Sandra Sabastian-Andres v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0060p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

SANDRA SABASTIAN-ANDRES,

│

Petitioner, │

> No. 23-3606

│

v. │

│

MERRICK B. GARLAND, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals.

No. A 208 866 482

Decided and Filed: March 20, 2024

Before: KETHLEDGE, READLER, and BLOOMEKATZ, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Kevin Gardner, KBG IMMIGRATION LLC, Independence, Ohio, for Petitioner.

Paul Fiorino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

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OPINION

_________________

BLOOMEKATZ, Circuit Judge. Sandra Sabastian-Andres, an indigenous Mayan

Akateko woman from Guatemala now living in the United States, applied for asylum,

withholding of removal, and protection under the Convention Against Torture. The Immigration

Judge denied all three claims for relief, and the Board of Immigration Appeals affirmed.

The Board agreed with the Immigration Judge that Sabastian-Andres did not demonstrate a

nexus between her particular social group and the harm she experienced and did not show that

No. 23-3606 Sabastian-Andres v. Garland Page 2

the government of Guatemala acquiesced in her mistreatment there. Because the Board’s

conclusions were supported by substantial evidence, we deny her petition for review.

BACKGROUND

Sandra Sabastian-Andres is a Mayan Akateko woman from Guatemala. When she was a

teenager, Sabastian-Andres was approached by a man named Pedro. He told her that he wanted

her to be “his woman” and demanded that she join his gang. A.R. PageID 120, 231. When she

refused, Pedro started to threaten her with rape and other physical abuse. He lingered outside her

house, so she stayed inside to avoid him. Her parents advised her to leave Guatemala because

they worried about her safety. Sabastian-Andres felt especially concerned about Pedro’s threats

and “constant[] surveillance” because she and her family, who speak their indigenous language

rather than Spanish, could barely communicate with the Spanish-speaking police. A.R. PageID

230. And even without the language barrier, Sabastian-Andres believed that the police

collaborated with gangs, so turning to them for help would have been futile. Roughly five

months after that first encounter with Pedro, Sabastian-Andres followed her parents’ advice and

traveled to the United States.

Sabastian-Andres arrived without inspection on April 23, 2016 and was served with a

Notice to Appear the following day. In 2018, she filed an application for asylum, withholding of

removal, and protection under the Convention Against Torture, arguing that she was sexually

harassed and threatened by Pedro and emphasizing that she is a Mayan Akateko woman. The

Immigration Judge denied all three forms of relief and ordered her removal. The IJ identified

several fatal defects in Sabastian-Andres’s asylum claim: Pedro’s threats were not severe enough

to amount to persecution; Pedro’s threats had nothing to do with the fact that Sabastian-Andres is

a Mayan Akateko woman; Sabastian-Andres offered no evidence showing that the Guatemalan

government would be unable or unwilling to control Pedro; and Sabastian-Andres did not

substantiate her claim that she could not relocate internally within Guatemala to protect herself

from Pedro. Then the IJ observed that the burden of proof for withholding of removal is “more

stringent” than for asylum. A.R. PageID 75. Sabastian-Andres relied on the same evidence for

both asylum and withholding of removal, so because it was insufficient for asylum, it was

necessarily insufficient for withholding of removal too. Finally, the IJ concluded that Sabastian-

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Andres did not qualify for relief under the Convention Against Torture because she did not prove

that she would likely be tortured if she returned to Guatemala. To be eligible for protection,

Sabastian-Andres would have had to show that a public official had instigated, consented to, or

acquiesced in Pedro’s harmful conduct.

Sabastian-Andres appealed to the Board of Immigration Appeals, and the Board affirmed

the IJ’s decision. The Board adopted only one of the IJ’s bases for denying Sabastian-Andres’s

asylum claim, concluding that there was no “nexus” between Pedro’s threats and her identity as a

Mayan Akateko woman. A.R. PageID 4. The Board did not address any of the IJ’s other

reasons for denying asylum. The Board agreed with the IJ that the complete lack of a nexus

rendered Sabastian-Andres ineligible for withholding of removal, and it adopted the IJ’s

reasoning on the Convention Against Torture claim. Sabastian-Andres timely appealed.

ANALYSIS

I. Standard of Review

We have jurisdiction under 8 U.S.C. § 1252 to review the Board’s final determination

ordering removal. Umaña-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013). Because the

Board issued its own decision instead of summarily affirming the IJ, we review the Board’s

decision. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We also review the IJ’s decision

to the extent the Board adopted its reasoning. Id. We examine factual findings under the

substantial evidence standard, which means that we affirm so long as the Board’s finding “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)). We only reverse if “‘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)). We review legal conclusions de novo.

Juan Antonio v. Barr, 959 F.3d 778, 788 (6th Cir. 2020).

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II. Asylum

The Attorney General can exercise his discretion to grant asylum to an immigrant who

meets the definition of a “refugee.” Umaña-Ramos, 724 F.3d at 670 (citing 8 U.S.C. § 1158(b)).

To qualify, the immigrant must show that they have experienced persecution or that they have a

well-founded fear of future persecution “on account of” one of five protected characteristics:

their race, religion, nationality, political opinion, or membership in a particular social group.

8 U.S.C § 1101(a)(42). A “particular social group” is “a group of individuals who share a

common, immutable characteristic that is one that members of the group either cannot change, or

should not be required to change because it is fundamental to their individual identities or

consciences.” Marikasi v. Lynch, 840 F.3d 281, 290 (6th Cir. 2016) (citing Umaña-Ramos,

724 F.3d at 671; Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011)). A particular social group

must also be “socially visible.” Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010).

And we “may not presume that persecution is on account of” an applicant’s “membership in a

particular social group.” Sebastian-Sebastian v. Garland, 87 F.4th 838, 847 (6th Cir. 2023)

(citation and quotation omitted).

Persecution “on account of” a protected characteristic means that the characteristic was

“at least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). When the “central

reason” requirement is met, we say that there is a “nexus” between the protected characteristic

and the persecution. Turcios-Flores v. Garland, 67 F.4th 347, 357 (6th Cir. 2023). The

protected characteristic does not have to be the only reason. Sebastian-Sebastian, 87 F.4th at

848; Juan-Pedro v. Sessions, 740 F. App’x 467, 472 (6th Cir. 2018). Even if the Board identifies

one likely reason for the persecution that has nothing to do with the protected characteristic, it is

still required to consider all the evidence in the record to evaluate whether a nexus exists. See

Sebastian-Sebastian, 87 F.4th at 848. This is true even when the applicant does not explicitly

testify to that nexus but provides other evidence connecting their persecution to their particular

social group. See id. at 848–50.

Sabastian-Andres insists that Pedro targeted her because she belongs to a particular social

group; she is a Mayan Akateko woman. The IJ and the Board believed that there was no nexus

No. 23-3606 Sabastian-Andres v. Garland Page 5

between the threats and her particular social group. Substantial evidence supports this

conclusion.

The evidence that most undermines Sabastian-Andres’s nexus argument is her own

testimony. Sabastian-Andres repeatedly explained that Pedro threatened her because he wanted

her to be his wife and join his gang, which does not by itself foreclose the possibility of a nexus.

But at the end of her testimony, the IJ asked her to address the nexus question head-on:

IJ: He didn’t threaten you because you were a Mayan Akateko?

S-A: I don’t understand that.

IJ: He threatened you because he wanted you to be his wife. Correct?

S-A: Yes.

IJ: He didn’t threaten you because you’re indigenous. He was indigenous.

S-A: Yes.

A.R. PageID 139. The IJ gave Sabastian-Andres the opportunity to connect the dots between her

membership in a particular social group and Pedro’s threats, but instead, she denied that any such

connection existed.

To be clear, the fact that Pedro is also Mayan Akateko does not automatically doom

Sabastian-Andres’s asylum claim. The Board has recognized a nexus even when indigeneity was

a “central” part of an asylum seeker’s particular social group and the alleged persecutor was

indigenous too. Juan Antonio, 959 F.3d at 784, 787–88. We can imagine scenarios where a

member of some disfavored group mistreats another member of that same disfavored group

because of their group membership. But the fact remains that Sabastian-Andres did not offer up

any of these scenarios when asked. Instead, she confirmed that her Mayan Akateko identity had

nothing to do with Pedro’s threats.

Nothing else in the record demonstrates that the Board’s decision was not supported by

substantial evidence. Sabastian-Andres’s application for asylum did not connect her encounters

with Pedro to her indigeneity. In her application, she described herself as Mayan Akateko, but

she did not explain how her Mayan background played a role in what Pedro said and did to her.

The only conceivable connection she drew was oblique: she says that the police speak Spanish,

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rather than her Mayan Akateko language, which makes it hard to report crimes. Crucially, she

does not say that this encouraged Pedro to seek her out or threaten her. And because Sabastian-

Andres did not testify that her inability to communicate with the police caused Pedro to target

her, we cannot speculate that such a situation was at play here. See Zoarab v. Mukasey, 524 F.3d

777, 780 (6th Cir. 2008).

Sabastian-Andres also submitted letters from family members, but none of them allude to

a connection between her identity as a Mayan Akateko woman and Pedro’s harassment. Her

father did observe that local gangs are especially likely to coerce women into joining, but he

does not explain how his daughter’s indigeneity might have caused Pedro to pursue her. Indeed,

he does not mention his daughter’s indigeneity at all. Neither do her cousins, Lety and Maria, in

their letters.

Sabastian-Andres provided secondary source materials about conditions in Guatemala,

but these sources do not justify reversal. The State Department’s 2018 Human Rights Report on

Guatemala says that indigenous communities face “pervasive discrimination,” which forces

them “largely outside the political, economic, social, and cultural mainstream.” Bureau of

Democracy, Hum. Rights & Lab., U.S. Dep’t of State, Guatemala Human Rights Report (2018),

A.R. PageID 187. But, as the IJ pointed out, the same report confirmed that Guatemalan law

“provides for equal rights for indigenous persons and obliges the government to recognize,

respect, and promote” indigenous groups. Id. at PageID 186. The academic article Sabastian-

Andres submitted describes how Mayan women experience disproportionate barriers to

accessing the police and the legal system, meaning that “when indigenous Maya women seek

justice for the violence they endure, they are the least likely to be heard.” Cecilia Menjivar &

Shannon Drysdale Walsh, Subverting Justice: Socio-Legal Determinants of Impunity for

Violence against Women in Guatemala, 5 Laws (2016), A.R. PageID 208. The same article

quotes a UN Rapporteur, who described the difficult position of indigenous Guatemalan women

like this: “women, particularly those of indigenous descent, [are] at risk of violence due to the

compounded discrimination they face based on sex, ethnicity, and class.” Id. at PageID 209.

Even if these two pieces of evidence could support the conclusion that Sabastian-Andres’s

particular social group partially motivated what happened to her, Sabastian-Andres’s testimony

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explicitly undermines that conclusion. Therefore, we cannot conclude that the IJ and the Board

lacked substantial evidence for their nexus determination.

III. Withholding of Removal

Sabastian-Andres also applied for withholding of removal. Like asylum, withholding of

removal requires a nexus between one of the five protected characteristics and the persecution.

Turcios-Flores, 67 F.4th at 358. But it is easier to establish a nexus in the withholding context

because the protected characteristic must be “at least one reason” for the mistreatment, not a

central reason. Guzman-Vazquez v. Barr, 959 F.3d 253, 274 (6th Cir. 2020).

The IJ issued her decision before we announced the difference between the two

standards, so she did not have the opportunity to consider how that difference might affect

Sabastian-Andres’s case. Sabastian-Andres says this amounts to reversible error. But the Board,

writing four years after the IJ, applied the correct standard. Because the IJ and the Board

determined that there was no nexus at all between Pedro’s threats and Sabastian-Andres’s

particular social group, the Board concluded that she could not qualify for withholding of

removal even under the more lenient nexus standard. We agree.

IV. Convention Against Torture

Finally, Sabastian-Andres sought relief under the Convention Against Torture. To

qualify, Sabastian-Andres had to prove that it was more likely than not that she would be

tortured if she returned to Guatemala. The Convention Against Torture is limited to acts

“inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official

acting in an official capacity or other person acting in an official capacity.” 8 C.F.R

§ 1208.18(a)(1). Acquiescence can mean “willful blindness” to a private actor’s abusive

conduct. Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). If 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 are willfully blind to the problem. See Zaldana Menijar

v. Lynch, 812 F.3d 491, 502 (6th Cir. 2015).

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When analyzing the state action dimension of a Convention Against Torture claim, we

often ask whether the applicant reported the harm they suffered to the authorities. If the

applicant never contacted any officials, we usually treat this as a signal that the government did

not turn a willfully blind eye to the applicant. E.g., Majano-De Hernandez v. Barr, 777 F. App’x

810, 813 (6th Cir. 2019); Miguel-Jose v. Garland, 852 F. App’x 885, 890–91 (6th Cir. 2021);

Lino-Sabio v. Barr, 805 F. App’x 385, 389 (6th Cir. 2020); Andret v. Garland, No. 23-3426,

2024 WL 167115 at *7 (6th Cir. Jan. 16, 2024); Sanchez-Ochoa v. Sessions, 690 F. App’x 317,

319 (6th Cir. 2017); Diaz-Gonzalez v. Whitaker, 756 F. App’x 552, 559–60 (6th Cir. 2018).

After all, if an applicant “never told the government about the threats, the authorities never had a

chance to acquiesce in any violence,” Majano-De Hernandez, 777 F. App’x at 813, and “it is

impossible to know how they would have responded to the call of duty,” Miguel-Jose, 852

F. App’x at 890. Failure to inform the authorities, while important in our analysis, is not

dispositive. Cf. Juan Antonio, 959 F.3d at 793 (approvingly citing a Board decision granting

asylum to an applicant who had shown that the Moroccan government would have been unable

or unwilling to control her abuser, even though she never reported him). Additional evidence in

the record, including secondary sources, can help us understand what role the government

played.

Sabastian-Andres did not report Pedro’s threats to the police. In her application and

during her testimony, she said she could not communicate with the Spanish-speaking police and

that the police collaborate with gangs anyway. Her father explained in his letter that the police

do not investigate reports of gang violence.

The secondary sources she provided support different conclusions on the willful

blindness question. On the one hand, they tell a bleak story about the Guatemalan government’s

capacity and willingness to curb gang violence. For example, the State Department’s country

report observes that “[p]olice had minimal training or capacity to investigate sexual crimes or

assist survivors of such crimes, and the government did not enforce the law effectively.” Bureau

of Democracy, Hum. Rights & Lab., U.S. Dep’t of State, A.R. PageID 182. Another expert

confirmed that “[w]hen contacted, police either do not respond or fail to engage in meaningful

criminal investigations” such that victims are frequently “re-victimized by police if they report a

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crime.” A.R. PageID 199. But Guatemala has taken some steps to address the problem, even if

they haven’t been very effective. And the IJ pointed out that the authorities must be making

some effort to respond to gang violence because gang members do go to prison in Guatemala.

The IJ also noted that Sabastian-Andres and her family feared that Pedro would retaliate against

them if she went to the police, which suggests that he believed there would be consequences for

him if the police found out about his harassment.

There are effectively two narratives about state action that emerge from all this evidence.

But our task is not to pick the version that we believe is more convincing. Instead, we evaluate

whether the version articulated by the Board and the IJ was supported by reasonable, substantial,

and probative evidence. Here, it was.

CONCLUSION

For these reasons, we deny Sabastian-Andres’s petition for review.