Cano v. Barr
| Decision Date | 23 April 2020 |
| Docket Number | No. 19-1506,19-1506 |
| Citation | 956 F.3d 1034 |
| Parties | Elvira Meza CANO, Petitioner v. William P. BARR, Attorney General of United States, Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy E. Wichmer, Wichmer & Groneck, Saint Louis, MO, for Petitioner.
Raya Jarawan, Carl H. McIntyre, Anthony Cardozo Payne, Assistant Director, Colette Jabes Winston, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.
Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
Elvira Meza Cano (Meza) petitions for review of an order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) denial of her applications for asylum, withholding of removal under the Immigration and Nationality Act, and protection under the Convention Against Torture (CAT). Having jurisdiction under 8 U.S.C. § 1252, we deny the petition.
Meza, a native and citizen of Mexico, entered the United States at the San Ysidro, California port of entry on or about September 18, 2014. On October 30, 2014, the Department of Homeland Security initiated removal proceedings against Meza, charging her as removable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) (). Meza conceded that she was removable as charged, but applied for relief from removal in the forms of asylum, withholding of removal, and protection under the CAT.
In a hearing before an IJ, Meza claimed that she feared persecution in Mexico due to her membership in a particular social group consisting of "immediate family members of Alberto Jorge Gonzalez Meza," her son. Meza testified that she was visiting Alberto at his home in Actopan, Mexico in August 2014 when five or six men entered the home. The men were wearing ski masks and dark colored clothing, which Meza thought looked blue. She could not tell if the men "were wearing uniforms or not." The men proceeded to beat Alberto and demand money from him. Meza tried to intervene, but one of the men pushed her back into a bedroom, pointed a gun at her, and yelled at her to "get back in there or the same thing [wa]s going to happen to [her]." As the men continued to beat Alberto, Meza heard them exclaim that members of the Zeta drug cartel "were nothing" and that a drug cartel called "the Gulfos were now in charge." The men dragged Alberto out of the house, and Meza heard a truck or van drive away. Before leaving, the men stole "anything of value" from the house, including laptops, phones, and televisions.
The next morning, Meza visited her nephew who works at the "municipal house" where the President1 of Actopan also works. Meza told her nephew about the incident, and he suggested that she file a police report. Meza explained to him that she did not want to file a police report because the kidnappers threatened to kill her if she went to the police. Later that day, Meza was searching the town for her son when an anonymous person called Alberto’s phone and alerted Meza to a specific location where she could find Alberto. Meza went to that location, but Alberto was not there. A few days later, Meza discovered that her son had died and that his body was at the morgue. The morgue officials informed Meza that she would need to file a police report in order to remove Alberto’s body. Meza told them that she would not file a police report because she would be killed. She turned to her nephew for help, and he suggested that she contact the President. With the President’s help, Meza was able to remove Alberto’s body from the morgue without filing a police report.
Meza testified that, although the kidnappers had identified themselves as members of the Gulfo Cartel, she believed that they were actually rogue police officers who were working with the Zeta Cartel. She explained that Actopan is controlled by the Zetas, and that the Gulfos would be killed if they entered the area. Meza also testified that she believes the President and the police are Zetas and, thus, she never told the President or the police about the men who kidnapped her son. She explained that her belief is based on "all of the rumors that people hear" and "the things that go on in town." Additionally, she noted that prior to Alberto’s kidnapping, there had been an incident in which the President brought a "foreigner" to Alberto’s previous house. The "foreigner," a man from outside of town, told Alberto that his "boss" liked Alberto’s house and then threatened Alberto with a gun. Alberto left the house out of fear, and the "foreigner" threw an envelope with a small amount of money at Alberto. According to Meza, "the Zeta" boss then moved into Alberto’s house.
Thereafter, Alberto rented another home and set up a motorcycle workshop. Meza testified that "messengers" began extorting Alberto. They would show up to his workshop and tell him that "the boss" wanted him to repair their motorcycles. Alberto would fix the motorcycles for free because he believed they would kill him if he refused. Meza testified that just a few days before the kidnapping, she was at Alberto’s workshop when a white truck pulled up. The men in the truck started talking to Alberto and Meza heard Alberto yell, When the men left, Alberto told Meza that the men in the truck were "now going to fuck with him."
Meza testified that she does not believe anything has changed in Actopan since she came to the United States, and she does not think anyone has investigated Alberto’s death. Meza also stated that she has siblings, aunts, and uncles who continue to live in Actopan. While none of Meza’s family members in Actopan have received any threats, some of them have been contacted regarding Meza’s whereabouts. Meza’s sister, Esperanza, informed Meza that she received anonymous calls asking for Meza’s location. Meza’s aunt informed her that a group of men in a van had asked about Meza’s whereabouts. Additionally, prior to entering the United States, Meza visited her cousin at his home in Tijuana.
After Meza left, unidentified men came to her cousin’s house looking for Meza.
Meza testified that she is unsure if the people looking for her are Zetas, but she believes that no one else would have a reason to search for her. Further, Meza testified that she does not believe that she could safely move anywhere else in Mexico, because the Zetas could be located anywhere in the country. She believes the Zetas would be able to find her and that they would kill her. Finally, Meza does not believe that the Mexican police or government would protect her, or that they want to protect her. She stated that, in addition to the President and police, "the government itself is the Zetas."
The IJ denied Meza’s applications for asylum, withholding of removal, and protection under the CAT. As to her requests for asylum and withholding of removal, the IJ found that Meza did not endure past persecution because she did not suffer harm rising to the level of persecution or show that the Mexican government condoned or was unable or unwilling to control the conduct of the alleged persecutors. Further, the IJ found that Meza did not demonstrate a well-founded fear of future persecution because she did not show that such a fear is objectively reasonable or that she could not avoid the feared persecution by relocating in Mexico. As to her request for protection under the CAT, the IJ found that Meza did not suffer past torture, that she could avoid the possibility of torture by relocating, and that she did not show that a public official would acquiesce in her torture by a cartel. The BIA affirmed the IJ’s decision. This appeal follows.
"We review the BIA’s decision, as it is the final agency decision; however, to the extent that the BIA adopted the findings or the reasoning of the IJ, we also review the IJ’s decision as part of the final agency action." Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir. 2008). We review questions of law de novo, and we review the agency’s factual determinations, including its decision that an applicant has failed to establish eligibility for asylum, withholding of removal, or CAT relief, under the substantial evidence standard. De Castro-Gutierrez v. Holder, 713 F.3d 375, 379 (8th Cir. 2013) ; see Al Yatim v. Mukasey, 531 F.3d 584, 587 (8th Cir. 2008) (). Under this "extremely deferential standard of review[,] ... this court will not reverse the agency’s decision unless the petitioner demonstrates that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner." Mejia-Ramos v. Barr, 934 F.3d 789, 792 (8th Cir. 2019) (internal citation and quotation marks omitted).
To establish eligibility for asylum, Meza must show that she is a "refugee," meaning that she "is unable or unwilling to return to, and is unable or unwilling to avail ... herself of the protection of, [Mexico] because of persecution or a well-founded fear of persecution on account of ... [her] membership in a particular social group" consisting of Alberto’s immediate family. 8 U.S.C. § 1101(a)(42)(A). To obtain withholding of removal, Meza must demonstrate "a clear probability that [her] life or freedom would be threatened on the basis of [her membership in a particular social group consisting of Alberto’s immediate family] if removed to [Mexico.]" Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir. 2008). Entitlement to withholding of removal requires an even greater showing than a claim of asylum. Id.
Meza first argues that the BIA erred in finding that she did not suffer past persecution in...
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