Anabely Gonzalez Ortiz v. Merrick B. Garland
6f4th685
| 6th Cir. | 2021Background
- Gonzalez Ortiz, a Guatemalan woman, suffered longstanding domestic abuse, including rape by her then-boyfriend Juan Carlos, repeated assaults during pregnancy, and suspected abuse of her newborn; Juan Carlos threatened to kill her if she left.
- She left Guatemala in October 2016 with her son and applied for asylum in the U.S.; an immigration judge denied asylum and the Board of Immigration Appeals (BIA) affirmed.
- The BIA relied in part on Gonzalez Ortiz’s failure to report the abuse to Guatemalan authorities and a State Department report noting Guatemala had "taken steps" to curb domestic violence.
- Gonzalez Ortiz sought BIA reconsideration after this court decided Juan Antonio v. Barr; the BIA denied reconsideration, finding Juan Antonio did not alter the outcome.
- She petitioned this court to review the BIA’s denial of reconsideration; the Sixth Circuit lacked jurisdiction to review the BIA’s original final order because Gonzalez Ortiz missed the statutory deadline to petition from that order.
- The Sixth Circuit denied the petition for review, holding Gonzalez Ortiz misread Juan Antonio (it was fact-specific), and that the BIA did not abuse its discretion by denying reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Juan Antonio required the BIA to reopen/reconsider Gonzalez Ortiz’s claim | Juan Ortiz argued Juan Antonio established that showing a government merely ‘took steps’ is insufficient and required reconsideration | Government argued Juan Antonio was fact-specific and did not create a categorical bar to reliance on evidence that a state ‘took steps’ | Court held Juan Antonio is fact-bound; BIA did not err in finding it did not change outcome |
| Proper role of general-country evidence stating the government ‘took steps’ against domestic violence | Gonzalez Ortiz argued such evidence is insufficient post-Juan Antonio | Government and BIA argued court must assess the totality of the record, and ‘took steps’ can be relevant | Court held general evidence may be considered under the totality of the evidence; not categorically precluded |
| Whether failure to report abuse to police dooms an inability/unwillingness-to-protect claim | Gonzalez Ortiz argued victim may have valid reasons not to report and BIA imposed a de facto reporting requirement | Government/BIA argued failure to report is a legitimate factor; here Gonzalez Ortiz offered unsubstantiated reasons and no evidence of police unresponsiveness or gang ties | Court upheld BIA’s weighing of non-reporting as one factor and found contrast with Juan Antonio where police ignored multiple reports |
| Whether social-group, harm severity, or past-persecution presumption required remand | Gonzalez Ortiz argued Juan Antonio’s treatment of social groups and harm severity warranted reconsideration and presumption of future persecution | Government argued BIA presumed social-group viability and denied relief on inability/unwillingness ground, so these issues are immaterial | Court held these issues were collateral: even if resolved for Gonzalez Ortiz, she still failed to prove the government was unable/unwilling to protect her |
Key Cases Cited
- Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020) (reversed BIA; emphasized totality of evidence in finding Guatemala unable/unwilling to protect applicant)
- K. H. v. Barr, 920 F.3d 470 (6th Cir. 2019) (applies state-action test requiring government inability or unwillingness to control private actors)
- Marouf v. Lynch, 811 F.3d 174 (6th Cir. 2016) (cited for the generic rule on government inability/unwillingness element)
- Wajda v. Holder, 727 F.3d 457 (6th Cir. 2013) (timeliness of petition for review is jurisdictional)
- Stone v. INS, 514 U.S. 386 (1995) (establishes limits on judicial review where statutory time limits are missed)
- Mapouya v. Gonzales, 487 F.3d 396 (6th Cir. 2007) (presumption of future persecution after proof of past persecution)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (substantial-evidence review of inability/unwillingness-to-protect findings)
- José-Tomás v. Barr, [citation="822 F. App'x 354"] (6th Cir. 2020) (upheld BIA finding where government was taking steps to address domestic violence)