Anabely Gonzalez Ortiz v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0169p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ANABELY GONZALEZ ORTIZ; AMIR GONZALEZ ORTIZ, │

Petitioners, │

> No. 20-4248

│

v. │

│

MERRICK B. GARLAND, Attorney General, │

│

Respondent.

┘

On Petition for Review from the Board of Immigration Appeals;

Nos. A 206-461-636; A 209-870-758.

Decided and Filed: July 28, 2021

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

_________________

COUNSEL

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.

_________________

OPINION

_________________

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).

No. 20-4248 Gonzalez Ortiz, et al. v. Garland Page 2

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.

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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[.]

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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.

No. 20-4248 Gonzalez Ortiz, et al. v. Garland Page 5

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 (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 able to protect Juan Antonio from her husband. Id. at 795. According to Gonzalez Ortiz,

our language in Juan Antonio created a categorical legal rule that a government must do more

than “take steps” to control domestic violence before the Board may find that the government

was able to do so. And she argues that the Board in her case denied relief on the same

No. 20-4248 Gonzalez Ortiz, et al. v. Garland Page 6

(allegedly) insufficient ground that the Guatemalan government had “taken steps” to stop

domestic violence. A.R. 148.

Yet Juan Antonio did not create the categorical rule that Gonzalez Ortiz finds in it. The

decision itself makes clear that it was far more fact-bound. Juan Antonio repeatedly recognized

that we had to consider “the record as a whole” when reviewing the Board’s finding that the

government was able to control private violence. 959 F.3d at 794 (emphasis added); see id. at

795. We thus relied on the totality of the evidence (not on any categorical rule) to hold that

substantial evidence did not support the Board’s finding. See id. at 794–95.

Our other caselaw confirms that Gonzalez Ortiz misreads Juan Antonio when she

suggests that it barred the Board from relying on the fact that a government has taken “some

steps to combat domestic violence[.]” Pet. Br. 25. Before Juan Antonio, we had already held

that “the ‘unwilling or unable to control’ element” turned on the record as a whole, including

general conditions in the country. K. H., 920 F.3d at 475–76 (citation omitted). Juan Antonio

gave no hint that it meant to depart from this approach. Our subsequent caselaw has reaffirmed

it. When recently upholding the Board’s finding that a Guatemalan immigrant had failed to

establish that her government was unable to protect her from private harm, we pointed out that

the government was “taking steps” to provide this protection. José-Tomás v. Barr, 822 F. App’x

354, 358–59 (6th Cir. 2020).

Read in this proper fact-specific way, Juan Antonio does not help Gonzalez Ortiz. For

one thing, the decision relied heavily on evidence showing that the local police had failed to

respond effectively to Juan Antonio’s requests for protection from her husband and were unable

to control him. See Juan Antonio, 959 F.3d at 794. Unlike Juan Antonio, Gonzalez Ortiz never

reported her boyfriend’s abuse to the police—despite encouragement from the staff at the health

clinic to do so. She testified that she did not report her boyfriend because she was afraid of the

consequences if he were arrested. She feared that he would be released quickly given his

connections to gang members or that he would send those gang members to harm her. As the

Board noted, however, Gonzalez Ortiz “did not establish that her former partner was a gang

member or that he could obtain his release from jail through the gangs.” A.R. 4. Gonzalez

Ortiz’s vague and conclusory assertions about the government’s inability to control her boyfriend

No. 20-4248 Gonzalez Ortiz, et al. v. Garland Page 7

stand in stark contrast to the government’s repeated and demonstrated inability to control Juan

Antonio’s husband. Juan Antonio, 959 F.3d at 794. For another thing, we found it “central” to

Juan Antonio’s claim that she was “an indigenous Mayan woman,” describing the “broader

context of systemic violence, harassment, and subordination of indigenous Mayan women in

Guatemala.” Id. at 784–85, 791; see id. at 795. Gonzalez Ortiz does not assert that she is an

indigenous Mayan.

Gonzalez Ortiz responds that the Board wrongly imposed a blanket rule requiring asylum

applicants to report their private abusers to the authorities to establish that the government is

unable or unwilling to protect them. But the Board imposed no such categorical rule. It relied

on Gonzalez Ortiz’s failure to report her boyfriend’s abuse as only one factor and concluded that

her reasons for not doing so were unsubstantiated. Our cases allowed the Board to follow this

path. We have repeatedly upheld the Board’s rejection of a claim that the government was

unable or unwilling to control a private party in part because the asylum applicant did not notify

the government of the abuse. See, e.g., Ramirez-Yoc v. Whitaker, 748 F. App’x 700, 701 (6th

Cir. 2019); Seye v. Barr, 768 F. App’x 381, 383 (6th Cir. 2019); Ralios Morente, 401 F. App’x at

24.

Gonzalez Ortiz also argues that the Board should have granted reconsideration because

Juan Antonio criticized an Attorney General opinion, Matter of A-B-, 27 I. & N. Dec. 316 (A.G.

2018), on which the immigration judge relied here. In A-B-, the Attorney General favorably

cited a Seventh Circuit case that described the unable-or-unwilling-to-control element as

requiring proof “that the government condoned the private actions ‘or at least demonstrated a

complete helplessness to protect the victims.’” Id. at 337 (quoting Galina v. INS, 213 F.3d 955,

958 (7th Cir. 2000)). A-B-’s use of this complete-helplessness language has received significant

attention. One circuit court found that A-B- was arbitrary and capricious because the language

created a more demanding test without adequate explanation. See Grace v. Barr, 965 F.3d 883,

898–900 (D.C. Cir. 2020). Others viewed the language as consistent with preexisting caselaw.

See Scarlett v. Barr, 957 F.3d 316, 333 (2d Cir. 2020); Gonzales-Veliz v. Barr, 938 F.3d 219,

233–34 (5th Cir. 2019). For our part, Juan Antonio recognized that a district court had found

A-B-’s complete-helplessness test arbitrary and capricious. 959 F.3d at 795. Yet we have

No. 20-4248 Gonzalez Ortiz, et al. v. Garland Page 8

previously used the test ourselves. See Kere v. Gonzales, 252 F. App’x 708, 712–13 (6th Cir.

2007); Skirko v. Gonzales, 153 F. App’x 958, 961 (6th Cir. 2005).

At day’s end, we do not consider this issue. The Attorney General recently vacated A-B-.

Matter of A-B-, 28 I. & N. Dec. 307, 309 (A.G. 2021). And while the immigration judge cited

the complete-helplessness test, the Board did not. Indeed, it did not cite A-B- at all. Rather, the

Board’s final order of removal cited two of our decisions for the generic rule that Gonzalez Ortiz

must show that the government was unable or unwilling to protect her. See Marouf v. Lynch,

811 F.3d 174, 189 (6th Cir. 2016); Velasquez-Rodriguez, 762 F. App’x at 244–45. Its order

denying reconsideration also rejected Gonzalez Ortiz’s claim even under the test that she now

proposes. According to that order, she failed to prove that she could not “reasonably expect the

assistance of the government” to protect her from Juan Carlos. A.R. 3–4 (quoting Juan Antonio,

959 F.3d at 793). In sum, the Board found that Gonzalez Ortiz failed to prove that Guatemala

was unable or unwilling to protect her no matter which specific test might apply in this context.

Because the Board’s ruling comported with Juan Antonio, Gonzalez Ortiz offers no valid

grounds to disturb it.

B

Gonzalez Ortiz’s three remaining arguments cannot change the outcome. She notes that

the statutory definition of “refugee” requires an asylum applicant to prove that the applicant fears

persecution on account of a protected trait, including “membership in a particular social group.”

8 U.S.C. § 1101(a)(42)(A). She argues that Juan Antonio supports her proposed social groups in

this case because it expressed skepticism about A-B-’s narrower reading of the statutory phrase

“particular social group.” See Juan Antonio, 959 F.3d at 790 n.3. But this social-group issue

does not matter. The Board “presumed, without deciding,” that Gonzalez Ortiz had identified

viable social groups. A.R. 3 n.3. It denied relief because Gonzalez Ortiz must independently

prove that the government is unable or unwilling to control private violence even if she proves

that this violence would arise on account of her membership in a particular social group. See

K. H., 920 F.3d at 475. Because the Board denied relief on this distinct ground, we need not

address Gonzalez Ortiz’s arguments about the meaning of the phrase “particular social group.”

Although Gonzalez Ortiz criticizes the Board for simply presuming (without deciding) the

No. 20-4248 Gonzalez Ortiz, et al. v. Garland Page 9

viability of her social groups, we regularly do the same thing. See José-Tomás, 822 F. App’x at

359 n.1; Mulla v. Holder, 462 F. App’x 592, 594–95 (6th Cir. 2012). Gonzalez Ortiz fails to

explain why the Board needed to issue what would be, in effect, an advisory opinion on this

social-group element.

An identical problem dooms Gonzalez Ortiz’s next claim. To qualify as “persecution,”

alleged harm must generally be more severe than, say, verbal threats or economic retribution.

See, e.g., Japarkulova v. Holder, 615 F.3d 696, 699 (6th Cir. 2010). Gonzalez Ortiz argues that

the Board wrongly failed to analyze whether Juan Carlos’s abuse (like the abuse in Juan

Antonio) rose to the required level of harm. Here again, this issue does not matter. Even

assuming Juan Carlos’s abuse was sufficiently harmful, Gonzalez Ortiz’s claim still fails because

she did not separately prove that Guatemala was unable or unwilling to control this abuse.

Gonzalez Ortiz’s last claim cannot affect the outcome for a related reason. An asylum

applicant may qualify as a “refugee” based on past persecution or on a well-founded fear of

future persecution. See K. H., 920 F.3d at 475. An applicant who proves past persecution is

presumed to have a well-founded fear of future persecution. Mapouya v. Gonzales, 487 F.3d

396, 412 (6th Cir. 2007); 8 C.F.R. § 1208.13(b)(1). Gonzalez Ortiz argues that the Board

wrongly failed to apply this presumption because she proved past persecution. But this argument

depends on our acceptance of her claim that Guatemala was unable or unwilling to protect her.

Because the Board did not err in rejecting that claim, it did not err in rejecting this presumption.

* * *

Simply put, Juan Antonio did not undermine the Board’s rejection of Gonzalez Ortiz’s

claim that the Guatemalan government was unable or unwilling to control Juan Carlos’s abuse.

The Board thus did not commit legal error or otherwise abuse its discretion in refusing to

reconsider its order declining her request for asylum. We deny the petition for review.