 (6th Cir. 2020).
Persecution incorporates a state-action element—alleged harm cannot qualify unless
“inflicted by the government or by private parties that the government is ‘unable or unwilling to
control.’ ” Ortiz v. Garland, 6 F.4th 685, 688 (6th Cir. 2021) (quoting Matter of Acosta, 19 I. & N.
Dec. 211, 222 (B.I.A. 1985)). If alleged persecutors are private actors, the asylum applicant must
prove that he or she “cannot reasonably expect the assistance of the government” in controlling
the harmful conduct. Juan Antonio, 959 F.3d at 793 (citation omitted). Adjudicators must consider
the record as a whole when conducting this state-action inquiry. Relevant information includes
both (1) the government’s specific response to the applicant’s alleged persecution and (2) general
evidence of country conditions. K.H. v. Barr, 920 F.3d 470, 476 (6th Cir. 2019); see Ortiz, 6 F.4th at 689.
Here, the immigration judge determined, among other things, that Heidy and Cirilo failed
to prove the state-action component of persecution. It is undisputed that both Elena Ruiz and
Santiago Ruiz are private actors. And, the judge concluded, the siblings couldn’t show that the
Guatemalan government was unwilling or unable to control those actors. We review that
conclusion for substantial evidence. See Ortiz, 6 F.4th at 688–89. Applying that standard, we must
deny relief.1
1 Because this conclusion forecloses the siblings’ asylum and withholding of removal claims, we need not address the immigration judge’s alternative grounds for denying relief. -6- Case No. 23-3426, Gomez Andret v. Garland
1. Violent Neighbor
Start with Elena Ruiz, the siblings’ violent neighbor. Substantial evidence supports the
immigration judge’s conclusion that Heidy and Cirilo failed to show the Guatemalan government’s
unwillingness or inability to control her. According to their testimony, neither Heidy nor Cirilo
personally reported Elena Ruiz’s violent behavior to the police or judiciary. True, both siblings
testified that their family members unsuccessfully requested help from the government. But,
critically, Heidy and Cirilo failed to provide corroborative evidence for those assertions. That
failure effectively dooms their claims.
Requiring such corroborative evidence was reasonable in this case. After all, the
immigration judge found the siblings’ testimony “somewhat generalized” about Elena Ruiz’s
violence. Admin. R. 86. Some of their beliefs—such as their assertions regarding Elena Ruiz’s
influence over the police—were “not supported by any detail.” Id.; see 8 U.S.C. § 1158(b)(1)(B).
And Heidy and Cirilo were children at the time of the incidents; several years had since elapsed.
See Guzman-Vazquez, 959 F.3d at 258, 264–65 (deeming it appropriate to require evidence
corroborating applicant’s testimony about events that occurred several years ago when he was a
teenager). All things considered, the judge did not overstep by expecting a letter from the siblings’
grandparents or other adults in their community. It was similarly reasonable to expect copies of court documents or police reports to help clarify what the family had reported and why the
authorities didn’t act.
The siblings failed to adequately justify the corroborative evidence’s absence. When
pressed by the judge, they explained that they had obtained a letter from their grandfather but did
not timely provide it to the court. The only other explanation given—beyond running out of time—
was that the siblings never thought to ask their grandparents for copies of police reports, court
filings, or other documents. Notably, the siblings were represented by an immigration lawyer and
had years to obtain corroborating evidence. And they never claimed that corroborating documents
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were unavailable.2 The judge deemed their explanation insufficient, and substantial evidence
supports that judgment. Immigration judges routinely expect applicants to obtain helpful
corroborative documents from their home country. E.g., Lin, 565 F.3d at 977.
Even setting aside that particular corroboration problem, other evidence justifies the
immigration judge’s conclusion that there was no state action. Assume for a moment that the
siblings’ family indeed reported their neighbor’s conduct to the authorities. It does not necessarily
follow that law enforcement’s failure to formally investigate or arrest Elena Ruiz constitutes an
unwillingness or inability to control her. See, e.g., Skirko v. Gonzales, 153 F. App’x 958, 961 (6th
Cir. 2005) (failure to investigate); Borodachev v. Holder, 441 F. App’x 354, 361 (6th Cir. 2011)
(failure to apprehend). As the judge pointed out, the record leaves open the possibility that
Guatemalan authorities did nothing “because there was insufficient information to provide for an
investigation, arrest, or prosecution.” Admin. R. 88. After all, the siblings couldn’t provide much
detail about some of Elena Ruiz’s alleged violent behavior—most notably, the purported poisoning
of their cousin. And the siblings never substantiated their assumption that anti-indigenous bias or
Elena Ruiz’s corrupt influence caused the authorities’ inaction.
Moreover, substantial evidence suggests that the Guatemalan judicial system worked. The
siblings’ grandfather consistently used the court system to protect his legal interests against his
neighbor. For example, the judiciary stepped in to help when Elena Ruiz attempted to unlawfully
block access to the grandfather’s house. That responsiveness is difficult to square with the siblings’
contention that Elena Ruiz wielded enough power over local authorities to prevent government
intervention.
2 On appeal, the siblings argue that they were both minors when they fled Guatemala, “which would have hampered any efforts to attempt to obtain documentation from the authorities.” Pet’rs’ Br. 19–20. They similarly point to reports in the record describing corruption and other problems with the Guatemalan authorities. But Heidy and Cirilo failed to make those arguments in their hearing before the immigration judge. Even assuming that we can now entertain them, their arguments do not address why the siblings couldn’t obtain documents or letters from their grandparents. -8- Case No. 23-3426, Gomez Andret v. Garland
Heidy and Cirilo disagree. They direct us to reports and articles in the record describing
current conditions in Guatemala. That evidence, they suggest, shows the Guatemalan
government’s inability or unwillingness to curb violence related to land disputes—particularly
disputes involving indigenous communities. But as the immigration judge noted, most of the
reports’ information is not particularly relevant to the facts in this case. The reports provide an
overview of Guatemala’s historic mistreatment of indigenous people. They also detail land
conflicts between indigenous communities and the government, especially with regard to
infrastructure projects and mining licenses. We agree with the immigration judge that such information is largely inapposite to private land disputes between neighbors.
To be fair, the reports do provide some helpful background information. They briefly touch
on private land disputes, noting that Guatemala has a lot of them and that such disputes frequently
involve indigenous communities. They also explain that Guatemalan courts are often too
inaccessible or inefficient to adequately resolve such disputes. More generally, the reports describe
corruption within the Guatemalan government and high levels of violent crime.
Though relevant, that information does not change our conclusion. The immigration judge
acknowledged the mistreatment of indigenous communities, government corruption, and limited
resources available to tackle violent crime. But she also pointed out evidence from the reports
showing Guatemala’s “substantial efforts” to improve access to justice for indigenous
communities. Admin. R. 88–89. A holistic review of the record—including the grandfather’s
success in accessing local courts—thus does not compel a conclusion that the government was
unable or unwilling to control Elena Ruiz.
2. Abusive Uncle
Turning to the siblings’ abusive uncle, we reach the same conclusion. Substantial evidence
supports the immigration judge’s finding that the siblings failed to show state action. As a
threshold matter, the Guatemalan government never had an opportunity to respond to Santiago
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Ruiz’s sexual assault or threats because nobody reported the misconduct to law enforcement.
We’ve previously held that an applicant’s failure to report private abusers to the authorities is an
important—albeit non-dispositive—factor against finding persecution. See Ortiz, 6 F.4th at 689–
90; see also José-Tomás v. Barr, 822 F. App’x 354, 358 (6th Cir. 2020) (noting applicant’s failure
to report sexual assault to Guatemalan authorities).
Of course, we cannot ignore the country conditions that may have colored Heidy’s decision
not to report Santiago Ruiz. See K.H., 920 F.3d at 477–78. Heidy testified about Guatemala’s
stigma against sexual-assault survivors and her belief that authorities do not punish male abusers.
To an extent, reports and articles in the record back her up. They explain that violence against
women—especially indigenous women—remains a serious problem in Guatemala, and impunity
for perpetrators is quite high. The siblings’ scholarly expert report similarly underscores
Guatemala’s pervasive culture of “machismo,” which protects abusive men like Santiago Ruiz.
But, taken as a whole, the record does not compel a finding that the siblings couldn’t expect
help from the Guatemalan government. In reaching her decision, the immigration judge
emphasized the significant steps that Guatemala has implemented to curb gender-based violence
and punish offenders. For example, the government has established special prosecutors,
heightened criminal penalties, and specialized courts to combat crimes against women. Courts are
empowered to issue restraining orders against alleged abusers. The government also provides
shelters and free legal and medical services to aid survivors of gender-based violence. Some
programs are targeted specifically at helping indigenous women. And Guatemalan authorities have
taken similar steps aimed at stopping sexual abuse against minors. The immigration judge further
noted that, because Heidy and Cirilo both speak fluent Spanish, they wouldn’t face the language
barrier preventing many indigenous people from meaningfully accessing justice. Given these
considerations, the judge reasonably concluded that the siblings fell short of showing persecution.
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Resisting that conclusion, Heidy and Cirilo turn to our decision in Juan Antonio v. Barr,
959 F.3d 778 (6th Cir. 2020). But Juan Antonio is distinguishable. There, we concluded that the
record compelled a finding that the petitioner couldn’t reasonably expect the Guatemalan
government’s assistance in controlling her abusive husband. 959 F.3d at 794. For years, the abuser
in Juan Antonio beat, raped, and threatened the petitioner. Id. at 785–86. And his abuse continued
even after the petitioner repeatedly sought help from the authorities; the judiciary’s attempts to
restrain the abuser proved ineffective. Id. at 794–95. This case, however, presents a different
situation. Importantly, the Guatemalan government was never notified of Santiago Ruiz’s abuse. See Ortiz, 6 F.4th at 689–90; José-Tomás, 822 F. App’x at 358. Relatedly, no evidence suggests
that his abusive conduct continued despite the government’s best efforts to stop it. Given the
holistic and fact-specific nature of this inquiry—and our deferential standard of review—it makes
sense that the two cases would reach different outcomes.
B. Withholding of Removal
The siblings’ claims for withholding of removal fail for the same reason as their asylum
claims. Under the Immigration and Nationality Act, the attorney general cannot remove a person
to a country if he decides that the person’s “life or freedom would be threatened in that country”
on account of a protected ground. 8 U.S.C. § 1231(b)(3). An applicant is thus entitled to
withholding of removal if he or she “can establish a clear probability of future persecution.”
Sebastian-Sebastian v. Garland, 87 F.4th 838, 851 (6th Cir. 2023) (citation omitted). Withholding
claims require consideration of the same factors as asylum claims—but impose a higher standard
of proof on the showing of persecution. Yousif v. Lynch, 796 F.3d 622, 629 (6th Cir. 2015). As a
result, applicants necessarily fall short on their withholding claims when they cannot show a well-
founded fear of persecution under the more forgiving asylum standard. See Dieng, 698 F.3d at 874.
As described above, substantial evidence supports the immigration judge’s decision that
Heidy and Cirilo cannot show that the Guatemalan government is unable or unwilling to protect
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them from Elena Ruiz and Santiago Ruiz. The siblings failed to establish “persecution,” thereby
foreclosing their claims for withholding of removal.
C. Convention Against Torture
Finally, the siblings seek withholding of removal under the U.N. Convention Against
Torture. To qualify for relief under the Convention, an applicant must prove “that it is more likely
than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). Like persecution, “torture” requires state action. Federal regulations define it as the intentional infliction of pain or suffering on a person “by or at the instigation of or with the
consent or acquiescence of a public official acting in an official capacity or other person acting in
an official capacity.” Id. § 208.18(a)(1). In turn, “acquiescence” requires that “the public official,
prior to the activity constituting torture, have awareness of such activity and thereafter breach his
or her legal responsibility to intervene to prevent such activity.” Id. § 208.18(a)(7). To prevail,
applicants must show that government officials had “actual knowledge” of—or “willful blindness”
toward—the torturous acts. Id.; see Zaldana Menijar v. Lynch, 812 F.3d 491, 501 (6th Cir. 2015).
Substantial evidence supports the immigration judge’s decision that Heidy and Cirilo failed
to show that the Guatemalan government “would turn a blind eye in acquiescence to any torture.”
Admin. R. 91. Regarding Elena Ruiz’s violence, the siblings failed to provide the required corroborating evidence to demonstrate that public officials were notified of her conduct and failed
to intervene. And the record hardly compels a finding that the Guatemalan government deliberately
avoided learning about her violence. In fact, the record suggests that the Guatemalan judiciary was
relatively responsive whenever the siblings’ grandfather complained about his neighbor. Turning
to the abusive uncle, nothing in the record suggests that the Guatemalan authorities had actual
knowledge of Santiago Ruiz’s sexual assault or threats. That Guatemala still struggles to control
gender-based violence does not constitute acquiescence in it—especially given the active steps the
government has taken toward combatting such harm. Cf. Rreshpja v. Gonzales, 420 F.3d 551, 557
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(6th Cir. 2005) (human trafficking); Zaldana Menijar, 812 F.3d at 502 (gang violence). Reasonable
adjudicators could therefore deny the siblings relief under the Convention.
IV. Substantial evidence supports the immigration judge’s decision to reject Heidy and Cirilo’s
claims for relief. We therefore DENY their petition for review.
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