Antonio v. Barr

• Decision Date: 19 May 2020
• Docket Number: No. 18-3500,18-3500
• Citation: 959 F.3d 778
• Parties: Maria Magdalena JUAN ANTONIO, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

959 F.3d 778

Maria Magdalena JUAN ANTONIO, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-3500

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 19, 2020

JULIA SMITH GIBBONS, Circuit Judge.

Maria Magdalena Juan Antonio,¹ a native and citizen of Guatemala, appeals from the Board of Immigration Appeals’ (the "Board") denial of her application for asylum and withholding of removal. In its denial, the Board found that Maria articulated a cognizable particular social group and that the harm she suffered rose to the level of past persecution. It then concluded, however, that the government effectively rebutted her well-founded fear of future persecution by showing changed circumstances: that she was no longer part of her articulated social group and that she could reasonably relocate within Guatemala. On appeal, Maria argues that the Board’s conclusion was not supported by substantial evidence on the record as a whole. We agree with Maria. Therefore, we grant the petition for review, vacate the Board’s decision, and remand for reconsideration consistent with this opinion.

I.

Maria is a 33-year-old native and citizen of Guatemala. She was born in Aldea Village in Quetzal Huehuetenango. She is a member of a Mayan indigenous group in Guatemala. Her native language is Kanjobal and she wears clothing distinct to Mayans. She never attended school and cannot read or write. Maria currently lives in Nashville, Tennessee, where she works at a hotel.

Maria is married to Juan Cano Lorenzo, who is also Mayan and currently resides in Guatemala. They have been married for eighteen years. They have four children together—the older two were born in Guatemala and the younger two were born in the United States. Their children, Sophia, Huberto, Maura, and Maria Floridalma, are ages seven, twelve, sixteen, and eighteen, respectively. Huberto is autistic and cannot speak. Sophia and Huberto reside with Maria in Nashville.

Maria’s application for asylum and withholding of removal stems from domestic violence suffered at the hands of her husband. This abuse arose within the broader context of systemic violence, harassment, and subordination of indigenous Mayan women in Guatemala. The larger societal context will be discussed below.

Six months after Maria and Juan were married, Juan began to physically abuse her. Juan would take Maria to the fields to plant crops with him, even while she was pregnant. At times when she could not work or needed to take a break, he would kick and hit her. He also began raping her, as often as four or five times in one night. The rape has continued throughout the course of their marriage.

In April 2005, Juan took Maria to the United States with him. They left their two children with Maria’s mother in Guatemala. They resided in Detroit, Michigan, where Maria worked at a plate factory and Juan worked at a "card fabric" [sic] company. While in Detroit, Juan continued to beat and rape Maria. Claiming he was "the one in charge," he also took Maria’s paychecks from the plate factory, giving her only five dollars a week "to buy a soda at work or something like that." AR 167, Immigration Ct. Tr. On several occasions, he told her "that he would kill [her]" and that "[i]f [she] call[ed] the police, [he would] kill [her] and throw [her] body out in the trash so that no one will ever find [her]." AR 332, I-589 Appl. Maria did not report Juan’s abuse to the police because she feared that the police would report her to immigration officials. Their two younger children, Huberto and Sophia, were born in Detroit in 2006 and 2011. Sophia was born out of rape. Huberto, who is autistic, is nonverbal and "needs to be watched ... all the time." AR 170, Immigration Ct. Tr.

In April 2012, Juan forced Maria and their children to move back to Guatemala with him. Upon moving, Juan "cleared out [their] bank account and sent all the money [Maria] had earned to his father." AR 332, I-589 Appl. For the first two months back, they, along with all four children, lived with Maria’s parents. During this two-month period, Juan did not beat or rape Maria. As soon as they moved out of her parents’ home, however, the abuse resumed. Juan "became violent again, beating [her] nearly every day." Id. In April 2013, Juan tried to rape their oldest daughter, Maria Floridalma. When Maria intervened to stop him, he threw a chair at her and told her that "he would kill [her] if [she] did not leave." Id. Maria and her brother called the police for help, but the police never came. This was one of two occasions in which the police did not respond to Maria’s calls regarding Juan.

In April 2013, Maria and her brother succeeded in getting Juan to move out of the house. Juan moved in with another woman, Lucia, about three or four blocks down the street, and Maria obtained a restraining order against Juan. But Juan "did not obey because there [was] no police" and "[h]e wasn’t afraid" of any consequences. AR 180, Immigration Ct. Tr. At some time that year, Juan came to Maria’s home and beat up their oldest child, whipping her with his belt. Maria went to the police station to file a complaint, but the police never investigated the crime. AR 332, I-589 Appl. As a consequence of violating the restraining order, however, the town’s mayor summoned Juan to court and a judge imposed a fine of about $200. Since then, the courthouse has been destroyed and the judge who imposed the fine has left town.

Throughout the course of the year, Juan did not physically harm Maria but continued to threaten that he would kill her. Maria testified that "he threatened that he was going to kill me, and if not[,] that he would pay someone to do something." AR 188, Immigration Ct. Tr. Juan’s girlfriend also "began threatening [Maria] about once a week, yelling at [her] ... that she and Juan would kill [her] if [she] didn’t move out of the house." AR 332, I-589 Appl. In May 2014, Juan’s sister told Maria that "Juan had bought a gun and planned to kill [Maria]." Id. at 333.

Terrified, Maria left Guatemala in June 2014 with her two youngest children. They entered the United States through Texas. Upon crossing, they were detained by border patrol agents for three days and then released to live in Aberdeen, Texas with Maria’s friend and his son. On October 31, 2014, the Department of Homeland Security ("DHS") issued a Notice to Appear.

Since their 2014 return, Maria and her two youngest children have not left the United States. Maria has learned from her father, who contacted a local judge, that "Juan has submitted a petition to try to locate [her] and order [her] to return to Guatemala." Id. at 326. She believes that "he wants [her] to return to Guatemala so that he can kill [her]." Id. Since re-entering the United States, Maria has initiated divorce proceedings against Juan, but they have proved unsuccessful so far. Juan will not agree to a divorce unless Maria cedes custody of her children to him. Maria is unwilling to do so.

In June 2015, Maria filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. She sought protection as part of the particular social group of "married indigenous women in Guatemala who are unable to leave their relationship." AR 65, Immigration Ct. Order. Maria "fear[s] being tortured by [her] husband if he finds [her]." AR 327, I-589 Appl. He "has told [her] that he has friends who are gang members, and [she] also fear[s] being tortured by them," as the gangs in Guatemala, such as the Mara Salvatrucha, "are known for torturing people." Id. Maria’s fears are exacerbated because she does not believe the police will help her based on her indigenous status. She has explained that "Mayans are treated as second-class citizens because [their] native language is not Spanish and [they] wear traditional clothing" and that she "believe[s] the police will not take [her] case seriously because [she] is indigenous." Id. at 326.

In her application, Maria submitted secondary materials to corroborate her description of the conditions in Guatemala. All supplemental evidence was admitted into the record without objection. The included materials explain that gender-based violence "perpetrated by husbands, boyfriends, male relatives, bosses, and strangers" is at "epidemic levels," and that this is especially true for indigenous Mayan groups. AR 274–75, Guatemala Struggles to Protect Women Against Endemic Violence. One article noted that "[w]hile the armed conflict which ravaged the country officially ended almost ten years ago, the violence against indigenous women has continued at an alarmingly high rate" and that this often comes in the form of "domestic violence against Guatemala women." AR 444–45, From War to Home: An Examination of the Violence Perpetrated Against Indigenous Women in Guatemala and the Remedies Indigenous Women Demand. As a result of this distinct brand of violence, Guatemala became the first country to officially recognize femicide—the murder of women because of their gender—as a crime. In 2015, the BBC reported that Guatemala has the third highest femicide rate in the world which stems from "a culture of violence toward women and an expectation of impunity, which still persists today." AR 280, Where Women Are Killed by Their Own Families.

While the government has taken some steps to combat this violence—for example, the law now criminalizes domestic abuse—conditions are still stark. The United Nations Refugee Agency has reported that "the systemic marginalization of indigenous communities ... continues with no meaningful efforts by the government to overcome it." AR 285, State of the World’s Minorities and Indigenous Peoples 2015—Guatemala. In 2016, the United States Bureau of Democracy, Human Rights and Labor reported that the "[p]olice [have] minimal training or capacity to investigate sexual crimes or assist survivors of such crimes" and that the "government [does] not enforce the law...