Maria Isabel Esquivel Blancas v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 5, 2023
• Docket: 23-3280
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0500n.06

Case No. 23-3280

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Dec 05, 2023 MARIA ISABEL ESQUIVEL BLANCAS; JENIFER VILLEGAS ESQUIVEL, ) KELLY L. STEPHENS, Clerk ) Petitioners, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS Respondent. ) ) OPINION

Before: BOGGS, READLER, and DAVIS, Circuit Judges.

BOGGS, Circuit Judge. Maria Isabel Esquivel Blancas, a native and citizen of Mexico,

petitions this court for review of a decision of Board of Immigration Appeals (BIA) denying her

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

Torture (CAT). See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1208.16. We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

I

In September 2014, Esquivel Blancas and her minor daughter, Jenifer Villegas Esquivel,1

requested admission into the United States. The Department of Homeland Security initiated

removal proceedings against them under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as immigrants who, at the

1 Jenifer Villegas Esquivel, as the minor daughter of Esquivel Blancas, is included in her mother’s asylum and withholding or removal application. See 8 C.F.R. § 1208.3(b)(1). Case No. 23-3280, Esquivel Blancas, et al. v. Garland

time of application for admission, were not in possession of valid entry documents. Esquivel

Blancas, with the assistance of counsel, conceded removability. In April 2015, she filed for asylum

and withholding of removal and protection under CAT based on her membership in a particular

social group, which she later defined as being part of “the family of Esquivel Villegas.”2

At her removal hearing in July 2019, Esquivel Blancas testified that she and her daughter

had lived with Esquivel Blancas’s grandparents in Tuxpan, a rural town in Michoacan, Mexico.

In 2012, two years before she left Mexico, authorities had discovered six large graves filled with

dismembered and burned human remains on land owned by her common-law husband’s father,

Emiliano Villegas, and located fifteen minutes from her grandparents’ home. The clandestine

graves were discovered as a result of military officers capturing two local criminals, El Zarco and

El Vampiro. Villegas did not know that human remains had been buried on his land, and the

authorities did not consider Villegas to be involved with El Zarco and El Vampiro. Regarding the

bodies found in the graves, Esquivel Blancas testified that she did not know who they were or why

they were killed. After the bodies were found, Esquivel Blancas feared that “something was going

to happen” to her and her daughter. However, she testified that neither she nor her daughter were

ever physically harmed or directly threatened while she lived in Mexico.

Esquivel Blancas further testified that two years later, in 2014, unknown “strangers” went

to the home of Elvia Maya, a neighbor and “distant” aunt, and threatened to take Maya’s child.

2 The immigration court refers to the particular social group as the family of “Esquivel Viejas.” In the briefing before this court, petitioner’s counsel also refers to the family name as “Esquivel Viejas.” But the correct family name is “Esquivel Villegas,” as confirmed by the BIA order; the asylum and withholding application filed by Esquivel Blancas; the birth certificates of the children of Esquivel Blancas; and a signed statement from her father-in-law. Our docket correctly lists the daughter’s name as Jenifer Villegas Esquivel. When quoting to the IJ opinion we have replaced “Esquivel Viejas” with “Esquivel Villegas” to correctly reflect the particular social group of Esquivel Blancas’s petition. -2- Case No. 23-3280, Esquivel Blancas, et al. v. Garland

Fortunately, Maya’s child was not kidnapped, and Esquivel Blancas was unaware of any other

children being kidnapped from her hometown. But Esquivel Blancas was scared that her child,

Jenifer, might be kidnapped and so she decided to come to the United States.3 She testified that

she did not relocate within Mexico because “wherever you go down there, it’s all the same.

There’s so much danger from drug traffickers and people who are killing people.” Her

grandparents continue to reside at the same home, her parents and two siblings remain in Tuxpan,

her neighbor Elvia Maya and her child remain in the same area and have not had additional

problems, and Emiliano Villegas remains in Mexico.

The IJ held that “the Esquivel Villegas Family” constituted a cognizable particular social

group but that the record evidence failed to establish that Esquivel Blancas had suffered any past

harm that rose to the level of past persecution based on her membership in that family. While the

IJ found that Esquivel Blancas was a credible, “sincere, candid, and responsive” witness, she held

that Esquivel Blancas “essentially fears being a victim of crime, and she fears something

happening to her children,” but that this fear did not have any nexus to her being a member of the

Esquivel Villegas family. Therefore, the IJ held that Esquivel Blancas did not meet her burden of

proof for asylum, withholding of removal, or CAT. The BIA affirmed without opinion, and

Esquivel Blancas timely filed this petition for review.

II

When the BIA affirms the IJ’s decision without a separate opinion, 8 C.F.R. § 1003.1(e)(4),

we review the IJ’s decision as the final agency decision. See Hassan v. Gonzales, 403 F.3d 429,

433 (6th Cir. 2005). We evaluate factual findings using the substantial-evidence standard. Zhao

3 Her common-law husband, Jose Villegas Maya, had come to the United States to work several years earlier. He had no prior problems in Mexico. -3- Case No. 23-3280, Esquivel Blancas, et al. v. Garland

v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). Such findings are “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Khalili v. Holder, 557 F.3d 429,

435 (6th Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). Under this highly deferential review, we

accept an agency’s findings of fact if they are “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Guzman-Vazquez v. Barr, 959 F.3d 253, 259 (6th

Cir. 2020) (citations omitted). This includes the agency’s finding that the applicant did not

establish a nexus between persecution and a protected ground. Turcios-Flores v. Garland, 67

F.4th 347, 357 (6th Cir. 2023) (citation omitted).

A. Asylum

To be eligible for asylum on the basis of well-founded fear of future persecution, an

applicant must establish that 1) she has a fear of persecution in her country on account of race,

religion, nationality, membership in a particular social group, or political opinion; 2) there is a

“reasonable possibility” of suffering such persecution that if she were to return to her country; and

3) she is unable or unwilling to return to that country because of such fear. Mikhailevitch v. INS,

146 F.3d 384, 389 (6th Cir. 1998). To show membership in a particular social group, an applicant

must show “that the group is (1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially distinct within the society in

question.” Turcios-Flores, 67 F.4th at 357. Here, the IJ recognized Esquivel Blancas’s proposed

social group of “the Esquivel Villegas family” as a cognizable particular social group and this is

not contested on appeal.

Esquivel Blancas must show that she was persecuted “on account of” membership in her

family. 8 U.S.C. § 1101(a)(42)(A). Referred to as a “nexus determination,” she must demonstrate

that her membership in her family served as “one central reason” for her persecution. Turcios-

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Flores, 67 F.4th at 357. While “persecution” is not statutorily defined, this court has held that

persecution “requires more than a few isolated incidents of verbal harassment or intimidation,

unaccompanied by any physical punishment, infliction of harm, or significant deprivation of

liberty.” Mikhailevitch, 146 F.3d at 390. If past persecution is established, it creates a rebuttable

presumption that an applicant faces a well-founded fear of future persecution. 8 C.F.R.

§ 1208.13(b)(1). Here the IJ held that there was no evidence of any past persecution. This finding

is supported by substantial evidence, as the discovery of clandestine graves on her father-in-law’s

land and the fact that her neighbor was threatened by strangers do not establish harm to Esquivel

Blancas. Nothing compels this court to conclude otherwise, as Esquivel Blancas has not presented

any other evidence that that she suffered past persecution.

Absent past persecution, an asylum applicant must establish that she has a well-founded

fear of future persecution that is both “subjectively genuine and objectively reasonable.” Stserba

v. Holder, 646 F.3d 964, 972 (6th Cir. 2011) (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 623

(2004)). While the IJ had “no doubt [that Esquivel Blancas] has a subjective fear of returning to

Mexico,” she held that “there was no evidence based on respondent’s testimony and other evidence

in the record that her fear of harm is tied to her family relationship.” Esquivel Blancas has

presented no evidence that her fears of criminals, who dumped bodies in clandestine graves, and

strangers, who threatened a neighbor who was also a distant relative, are related to membership in

her family. Lacking any such proof, Esquivel Blancas has failed to meet the nexus requirement

that her fear of future harm in Mexico was objectively related to membership in her family.

B. Withholding of Removal

To establish entitlement to withholding of removal, an applicant must show that there is a

“clear probability” that she will be persecuted if forced to return to her country, and that the

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persecution would be “on account of race, religion, nationality, membership in a particular social

group, or political opinion.” Umaña-Ramos v. Holder, 724 F.3d 667, 674 (6th Cir. 2013) (quoting

8 U.S.C. § 1231(b)(3)(A)). Importantly, “[t]he ‘clear probability’ standard asks more of the

applicant than the ‘reasonable possibility’ standard for obtaining asylum.” Pablo-Sanchez v.

Holder, 600 F.3d 592, 594 (6th Cir. 2010) (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 623

(2004). Since Esquivel Blancas is not eligible for asylum, it follows that she cannot meet the

higher standard of withholding or removal. Mikhailevitch, 146 F.3d at 391.

C. Convention Against Torture

To succeed on a CAT claim, an applicant must prove that it is “more likely than not” that

she will be tortured if removed to her native country. Shkulaku-Purballori v. Mukasey, 514 F.3d

499, 503 (6th Cir. 2007). “Torture” is defined as “the intentional infliction of severe mental or

physical pain upon an individual ‘by or at the instigation of or with the consent or acquiescence of

a public official or other person acting in an official capacity.’” Alhaj v. Holder, 576 F.3d 533,

539 (6th Cir. 2009) (quoting 8 C.F.R. § 208.18(a)(1)). Esquivel Blancas is not entitled to relief

under CAT as she failed to present any evidence that it is more likely than not that she would be

tortured by, with the consent or acquiescence of, or with the willful blindness, of the government

of Mexico.

III

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

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