Ajanel-Gonzalez v. Sessions, 15-3245
| Decision Date | 07 April 2017 |
| Docket Number | No. 15-3245,15-3245 |
| Parties | DOMINGO AJANEL-GONZALEZ, Petitioner, v. JEFF B. SESSIONS, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0207n.06
JULIA SMITH GIBBONS, Circuit Judge. Domingo Ajanel-Gonzalez, a Guatemalan native and citizen, seeks review of a Board of Immigration Appeals (the Board) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because Ajanel-Gonzalez is not eligible for such relief and because he received due process before the immigration judge, we deny his petition.
Domingo Ajanel-Gonzalez is a native and citizen of Guatemala who first came to the United States in January 2001. In July 2008, he received a Notice to Appear, asserting that he was subject to removal under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182, as an alien present in the United States who had not been admitted or paroled. Ajanel-Gonzalez conceded removability, but sought asylum, withholding of removal, and relief under the CAT, or, alternatively, voluntary departure.
At a September 2012 hearing, Ajanel-Gonzalez identified his race (Mayan), nationality (Guatemalan), political opinion ("adverse to joining gangs"), and membership in a particular social group ("[y]oung men who are opposed to joining gangs and are in danger or attacked as a consequence"), as his grounds for relief. AR 112-14. As his attorney, Forhard Sethna, explained these grounds, the immigration judge instructed Sethna not to "argue [his] case" because the judge was asking only that Sethna "identify the various protected characteristics under which [Ajanel-Gonzalez] was claiming asylum."1 AR 113. When Sethna continued to expand on his responses, the judge cut him off. And in response to the identified social group, the judge stated, "Pretty much an S-E-G- particular group, yes?"2 AR 114.
At the hearing, Ajanel-Gonzalez told the judge that he was born in Aldea Chex, Guatemala in 1974 and that he identified as a member of the Mayan race. He left Guatemala in September 2000 and traveled to Mexico, where he lived until he came to the United States in January 2001. Sethna then asked Ajanel-Gonzalez about his children, specifically those living in the United States. The judge interrupted Sethna, stating that such testimony would not help to decide the case and instructing counsel to move on. When asked later about his family, Ajanel-Gonzalez testified that he had several children and two sisters still living in Guatemala.
Ajanel-Gonzalez testified that he had lived in Ohio for the past five years and was employed by the Gerber Company. When Sethna asked additional questions about his employment, the government objected. The judge sustained the objection despite Sethna's explanation that employment was relevant to his client's credibility.
In his testimony, Ajanel-Gonzalez identified two incidents that he believed constituted past persecution. First, he stated that his father was killed by rebel fighters during a civil warwhen Ajanel-Gonzalez was eight years old. This occurred while his father was protecting their village as a member of a civil-defense force. Second, Ajanel-Gonzalez testified about an incident in September 2000 where he was threatened by the Kichechol—a Guatemalan gang. He claimed that gang members approached him, asked him for money, and threatened him with a knife, but that he was able to get away safely and was not injured during the encounter. He did not believe that the police had acted in response to his report about this incident. It was shortly thereafter that Ajanel-Gonzalez left Guatemala.
Ajanel-Gonzalez proceeded to testify that he was scared of being tortured should he return to Guatemala because the gangs are larger than when he left. He believed that he would be kidnapped or killed under the mistaken assumption that living in the United States had made him wealthy. He indicated that these beliefs stemmed, in part, from what his relatives living in Guatemala had told him about gang activity in his village. He also testified that his oldest son in Guatemala was being recruited by gang members and had been asked for money because the gang members believed that Ajanel-Gonzalez was wealthy from living in the United States.
Finally, Ajanel-Gonzalez discussed his delay in filing an application for asylum. He stated that he was not aware of the application and could not read or write in Spanish or English when he arrived in the United States, making it difficult for him to secure legal assistance. At this point, Sethna again asked Ajanel-Gonzalez about his employment. When the government objected, Sethna again argued that he was attempting to buttress Ajanel-Gonzalez's character and credibility. The judge again found that the questions were not relevant, stating:
Well, I think we're talking about nondiscretionary forms of relief here because I don't think the client has shown any exception to the one-year filing deadline. So we're talking about nondiscretionary forms of relief, so I agree, that's not relevant. Sustained.
AR 142. Shortly thereafter, Ajanel-Gonzalez rested his case.
After hearing argument from both parties, the immigration judge denied all relief. The judge found Ajanel-Gonzalez to be a credible witness. With respect to Ajanel-Gonzalez's specific requests for relief, the judge found that his asylum claim was time barred because he did not file within one year of his arrival and because there was no legal support for the proposition that Ajanel-Gonzalez could show extraordinary circumstances because of a language barrier.
The judge also held that even if Ajanel-Gonzalez's application was timely, his claim still failed because he had not established past persecution or a well-founded fear of future persecution. The judge held that the death of his father did not constitute persecution. And even if it did, the judge recognized that there was no nexus between his father's death and Ajanel-Gonzalez's alleged protected characteristics. The judge also held that the attempted robbery was not past persecution. Alternatively, the judge found that there was no evidence to show a nexus between the robbery and one of Ajanel-Gonzalez's claimed protected characteristics. With respect to future persecution, the judge found no evidence to support a well-founded fear of persecution on account of Ajanel-Gonzalez's Mayan ancestry, Guatemalan citizenship, political opinion, or the proposed social group of "young men who are opposed to joining gangs." AR 58-59. Additionally, the judge recognized that although Ajanel-Gonzalez testified about a fear of persecution on account of others perceiving him to be wealthy, such a group was neither identified nor legally cognizable. For these same reasons, the judge held that Ajanel-Gonzalez was not eligible for withholding of removal.
Finally, the judge rejected Ajanel-Gonzalez's request for CAT relief because Ajanel-Gonzalez had not provided any evidence that he would be tortured by, or at the acquiescence of, a public official in Guatemala. The judge noted that Ajanel-Gonzalez's fear of being killed "seem[ed] to be primarily speculation." AR 54.
Ajanel-Gonzalez appealed to the Board. He first argued that his language barrier, age, education, and difficulty acclimating to the United States constituted "exceptional circumstances" that excused his delay in filing an asylum application. Next, he argued that the immigration judge "pre-determined" his asylum claim before he had finished testifying and that the judge cut off counsel more than fifteen times during his testimony. As to his CAT claim, he argued that the judge had discounted his claim of police inaction, erred by dismissing his fear as speculative, and failed to recognize that the Guatemalan government was complicit in torture by private entities. With respect to withholding of removal, Ajanel-Gonzalez argued that he had satisfied the persecution standard "based on a combination of factors."
The Board affirmed. It agreed that Ajanel-Gonzalez's asylum application was not timely and that he had not established an exception to the deadline on account of "profound language barriers." The Board distinguished Matter of Y-C-, 23 I. & N. Dec. 286 (B.I.A. 2002), noting that Ajanel-Gonzalez was significantly older and had waited much longer to file his application.
Alternatively, the Board found that Ajanel-Gonzalez did not qualify for asylum because he had not suffered past persecution and lacked a well-founded fear of future persecution. With respect to past persecution, the Board held that his father's death did not qualify because Ajanel-Gonzalez had not been threatened or harmed. It also found that the attempted robbery did not qualify because Ajanel-Gonzalez was not physically harmed and had escaped. The Board refused to find a likelihood of future persecution because his family had lived in Guatemala without suffering significant harm, the guerillas had disbanded, and a fear of widespread violence was not enough to establish future persecution. Because the Board found that Ajanel-Gonzalez did not qualify for asylum, it also concluded that he could not meet the higher standard for withholding of removal. And the Board rejected his CAT claim, agreeing that he had notshown that it was more likely than not that he would be tortured by the government, or at its acquiescence, upon his return.
Finally, the Board rejected Ajanel-Gonzalez's due process arguments, finding no support in the record for his claim that the immigration judge had predetermined his asylum claim. The Board interpreted the judge's statement as an "honest assessment of the state of the record" and recognized that Ajanel-Gonzalez could have presented further...
To continue reading
Request your trial