Esmeralda Gutierrez Aguirre v. Merrick Garland
20-70396
| 9th Cir. | Jul 7, 2021Background:
- Petitioners: Esmeralda Gutierrez Aguirre and her minor children, Mexican nationals, sought asylum and withholding of removal based on gang threats.
- IJ denied relief; BIA affirmed, finding the gang targeted the family for recruitment and not "on account of" any protected ground or family-based particular social group (PSG).
- BIA also rejected the petitioners’ motion to remand to introduce a new declaration alleging renewed threats.
- Petitioners raised due process claims: denial of telephonic testimony for Gutierrez Aguirre’s husband and the IJ’s failure to invite counsel to give closing argument.
- Ninth Circuit reviewed de novo legal questions and for substantial evidence factual findings, and denied the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nexus for asylum/withholding — past persecution and future fear | Gang targeted family because of their family-based PSG; qualifies as persecution on account of protected ground | Gang’s harm was recruitment-driven, a means to an end, not because of family membership; no nexus | Denied — substantial evidence supports no nexus to a protected ground |
| Error in application of nexus/withholding standards; BIA’s characterization of caselaw | IJ/BIA misapplied nexus and BIA misstated current law on family-based PSGs | Any error is harmless because withholding standard is less demanding and BIA rejected claims on nexus alone | Harmless error; BIA’s rejection on nexus dispositive |
| Due process — denial of telephonic testimony for husband | Excluding husband’s live testimony prevented reasonably presenting their case | IJ accepted his declaration and Gutierrez Aguirre’s credible testimony covered same facts; no prejudice | No prejudice shown; due process claim fails |
| Due process — counsel closing argument not invited | Absence of closing argument deprived petitioners of effective assistance of counsel | Claim unexhausted in BIA; alternatively, no prejudice shown | Court lacks jurisdiction over unexhausted claim; no relief |
| Motion to remand for new evidence (mother’s declaration of new threats) | New threats are material and unavailable at prior hearing; remand should be granted | New evidence would not alter the dispositive nexus finding; BIA may deny remand in its discretion | BIA did not abuse discretion; remand denied |
Key Cases Cited
- Arrey v. Barr, 916 F.3d 1149 (9th Cir. 2019) (standard of review for BIA factual and legal determinations)
- Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011) (review standard for denial of remand/ reopening)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (withholding standard compared to asylum standard)
- INS v. Bagamasbad, 429 U.S. 24 (U.S. 1976) (agency rulings reviewed under narrow standards when dispositive grounds exist)
- Sanjaa v. Sessions, 863 F.3d 1161 (9th Cir. 2017) (issues concerning nexus and PSG cognizability)
- Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006) (standard for establishing prejudice in due process claims)
- Gutierrez v. Holder, 662 F.3d 1083 (9th Cir. 2011) (treatment of testimonial evidence and prejudice analysis)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (requirements for new evidence in motions to reopen)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (exhaustion requirement for judicial review of administrative claims)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) (limits on appellate review of claims not adopted by the BIA)