Eulogio Hernandez-Box v. Jeff Sessions
680 F. App'x 416
| 6th Cir. | 2017Background
- Eulogio Hernandez-Box, a Quiche‑speaking Mayan from Guatemala, entered the U.S. unlawfully in 2001 and applied for asylum, withholding of removal (INA), and CAT relief in 2010.
- The IJ denied relief and the BIA dismissed the appeal; Hernandez‑Box conceded his asylum application was untimely but invoked the "changed circumstances" exception based on intensified local political violence in Aguacatán.
- The IJ found Hernandez‑Box generally credible but discredited key aspects of his story as inconsistent or contradicted by documentary evidence; the IJ also noted lack of corroboration and that petitioner’s father’s affidavit failed to substantiate alleged attacks.
- The IJ concluded petitioner failed to show past persecution or that it is more likely than not he would be persecuted on account of a protected ground if returned to Guatemala; the BIA affirmed.
- The IJ also denied CAT relief, finding petitioner’s fear of extortion/ordinary crime did not show a likelihood of torture by or with acquiescence of government actors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review denial of untimely asylum based on changed circumstances | Hernandez‑Box argued IJ erred in rejecting changed‑circumstances exception (increased political violence) | Government argued factual/discretionary finding; court lacks jurisdiction under REAL ID Act | Court: dismissed review of the untimely asylum claim for lack of jurisdiction because resolution would require reweighing factual evidence |
| Whether IJ should have found "changed circumstances" excusing late asylum filing | Hernandez‑Box claimed increased violence/political targeting in Aguacatán justified untimely filing | Government/agency relied on IJ’s factual findings that petitioner failed to corroborate and testimony was inconsistent | Held: issue is factual/discretionary and not reviewable on appeal; asylum denial for untimeliness stands (dismissed in part) |
| Withholding of removal (INA §241(b)(3)) — past or future persecution on account of protected ground | Hernandez‑Box relied on attacks on his father and his Quiche identity / political opposition to Escobar to show risk | Government argued petitioner was not primary target, evidence inconsistent/contradicted, lacking corroboration, and risk was generalized criminality | Held: substantial evidence supports denial; petitioner failed to show past persecution or a more‑likely‑than‑not future persecution on a protected ground (petition denied) |
| CAT protection — likelihood of torture by government or with its acquiescence | Hernandez‑Box claimed risk of extortion/kidnapping and generalized mistreatment of Mayan communities | Government argued fear was of ordinary crime, no evidence government would instigate/acquiesce to torture; some police protection existed | Held: denied — petitioner failed to show torture more likely than not or government acquiescence (substantial evidence) |
Key Cases Cited
- Khozhaynova v. Holder, 641 F.3d 187 (6th Cir.) (REAL ID Act limits review of discretionary/factual asylum untimeliness denials)
- Mandebvu v. Holder, 755 F.3d 417 (6th Cir.) (distinguishes reviewable statutory‑construction errors from unreviewable factual determinations in changed‑circumstances context)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir.) (changed‑circumstances and factual nature of increased‑violence claims are typically unreviewable)
- Urbina‑Mejia v. Holder, 597 F.3d 360 (6th Cir.) (REAL ID Act requires corroboration when IJ so finds)
- Umaña‑Ramos v. Holder, 724 F.3d 667 (6th Cir.) (standard for withholding of removal under INA)
- Bonilla‑Morales v. Holder, 607 F.3d 1132 (6th Cir.) (distinguishing persecution from isolated or familial targeting)
- Mikhailevitch v. INS, 146 F.3d 384 (6th Cir.) (persecution requires more than isolated harassment)
- Koliada v. INS, 259 F.3d 482 (6th Cir.) (generalized crime/economic hardship not persecution)
- Shkulaku‑Purballori v. Mukasey, 514 F.3d 499 (6th Cir.) (REAL ID Act jurisdictional principles for asylum untimeliness)
- Alhaj v. Holder, 576 F.3d 533 (6th Cir.) (CAT standard: torture requires severe pain inflicted by/with government acquiescence)