Ortiz v. Garland

• Decision Date: 28 July 2021
• Docket Number: No. 20-4248,20-4248
• Citation: 6 F.4th 685
• Parties: Anabely Gonzalez ORTIZ; Amir Gonzalez Ortiz, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

6 F.4th 685

Anabely Gonzalez ORTIZ; Amir Gonzalez Ortiz, Petitioners,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-4248

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 28, 2021

ON BRIEF: Sarah C. Larcade, MCKINNEY & NAMEI CO., LPA, Cincinnati, Ohio, for Petitioners. Rodolfo D. Saenz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: COLE, ROGERS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Refugees who fear "persecution" in their home countries may seek asylum in the United States. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Although the immigration laws do not define the word "persecution," the Board of Immigration Appeals and the courts have interpreted this term to have a state-action element: A country's government must either directly inflict harm on an immigrant or be unable or unwilling to control a private party who inflicts the harm. See, e.g. , K. H. v. Barr , 920 F.3d 470, 475 (6th Cir. 2019).

This case concerns this state-action element. Anabely Gonzalez Ortiz fled Guatemala to escape her ex-boyfriend's abuse. The Board denied Gonzalez Ortiz asylum, holding that she failed to show that the Guatemalan government was unable or unwilling to control her abuser. The Board relied in part on a State Department report noting that Guatemala had "taken steps" to curb domestic violence. Gonzalez Ortiz now argues that the Board wrongly refused to reconsider this ruling on the ground that it conflicts with our recent decision in Juan Antonio v. Barr , 959 F.3d 778 (6th Cir. 2020). There, although recognizing that Guatemala had "taken some steps" to combat domestic violence, we still overturned the Board's finding that the country was able to control an immigrant's abusive spouse. Id. at 795. Yet Juan Antonio relied on the totality of the evidence to reject the Board's finding, and our fact-specific rationales in that case do not transfer over to this one. While, for example, the police twice ignored the immigrant's request for assistance in Juan Antonio , Gonzalez Ortiz never asked the authorities for help in this case. Because Gonzalez Ortiz misreads Juan Antonio ’s scope, we deny her petition for review.

I

Gonzalez Ortiz was born and raised in Guatemala. During her childhood and into her early-adult years, she suffered through significant domestic abuse. Starting when she was just five years old, her father would regularly come home drunk and hit her, her mother, and her siblings with a pot, a pan, or anything else lying around the house. He would also regularly threaten to harm or even kill them.

After Gonzalez Ortiz turned twenty, she met her boyfriend, Juan Carlos. A few months into this relationship, she testified, Juan Carlos raped her. She became pregnant. Gonzalez Ortiz was still living with her parents but feared that her pregnancy would aggravate her father's violence. With nowhere else to go, she decided to move in with Juan Carlos. Juan Carlos continued to assault Gonzalez Ortiz regularly during her pregnancy. One time, his abuse compelled her to visit a health clinic to ensure that he had not harmed her unborn child. Clinic records confirm this visit. Juan Carlos was also verbally abusive; he would often belittle Gonzalez Ortiz and threaten further violence.

A few months after Gonzalez Ortiz gave birth to a son, she discovered bruises on her newborn. She suspected that Juan Carlos had hit him. Worried that Juan Carlos would routinely abuse her baby, Gonzalez Ortiz chose to move back in with her parents. Her father had become gravely ill by then, so she no longer feared staying with him. Yet Gonzalez Ortiz continued to fear Juan Carlos, who had threatened to find and kill her if she left him. In October 2016, less than two months after Gonzalez Ortiz returned to her parents, she fled Guatemala altogether to escape Juan Carlos. She and her son arrived in the United States two months later.

The government initiated removal proceedings. Gonzalez Ortiz and her son conceded that they were removable but applied for asylum, withholding of removal, and relief under the Convention Against Torture. During the administrative proceedings, Gonzalez Ortiz and her son abandoned all but their asylum claims. In addition, the parties agree that the asylum claim of Gonzalez Ortiz's son depends on her own asylum claim, so we need not refer to his claim separately.

After a hearing, an immigration judge denied asylum to Gonzalez Ortiz. The Board of Immigration Appeals upheld the immigration judge's denial of relief. About a week after the Board issued its final order, we decided Juan Antonio . Gonzalez Ortiz then filed a motion for reconsideration with the Board, arguing that Juan Antonio changed the relevant asylum law. The Board denied this motion. Gonzalez Ortiz now petitions this court to review the Board's denial of her motion for reconsideration.

II

A

The asylum statute gives the Attorney General discretion to grant asylum to an immigrant who qualifies as a "refugee." See 8 U.S.C. § 1158(b)(1)(A). "Refugee" is defined to include:

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]

Id. § 1101(a)(42)(A). This text requires asylum applicants to prove that they cannot or will not return to their home countries because of "persecution" or a "well-founded fear of persecution" that has arisen or will arise "on account of" certain protected traits. Id. ; see id. § 1158(b)(1)(B)(i).

The immigration laws do not define a key word in the definition of refugee: "persecution." When Congress added the definition in 1980, many courts and the Board had already interpreted "persecution" in related contexts. See Matter of Acosta , 19 I. & N. Dec. 211, 219–23 (B.I.A. 1985) ; Refugee Act of 1980, Pub. L. No. 96-212, § 201(a), 94 Stat. 102, 102. The Board incorporated the "accepted construction" of this word into the refugee definition. Acosta , 19 I. & N. Dec. at 222. This preexisting construction required an immigrant to prove not just that the immigrant had suffered harm but also that the harm was sufficiently tied to a country's government. See id. So the Board held that alleged harm can qualify as "persecution" within the meaning of the refugee definition only if it is inflicted by the government or by private parties that the government is "unable or unwilling to control." Id. Since Acosta , we have frequently cited this test and required asylum applicants who fear private violence to prove that the government is unable or unwilling to control the private party. See, e.g. , K. H. , 920 F.3d at 475 ; Velasquez-Rodriguez v. Whitaker , 762 F. App'x 241, 244–45 (6th Cir. 2019) (per curiam); Khalili v. Holder , 557 F.3d 429, 436 (6th Cir. 2009) ; Patel v. INS , 22 F. App'x 478, 480 (6th Cir. 2001) (per curiam).

Gonzalez Ortiz alleged abuse from one such private party: Juan Carlos. To establish persecution, then, she needed to prove that the Guatemalan government was unable or unwilling to stop Juan Carlos's abuse. The Board gave two reasons why Gonzalez Ortiz had failed to make this showing. Cf. K. H. , 920 F.3d at 476–78. As a specific matter, Gonzalez Ortiz had never reported Juan Carlos's abuse to the authorities and had failed to adequately explain why she had not done so. See Admin. Rec. (A.R.) 148. As a general matter, a State Department report describing the conditions in Guatemala indicated that the government had "taken steps" to curb domestic violence in the country. Id.

We typically review the Board's ultimate finding that an immigrant failed to prove the government's inability or unwillingness to prevent private violence under the substantial-evidence test. See Khalili , 557 F.3d at 436 ; see also Borodachev v. Holder , 441 F. App'x 354, 360–61 (6th Cir. 2011) ; Ralios Morente v. Holder , 401 F. App'x 17, 24 (6th Cir. 2010) ; El Ghorbi v. Mukasey , 281 F. App'x 514, 517 (6th Cir. 2008). But we cannot review the Board's finding at all in this case. That is because Gonzalez Ortiz did not file a timely petition for review from the Board's final order denying her asylum claim. We thus lack jurisdiction over that order. See Wajda v. Holder , 727 F.3d 457, 461–62 (6th Cir. 2013) (citing Stone v. INS , 514 U.S. 386, 405–06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) ).

Instead, Gonzalez Ortiz petitioned for review from the Board's later order denying her motion for reconsideration. See 8 U.S.C. § 1229a(c)(6) ; 8 C.F.R. § 1003.2(b). We review the denial of this type of motion for an abuse of discretion. See Fisenko v. Lynch , 826 F.3d 287, 290 (6th Cir. 2016). That said, Gonzalez Ortiz asserts a legal claim: that the Board misinterpreted Juan Antonio when it found that this decision did not affect her case. The proper meaning of a decision like Juan Antonio raises a question of law that we review without deference to the Board. See Ramos-Torres v. Holder , 637 F.3d 544, 547 (5th Cir. 2011) ; cf. Albertson's Inc. v. NLRB , 301 F.3d 441, 448 (6th Cir. 2002). And the Board abuses its discretion if it commits a legal error by misreading our cases. See Harmon v. Holder , 758 F.3d 728, 732 (6th Cir. 2014).

Gonzalez Ortiz's argument nevertheless fails because she (not the Board) misunderstands Juan Antonio ’s scope. In that case, the Board found that Maria Magdalena Juan Antonio had failed to show that the Guatemalan government was unable or unwilling to protect her from her husband's abuse. 959 F.3d at 793. We held that substantial evidence did not support this finding. Id. at 794–95. Although the government had "taken some steps" to control domestic violence, we reasoned, those steps did not justify the Board's conclusion that the government was...