Lopez v. Garland
| Docket Number | 23-3125 |
| Decision Date | 02 November 2023 |
| Parties | VERONICA MENDEZ LOPEZ; JUAN RAYMUNDO AILON, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
On Petition for Review of a Final Order of the Board of Immigration Appeals
Before: Moore, Readler, and Murphy, Circuit Judges.
Petitioner Veronica Mendez Lopez petitions for review of the Board of Immigration Appeals' denial of her application for asylum and withholding of removal under the Immigration and Nationality Act. Rider Petitioner Juan Raymundo Ailon petitions for review of the Board's denial of his application for withholding of removal under the INA. Because the Board relied on substantial evidence in finding that Mendez Lopez failed to show that the Guatemalan government was unable or unwilling to control her alleged persecutors the Board correctly denied her application for asylum and withholding of removal. Because the Board relied on substantial evidence in finding that Raymundo Ailon failed to show a nexus between his alleged persecution and protected grounds, the Board also correctly denied his application for withholding of removal. Accordingly, we DENY the petition for review.
Petitioner Veronica Mendez Lopez is a native and citizen of Guatemala. A.R. at 1222 (Mendez Lopez Not. to Appear). She entered the United States on or about June 12, 2000, and was not admitted or paroled by an immigration officer. Id. On August 17, 2000, Mendez Lopez's father filed an application for asylum and included Mendez Lopez on his application for relief as the unmarried child of an asylum applicant.[1] A.R. at 432, 456 (Cristobal Mendez Asylum App.); A.R. at 62 (IJ Dec. at 1). Mendez Lopez married Rider Petitioner Juan Raymundo Ailon in September 2004, eliminating her from her father's asylum application. A.R. at 779 (Mendez Lopez Asylum App.). On February 9, 2005, Mendez Lopez filed her own application for asylum and withholding of removal, including her husband, Raymundo Ailon, as a derivative applicant. Id.; A.R. at 63 (IJ Dec. at 2). She later filed a revised application seeking asylum and withholding of removal under the INA as well as protection under the Convention Against Torture, again including her husband as a derivative applicant. A.R. at 778 (Mendez Lopez Asylum App.). Raymundo Ailon is a native and citizen of Guatemala who entered the United States on or about September 11, 2001, and was not admitted or paroled by an immigration officer. A.R. at 1480 (Raymundo Ailon Not. to Appear).
On March 19, 2005, the Department of Homeland Security initiated removal proceedings against Mendez Lopez by serving her with a Notice to Appear. A.R. at 1222 (Mendez Lopez Not. to Appear). On April 11, 2013, Mendez Lopez's hearing commenced. A.R. at 184 (Apr. 11, 2013 Hr'g Tr.). Raymundo Ailon filed his own application for asylum and withholding of removal, including Mendez Lopez on his application, on March 23, 2017.[2] A.R. at 1276 (Raymundo Ailon Asylum App.); A.R. at 63 (IJ Dec. at 2).
The second day of Mendez Lopez's hearing in front of an immigration judge did not take place until September 2, 2020, over seven years after her hearing commenced. A.R. at 296 (Sept. 2, 2020 Hr'g Tr.). Over the two days of hearings in 2013 and 2020, two different immigration judges heard testimony from Mendez Lopez, Raymundo Ailon, and Mendez Lopez's father. A.R. at 184 (Apr. 11, 2013 Hr'g Tr.); A.R. at 296 (Sept. 2, 2020 Hr'g Tr.). In front of the immigration judges, Mendez Lopez claimed eligibility for asylum, withholding of removal, protection under CAT, and, in the alternative, voluntary departure, based on her membership in three particular social groups: (1) "member of indigenous group Aguacateco," (2) "family member of a member of the civil patrol of the Guatemalan army," and (3) "family members of her father." A.R. at 3 (BIA Dec. at 1) (citation omitted). She also claimed eligibility based on an actual political opinion of "opposition to membership in organized gang activity" and the "imputed political opinions of her father." Id. Raymundo Ailon claimed eligibility for withholding of removal based on his membership in two particular social groups: (1) "family members of Guatemalan army supporter during the Civil War," and (2) family members of Mendez Lopez's father. A.R. at 6 (BIA Dec. at 4). Raymundo Ailon also claimed eligibility based on his political opinion: "opposition to membership in organized gang activity." Id.
On December 21, 2020, Immigration Judge Teresa Riley denied Mendez Lopez and Raymundo Ailon's application for asylum, withholding of removal, and CAT protection. A.R. at 62-92 (IJ Dec.).
The Petitioners appealed (1) the denial of Mendez Lopez's asylum claim, (2) the denial of Mendez Lopez's application for withholding of removal, and (3) the denial of Raymundo Ailon's application for withholding of removal. A.R. at 3, 7 (BIA Dec. at 1, 5). On January 12, 2023, in a single-judge order, the Board of Immigration Appeals dismissed their appeal. Id.
Mendez Lopez's father was a member of the civil patrol of the Guatemalan army and an opponent of the guerillas during the Guatemalan civil war. A.R. at 66 (IJ Dec. at 5); A.R. at 434 (Cristobal Mendez Asylum App.). During and following the civil war in the 1980s and early 1990s, the guerillas regularly approached Mendez Lopez's father to get him to work with them and, upon his refusal, they "threatened him eight to ten times and he was afraid they would kill him." A.R. at 66 (IJ Dec. at 5). Additionally, the guerillas carried a list of names of army supporters, some of whom they killed. Id. Mendez Lopez's father was on the list. Id. After facing these threats as well as finding dead bodies-killed by the guerillas-Mendez Lopez's father changed his and his daughter's names and moved his family to another area within Guatemala to attempt to avoid the guerillas. A.R. at 65-66 (IJ Dec. at 4-5).
After Mendez Lopez-then a child-and her family moved to a new village, the guerillas continued approaching her father and bringing the list of names to her family. A.R. at 66-67 (IJ Dec. at 5-6). By that point, Mendez Lopez's father went by a new name to try to avoid the guerillas. A.R. at 220 (Apr. 11, 2013 Hr'g Tr. at 79). Her father also legally changed Mendez Lopez's name. A.R. at 220-21 (Apr. 11, 2013 Hr'g Tr. at 79-80). Although Mendez Lopez does not recall how old she was when her name was changed, she does recall that someone from the municipal government helped her change her name. A.R. at 286 (Apr. 11, 2013 Hr'g Tr. at 145). See also A.R. at 241 (Apr. 11, 2013 Hr'g Tr. at 100).
In 1991, fearing for his life, Mendez Lopez's father fled Guatemala and entered the United States. A.R. at 65 (IJ Dec. at 4). Following her father's departure, gang members turned their attention to Mendez Lopez. A.R. at 68-69 (IJ Dec. at 7-8). From the time she was a child, Mendez Lopez was regularly harassed and threatened by gang members. Id.; A.R. at 537 (Maria Lopez Lopez Aff.). The gang members would demand she join their gang and, when she refused, they threatened to kill her. A.R. at 69 (IJ Dec. at 8). On two occasions, a group of men physically attacked her. A.R. at 68-69 (IJ Dec. at 7-8); A.R. at 790 (Mendez Lopez Asylum App.). Mendez Lopez did not need medical attention on either occasion and did not contact the police about the attacks. A.R. at 68-69 (IJ Dec. at 7-8). The harassment and threats were ongoing until she fled Guatemala, fearing that the gang members would carry out their threats on her life. Id.
Raymundo Ailon, like Mendez Lopez, faced harassment, threats, and physical violence from gang members in Guatemala. A.R. at 70 (IJ Dec. at 9). From the time Raymundo Ailon was a young teenager until the time he fled to the United States, gangs would approach him, threaten him, and beat him up approximately twice a week, every week. Id. See also A.R. at 340-41 (Sept. 2, 2020 Hr'g Tr. at 198-99). Although Raymundo Ailon moved to various places within Guatemala, the gang members continued to find him. A.R. at 342 (Sept. 2, 2020 Hr'g Tr. at 200). He never reported the incidents to the police "because any time someone goes to the police, it's even worse, and then even if they pick them up, they will release them right away, and then there's more problems for us." A.R. at 343 (Sept. 2, 2020 Hr'g Tr. at 201). Fearing for his life, Raymundo Ailon fled Guatemala in 2001. Id.
We have jurisdiction under 8 U.S.C. § 1252 to review the Board of Immigration Appeals' final determination ordering removal. Umana-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013). When the BIA issues its own decision rather than summarily affirming the IJ, we review the BIA decision as the final agency decision. Id. We review the immigration judge's decision to the extent that the BIA adopted the IJ's reasoning. Id. We review factual findings under the substantial-evidence standard and review questions of law de novo. Id. Under the substantial-evidence standard, "we will not reverse a factual determination . . . unless we find 'that the evidence not only supports a contrary conclusion, but compels it.'" Ceraj v. Mukasey 511 F.3d 583, 588 (6th Cir. 2007) (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)) (emphasis in original); 8 U.S.C. § 1252(b)(4)(B). We uphold the "BIA determination as long as it is 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) (quoting Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008)). Because the IJ...
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