Maria Gallegos-Alvarez v. Jefferson Sessions, III

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 2, 2018
• Docket: 18-3106
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0490n.06

Case No. 18-3106

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 02, 2018 MARIA DE LA LUZ GALLEGOS-ALVAREZ; ) DEBORAH S. HUNT, Clerk JOVANI JIMENEZ-GALLEGOS; MARIO ) EZEQUIEL GALLEGOS ALVAREZ, ) ) ON PETITION FOR REVIEW Petitioners, ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION v. ) APPEALS ) JEFFERSON B. SESSIONS, III, Attorney ) General, ) ) OPINION Respondent. )

BEFORE: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.

COLE, Chief Judge. Maria De La Luz Gallegos-Alvarez, a forty-year-old native and

citizen of Mexico, entered the United States without inspection in February 2014, along with her

adult son Mario and minor son Jovani. The Gallegos family1 now petitions for review of a decision

by the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of their

applications for asylum, request for withholding of removal, and protection under the Convention

Against Torture (“CAT”). The BIA found that Maria Gallegos-Alvarez (“Gallegos”) had not

1 Maria Gallegos-Alvarez’s minor son, Jovani, is a derivative beneficiary of his mother’s asylum application. See Akhtar v. Gonzales, 406 F.3d 399, 406 (6th Cir. 2005) (“Under 8 U.S.C. § 1158(b)(3)(A), a ‘child’ accompanying, or following to join, a parent who is granted asylum may be granted derivative asylum by virtue of his or her parent’s status as a refugee.”). Mario, on the other hand, filed a separate asylum application “based on incidents that happened to his mother” and “fear[ed] persecution on account of his relationship to his mother.” Mario and his mother’s cases were consolidated, so for ease of reference, the court will refer only to Maria Gallegos-Alvarez’s petition. Case No. 18-3106, Gallegos-Alvarez v. Sessions

shown that she had a well-founded fear of persecution based on the fact that she was an honest

former law enforcement agent who would not return to work. Because the BIA’s decision was

supported by substantial evidence, we deny Gallegos’s petition for review.

I. BACKGROUND

A. Factual Background

Gallegos was born in Mexico in 1977. Between 2005 and 2012, Gallegos and her two sons

lived in the United States without lawful status, but returned to their hometown in Jalisco, Mexico

in 2012. After returning to Jalisco, Gallegos joined the local police force in January 2013.

According to Gallegos, she observed wide-spread corruption during her time as a police officer.

On one occasion, Gallegos was involved in the arrest of an individual who “was in possession of

a firearm of high caliber.” Gallegos learned that the individual was a man who worked for “Fidel,”

the leader of a narco-trafficking gang known as La Plaza. Shortly after the man’s arrest, Fidel

spoke with the head of the police force, Edward Navarro, who released the man to Fidel in

exchange for 3500 pesos.

On another occasion, while on-duty and providing security at a dance ranch, Gallegos’s

partner, Officer Refugio, introduced her to Fidel. Gallegos testified that during the course of this

conversation, Fidel and Officer Refugio plotted to have another officer, David Prieto, assassinated

for his refusal to work with the gang. During the conversation, Gallegos was not threatened at any

time. Gallegos resigned from the police force effective October 2013, “due to stress.”

In January 2014, Officer Florentino contacted Gallegos about returning to the police force.

Gallegos believed Officer Florentino worked for Fidel because people “always said so.” In her

declaration, Gallegos stated that “she knew the real reason why they wanted me to come back was

because they wanted me as a [sic] informant; inform them about everything that was happening in

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the cabin, reports of soldiers, and calls.” Officer Florentino allegedly reminded Gallegos that she

“knew how the people from ‘la plaza’ were, that they were good when people cooperated, and that

it was better for me to return to the police and that my family was going to be fine.” During her

removal proceedings, however, Gallegos testified that the police department requested her return

because they were “unable to hire another female coworker.” Plus, Gallegos already “knew

everything they had to do there” and she left “with a good image.” Gallegos agreed to return to

work, but several days later, fled to the United States.

During her removal proceedings, Gallegos testified that she left Mexico because she feared

La Plaza would locate her and harm either her or her children. When asked why she could not

have stayed in Mexico, she responded, “[b]ecause I had agreed that I was going to come back and

work with them, and then it will be like I’m laughing at them.” Since entering the United States,

however, Gallegos and her family have received no threats, nor have family members still living

in Mexico been threatened or harmed in any way. To Gallegos’s knowledge, none of her former

colleagues on the police force have been harmed or threatened, including Officer Prieto.

During Gallegos’s proceedings, Dr. Robert Kirkland, director of graduate education at

Colorado State University, testified as an expert. Dr. Kirkland testified that La Plaza was a local

affiliate of the Jalisco New Generation cartel, which he described as “the most powerful cartel in

Jalisco.” Based on a one-hour interview with Gallegos and a review of her declaration, Dr.

Kirkland opined that Gallegos would be in danger upon return to Mexico due to her defiance of

the cartel. But Dr. Kirkland also testified that because Gallegos was not harmed by La Plaza in

the twelve months after she joined the police force, “she may perhaps be less of a person of interest

because they didn’t harm her immediately.”

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B. Immigration Court Decision

On April 11, 2017, an immigration judge (“IJ”) denied Gallegos’s application for asylum,

withholding of removal, and protection under the CAT. (IJ Dec., A.R. 85–110.) The IJ found that

Gallegos “lack[ed] credibility and her testimony alone was unpersuasive as it lacked specificity or

detail in the key elements of her claim.” (Id. at 104.) The IJ did find Dr. Kirkland to be credible,

but noted that he “provided little in the way of information about the cartel’s history of targeting

officers or any policy aimed at taking out honest police officers or those that did not cooperate

during their employment or after they had quit the force.” (Id.) Ultimately, the IJ found that

Gallegos failed to demonstrate past persecution, failed to establish that she would be harmed

because of her status as an honest police officer, and failed to establish that she could not safely

relocate. (Id. at 105–08.)

C. BIA Decision

The BIA, in affirming the IJ’s decision, assumed that Gallegos presented credible

testimony. (BIA Dec., A.R. 4.) The BIA held, however, that Gallegos had not shown she had a

well-founded fear of future persecution2 on account of a statutorily protected basis. (Id.)

Specifically, the BIA found that she had not presented sufficient evidence to show that anyone

would attempt to harm her because she was an honest police officer who would not return to work.

(Id.) In support, the BIA noted that Gallegos was asked to return to work for a legitimate reason—

the police force needed more female officers. (Id. at 4–5.) Moreover, she never provided, nor was

she ever asked to provide, information to La Plaza; she, nor anyone on the police force, had ever

been threatened or harmed by anyone in La Plaza; and she had not received any threats during her

time in the United States. (Id.) Thus, the BIA concluded that Gallegos had not demonstrated a

2 Gallegos did not challenge the IJ’s conclusion that she had not sufficiently demonstrated past persecution in Mexico. (BIA Dec., A.R. 4 n. 3.)

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well-founded fear of persecution based on her membership in the social group of “honest former

police officers.” (Id. at 5.)

The BIA also held that Gallegos failed to show that she would be unable to relocate safely

within Mexico. (Id.) Her family members in Mexico had not been harmed or threatened; she did

not claim that La Plaza had sought her out prior to leaving Mexico; and there was no evidence that

La Plaza was looking for her since her entry into the United States. (Id.) And although Dr.

Kirkland testified that cartel members search for police officers that do not assist them, the BIA

noted that he “did not present evidence regarding whether La Plaza is specifically interested in

[Gallegos] and would search for her throughout Mexico.” (Id.) Accordingly, the BIA found that

relocation would not be unreasonable and upheld the IJ’s denial of Gallegos’s asylum application.

(Id.)

Because Gallegos did not satisfy the lower statutory burden of proof required for asylum,

the BIA held that she also did not satisfy the clear probability standard of eligibility required for

withholding of removal. (Id.) Additionally, with respect to the CAT claim, the BIA found that

Gallegos failed to demonstrate that it is more likely than not that she would be tortured in Mexico

by or with the acquiescence of a public official or other person acting in an official capacity. (Id.

(citing 8 C.F.R. §§ 1208.16(c) and 1208.18(a).))

II. ANALYSIS

A. Standard of Review

“Because the BIA did not summarily affirm or adopt the IJ’s reasoning and provided an

explanation for its decision, we review the BIA’s decision as the final agency determination.”

Young Hee Kwak v. Holder, 607 F.3d 1140, 1143 (6th Cir. 2010) (quoting Ilic-Lee v. Mukasey,

507 F.3d 1044, 1047 (6th Cir. 2007)). We review the BIA’s factual findings under a substantial

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evidence standard, upholding such findings so long as they are supported by “reasonable,

substantial, and probative evidence on the record considered as a whole.” Zhao v. Holder, 569

F.3d 238, 247 (6th Cir. 2009) (citations omitted). “Under this deferential standard, the court may

not reverse the Board’s determination simply because we would have decided the matter

differently.” Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008) (citation omitted).

Administrative findings of fact are “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

B. Asylum Claim

“An applicant for asylum bears the burden of establishing that [she] is a ‘refugee’ as

defined by the INA.” Kukalo v. Holder, 744 F.3d 395, 400 (6th Cir. 2011) (citing 8 U.S.C.

§ 1158(b)(1)(B); Koliada v. I.N.S., 259 F.3d 482, 486–87 (6th Cir. 2001)). An applicant may

establish her status as a refugee by showing that she is “unable or unwilling to return to her 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.’” Allabani v. Gonzales,

402 F.3d 668, 674 (6th Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). “To prove one’s refugee

status, one must present specific facts demonstrating suffering of past persecution or a well-

founded fear of future persecution motivated by one of these five statutorily protected grounds.”

Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). In establishing a well-founded fear

of persecution, “an applicant cannot rely on speculative conclusions or mere assertions of fear of

possible persecution[.]” Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007) (internal

quotation marks and citation omitted); see also Kaba v. Mukasey, 546 F.3d 741, 748 (6th Cir.

2008) (“‘[P]ersecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more than a few

isolated incidents of verbal harassment or intimidation, unaccompanied by any physical

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punishment, infliction of harm, or significant deprivation of liberty.”). An alien’s fear of

persecution must be both subjectively genuine and objectively reasonable. Id.

The ambiguous threat from Officer Florentino, with nothing more, does not support

Gallegos’s fear of future persecution. We assume, as the BIA did, that Gallegos presented credible

testimony regarding her conversation with Officer Florentino. And we assume that her

conversation with Officer Florentino created genuine fear. But aside from that interaction,

Gallegos never had another encounter, let alone a threatening one, with a member of La Plaza or

a coworker assisting the gang. (Hr’g Tr., A.R. 156.) Indeed, Gallegos experienced no physical

harm during her time as a police officer or during the time following her resignation from the

police force. (Id. at 165.) Neither Gallegos, nor her family still living in Mexico, have ever

received any threats from La Plaza. (Id. at 162, 170, 180.) And she cannot point to a single police

officer that has been harmed by La Plaza. (Id. at 163, 166.) Thus, Gallegos fails to show how her

membership as an honest police officer would make her susceptible to conduct that arises to the

level of persecution. See Allabani, 402 F.3d at 674.

Finally, Gallegos’s alleged fear of future persecution “is undermined because she has not

demonstrated that the cause of her fear is countrywide.” Moran-Quinteros v. Holder, 352 F. App’x

974, 979 (6th Cir. 2009) (citing 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does not have a well-

founded fear of persecution if the applicant could avoid persecution by relocating to another part

of the applicant’s country....”)). Again, the record indicates that Gallegos’s extended family

continues to live safely in Mexico. (Hr’g Tr., A.R. 162, 180, 185.) Although Gallegos testified

that she was afraid to relocate because of La Plaza’s connections, she offered no evidence that La

Plaza is currently looking, or will look, for her if she returns. (See id. at 164.) Similarly, Gallegos’s

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son Mario was unable to provide an answer at the removal proceedings as to why he believed La

Plaza would look for them in a different area of Mexico. (See id. at 182.)

Because there is no evidence in the record that any of Gallegos’s family members have

received threats from La Plaza, or any evidence that La Plaza is looking for her at this time, it is

reasonable to expect that Gallegos can safely relocate. See Pascual v. Mukasey, 514 F.3d 483, 489

(6th Cir. 2007). We therefore affirm the decision of the BIA to reject Gallegos’s application for

asylum because the record does not compel a finding of a well-founded fear of future persecution

upon return to Mexico.

C. Withholding of Removal

Gallegos also seeks review of the BIA’s denial of withholding of removal. “To obtain such

relief, a petitioner must show by a ‘clear probability’ that her life or freedom would be threatened

on account of her race, religion, nationality, membership in a particular social group, or political

opinion.” Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (citation omitted). Because

Gallegos fails to meet the lesser standard for asylum, she necessarily fails to meet the “more

stringent requirements” for withholding of removal. See id.; Kaba, 546 F.3d at 751 (“[I]t follows

from [petitioner’s] failure to establish eligibility for asylum that he also cannot satisfy the more

onerous burden for withholding of removal.”). Consequently, we deny Gallegos’s petition for

review regarding her withholding of removal application.

D. Relief under the CAT

Gallegos similarly fails to meet her heavy burden of proof under the CAT. To obtain relief

under the CAT, a petitioner “must prove ‘that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.’” Kukalo, 744 F.3d at 402 (quoting Pilica

v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004)). “Torture is defined as ‘any act by which severe

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pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such

pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.’” Bonilla-Morales v. Holder, 607

F.3d 1132, 1139 (6th Cir. 2010) (quoting 8 C.F.R. § 1208.18(a)(1)). But unlike asylum and

withholding claims, “[n]o protected-ground nexus is required” to qualify for protection under the

CAT. Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010). Accordingly, a petitioner’s inability

to establish an asylum claim does not necessarily preclude relief under the CAT, but “it is not easy

to overcome such a barrier.” Kukalo, 744 F.3d at 402.

The record evidence does not compel a conclusion contrary to the BIA’s holding that

Gallegos failed to demonstrate “that it is more likely than not that she would be tortured in Mexico

by or with the acquiescence of a public official or other person acting in an official capacity.”

(BIA Dec., A.R. 5.) As previously mentioned, Gallegos and her family have never been physically

harmed, let alone tortured, and have received no threats from La Plaza indicating that they may be

harmed upon their return. (See Hr’g Tr., A.R. 162, 165, 170, 180.) Thus, the record supports the

BIA’s conclusion that the petitioners failed to meet the requirements to qualify for protection under

the CAT.

III. Conclusion

For the foregoing reasons, we affirm the BIA’s decision and deny Gallegos’s petition for

review.

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