The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0006p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
MATEO ALEXANDER MATEO-ESTEBAN,
│
Petitioner, │
> No. 23-3951
│
v. │
│
MERRICK B. GARLAND, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals,
No. A 208 196 601.
Decided and Filed: January 13, 2025
Before: McKEAGUE, GRIFFIN, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Terence G. Hoerman, AMERICAN IMMIGRATION HELP NOW, P.C., Grosse
Pointe Park, Michigan, for Petitioner. Sarah E. Witri, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Mateo Alexander Mateo-Esteban and his father Montejo
entered the United States illegally. Mateo-Esteban applied for asylum, withholding of removal,
and protection under the Convention against Torture (CAT). The immigration judge (IJ) and
Board of Immigration Appeals (BIA or Board) ordered him removed because he had not
established a legally cognizable social group and did not demonstrate that the Guatemalan
government would acquiesce in his torture if he returned. For these same reasons, we DENY the
petition for review.
No. 23-3951 Mateo-Esteban v. Garland Page 2
I.
Mateo-Esteban and his father, Montejo, natives of Guatemala, entered the United States
illegally in 2015. Mateo-Esteban was five years old at the time. The Department of Homeland
Security (DHS) immediately served Montejo personally with a notice to appear (NTA); and
because Montejo had been deported just the year before, DHS reinstated his prior removal order.
DHS also personally served Mateo-Esteban with an NTA charging him with removability.
Mateo-Esteban and Montejo failed to appear at the appointed hearing before an IJ and were
ordered removed in absentia. Three weeks later, Mateo-Esteban’s counsel moved to reopen on
their behalf, claiming a lack of notice. The IJ rejected the motion, but the BIA eventually
granted it. At the reopened hearing before the IJ, Mateo-Esteban and Montejo admitted the
factual allegations contained in the NTA and their removability, but Mateo-Esteban immediately
filed an application for asylum, withholding of removal, and CAT protections since this was his
first entry into the United States. Montejo was permitted to remain in the country while his son’s
claims were pending.
Three years later, Montejo and Mateo-Esteban appeared at their removal, asylum, and
CAT hearing where Montejo testified about the circumstances under which they departed
Guatemala. Montejo testified that, in 2014, he was working at a fruit and vegetable market when
he was approached by suspected gang members who began extorting him for money. The gang
eventually upped its charge and, when Montejo couldn’t pay, the gang members threatened “they
were going to take my son away . . . so as to give me a reason to pay them.” A.R. 7-2, PageID
120. When asked why he didn’t report this to the police, Montejo explained that the police
worked with the gangs, and he was afraid the police would tell the gangs, who would come
looking for him. He did tell an uncle, but he never asked this uncle to help him pay the gangs or
to provide an affidavit in this case. Montejo then took Mateo-Esteban and fled to the United
States. Montejo is not married to Mateo-Esteban’s mother, but the child speaks with her every
weekend. She also has not provided any affidavits in this case.
After Montejo’s testimony, the IJ denied Mateo-Esteban’s application for asylum,
withholding of removal, and CAT protection. The IJ found that Mateo-Esteban’s proposed
social group, “people who are afraid of gangs in Guatemala,” was not legally cognizable and that
No. 23-3951 Mateo-Esteban v. Garland Page 3
he failed to demonstrate that Guatemalan government officials would allow his torture by private
actors if he returned. A.R. 7-2, PageID 4–5, 73–74. In the alternative, the IJ found that
Montejo’s testimony lacked credibility and that he and Mateo-Esteban could have relocated
within Guatemala or Mateo Esteban could have gone to live with his mother. The BIA affirmed
the denial of the asylum and withholding claims on the ground that Mateo-Esteban’s particular
social group was not cognizable. It affirmed the denial of the CAT claim on the ground that
Mateo-Esteban had failed to show a likelihood of government acquiescence in his torture.
Mateo-Esteban timely petitioned this court for review.
II.
“Where, as here, ‘the BIA reviews the [IJ]’s decision and issues a separate opinion, rather
than summarily affirming the [IJ]’s decision, we review the BIA’s decision as the final agency
determination.’” Seldon v. Garland, 120 F.4th 527, 531 (6th Cir. 2024) (quoting Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009). We also consider the IJ’s decision, however, “to the
extent the BIA adopted the immigration judge’s reasoning.” Khalili, 557 F.3d at 435. We
review the BIA’s legal conclusions de novo. Seldon, 120 F. 4th at 531. We review the agency’s
factual findings for “substantial evidence,” meaning that we must treat them as “conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see Seldon, 120 F.4th at 531.
III.
A.
To begin, Mateo-Esteban argues that the IJ and BIA erred in rejecting his claim for
asylum and withholding of removal on the ground that he had failed to show membership in a
legally cognizable particular social group. We disagree.
Non-citizens seeking asylum or withholding of removal must prove that they are
refugees. Federal law defines a refugee in relevant part as someone unable or unwilling to return
to his native country because of past “persecution or a well-founded fear of [future] persecution
on account of . . . membership in a particular social group.” 8 U.S.C. § 1101(a)(42); Umana-
No. 23-3951 Mateo-Esteban v. Garland Page 4
Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013). We review de novo whether a proposed
particular social group is legally cognizable. Turcios-Flores v. Garland, 67 F.4th 347, 354 (6th
Cir. 2023). To prove membership in a legally cognizable social group, the petitioner must show
that his proposed group (1) shares a common immutable characteristic other than the fact that it
is targeted for persecution; (2) is particular and defined with sufficient precision to delimit its
membership; and (3) is socially distinct such that members of the group are perceived as a group
by society. See Umana-Ramos, 724 F.3d at 671. The IJ and BIA concluded that Mateo-
Esteban’s application failed at the second and third prongs.
As a preliminary matter, Mateo-Esteban argues that the IJ and BIA erred by
characterizing the social group he claims to be a part of as “people afraid of gangs in
Guatemala,” when in fact his claimed social group was “minors threatened to be kidnapped by
gangs in Guatemala.” Appellant Br. at 12. But his attorney presented only the former group to
the IJ. When pressed by the IJ about whether he was sure he wanted to define his social group as
“people afraid of gangs,” Mateo-Esteban’s attorney admitted “that is the only social group,
really, that we can really put him under.” A.R. 7-2, PageID 141–42. Despite this admission,
Mateo-Esteban tried to delineate a new social group—“minors threatened to be kidnapped by
gangs in Guatemala”—during his appeal to the BIA. The BIA rejected this attempt, relying on
its decision in Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 192 (B.I.A. 2018).
In W-Y-C-, the BIA noted that an applicant for asylum or withholding of removal “must
clearly indicate on the record before the Immigration Judge” the “exact delineation of any
particular social group(s) to which she claims to belong.” Id. at 191 (citation and internal
quotation omitted). This is “importan[t],” the BIA explained, because the IJ must find multiple
facts that are pegged to the particular social group proposed. Id. Those include “whether the
group is immutable and is recognized as particular and socially distinct” and whether the
applicant can show “membership in that group, and persecution or fear of persecution on account
of” belonging to the group. Id. To avoid the endless remands that would result “if an applicant
is allowed to change the description of her purported social group midstream,” the Board held
that it will not consider on appeal particular social groups that were not first presented to the IJ.
Id. at 190–92 (citation omitted). Because, in this case, Mateo-Esteban did not present the group
No. 23-3951 Mateo-Esteban v. Garland Page 5
“minors threatened to be kidnapped by gangs in Guatemala” to the IJ, the Board refused to
consider it, consistent with its ruling in W-Y-C-.
On appeal in this court, Mateo-Esteban again contends that “in fact” his “particular social
group was minors threatened to be kidnapped by gangs in Guatemala.”1 Appellant Br. at 8. But
the record tells another story. Mateo-Esteban’s counsel expressly acknowledged before the IJ
that, “unfortunately,” “people afraid of gangs in Guatemala” “is the only social group, really, that
we can really put [Mateo-Esteban] under.” A.R. 7-2, PageID 141–42. In light of this
concession, much more than “substantial evidence” supports the BIA’s finding that this was the
lone group Mateo-Esteban presented to the IJ. And Mateo-Esteban does not dispute that the BIA
was legally entitled to treat any newly raised social groups as forfeited. See W-Y-C-, 27 I. & N.
Dec. at 190–91. Nor does he contend that the BIA erred by concluding that the group he did
present to the IJ—“people afraid of gangs in Guatemala”—lacks particularity and social
distinction.
In sum, Mateo-Esteban has not shown that he belongs to a legally cognizable particular
social group. That defeats his claims for asylum and withholding of removal.
B.
Mateo-Esteban next argues that the BIA erred in denying his claim for CAT protection.
We again disagree.
To be eligible for CAT protection, Mateo-Esteban must prove by a preponderance of the
evidence that he will likely face torture in Guatemala and that it will be inflicted “with the
consent or acquiescence of, a public official.” See 8 C.F.R. § 1208.18(a)(1); Vasquez-Rivera v.
Garland, 96 F.4th 903, 911 (6th Cir. 2024). Acquiescence requires that the public official know
of the torture prior to its occurrence and “thereafter breach his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7); Ali v. Reno, 237 F.3d 591, 597
(6th Cir. 2001).
1We do not mean to intimate that this group would have been legally cognizable had it been presented to
the IJ. Because the group was not raised, we take no position on the question.
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Mateo-Esteban relies on two pieces of evidence to support his claim: a portion of the
2018 United Nation’s Human Rights Report discussing the Guatemalan police’s human rights
record, and his father’s testimony about prior gang extortion and threats to kidnap Mateo-
Esteban. This evidence is insufficient to compel the conclusion that a government official would
acquiesce to Mateo-Esteban’s torture upon his return to Guatemala.
The 2018 United Nation’s Human Rights Report does little to assist the CAT claim. At
the hearing, the IJ took judicial notice of this Report because Mateo-Esteban failed to introduce
any evidence of Guatemala’s country conditions. The IJ acknowledged that a “significant crime
problem” still exists in Guatemala. A.R. 7-2, PageID 66. But the Report shows that the
Guatemalan government has invested significant resources to investigate and combat police
misconduct. And when “a country has made meaningful efforts to control private violence but is
still struggling to gain the upper hand, we generally do not say that public officials” have
acquiesced. Sabastian-Andres v. Garland, 96 F.4th 923, 931 (6th Cir. 2024); Chan-Poroj v.
Garland, 2023 WL 3868649, at *4 (6th Cir. June 7, 2023) (rejecting claim that the Guatemalan
government’s inability to control gangs constituted acquiescence). Considering this report, the
BIA reasonably concluded that “while the Guatemalan government may have difficulties
controlling gangs, such difficulties do not amount to acquiescence.” A.R. 7-2, PageID 4.
Montejo’s testimony does not add meaningfully to his claim, certainly not enough that we
would be compelled to reverse the Board’s decision. Montejo testified that, in 2014 and 2015,
gangs extorted him for money and threatened to kidnap his son. But he did not report the
extortion or threatened kidnapping to authorities, a point the IJ noted. We usually treat a failure
to inform authorities “as a signal that the government did not turn a willfully blind eye to the
applicant.” Sabastian-Andres, 96 F. 4th at 931. “After all, if an applicant ‘never told the
government about the threats, the authorities never had a chance to acquiesce in any violence,’
and ‘it is impossible to know how they would have responded to the call of duty.’” Id. (citations
omitted). That said, while a failure to report is “important in our analysis, [it] is not dispositive.”
Id.
Here, Montejo testified that he did not report the threats or extortion because “the
police . . . work together with [the gangs] in my country and I was afraid that they would look for
No. 23-3951 Mateo-Esteban v. Garland Page 7
me.” A.R. 7-2, PageID 121. But Montejo offered no factual foundation to support his
conclusion. And our cases demonstrate that an applicant’s mere belief that the police could not
or would not protect him from gang violence is insufficient to compel the conclusion that the
government would acquiesce in torture, at least where other evidence shows that the government
is taking steps to combat corruption. See Sabastian-Andres, 96 F. 4th at 932; Zaldana Menijar v.
Lynch, 812 F.3d 491, 501–02 (6th Cir. 2015); Lino-Sabio v. Barr, 805 F. App’x 385, 389 (6th
Cir. 2020).
Mateo-Esteban counters that the IJ erred in finding that his father’s testimony was not
credible. But this argument is a red herring. The IJ found that Montejo was not a credible
witness as alternative support for denying Mateo-Esteban’s petition. And the BIA held that,
even assuming Montejo’s testimony was credible, Mateo-Esteban had failed to demonstrate
government acquiescence. We likewise take all the evidence Mateo-Esteban relies on at face
value; even so, it does not compel a finding that the government would acquiesce in his torture
should he return. So his claim for CAT protection fails.
***
We DENY Mateo-Esteban’s petition for review.