27 I. & N. Dec. 808
BIA2020Background
- Respondent: Guatemalan national in the U.S. without admission; placed in removal proceedings and denied asylum, cancellation of removal, withholding of removal, and CAT relief by an IJ (Apr. 5, 2019); appeal dismissed by the BIA.
- Qualifying relatives: five U.S. citizen children (ages 12, 11, 8, 5, 2 months at hearing) and an LPR mother.
- Medical facts: 8-year-old daughter diagnosed with congenital hypothyroidism requiring regular medication; one son previously treated for anxiety/ADHD and completed therapy; mother has hypertension covered by State benefits and can obtain prescriptions/transport.
- Family plan disputed: respondent testified children would remain in U.S.; partner said children and she would accompany respondent to Guatemala and asserted (uncorroborated) high cost of daughter’s medication there; respondent’s mother testified she received free care in Guatemala.
- IJ findings: medical, economic, and emotional hardships were insufficiently documented to meet the high "exceptional and extremely unusual" standard for cancellation; withholding and CAT relief denied for lack of nexus, temporal remoteness, and insufficient evidence.
Issues
| Issue | Respondent's Argument | Government's Argument | Held |
|---|---|---|---|
| Cancellation: whether removal would cause "exceptional and extremely unusual" hardship to qualifying relatives | Removal would cause medical, economic, and emotional hardship to children and mother (notably daughter’s hypothyroidism) | Hardship shown is ordinary consequence of removal; evidence insufficient to prove required severity | Affirmed: cumulative hardship did not meet the "exceptional and extremely unusual" standard |
| Medical-based hardship: whether respondent proved a serious condition and that adequate care is unavailable in Guatemala | Daughter’s hypothyroidism requires medication that allegedly is unaffordable/unavailable in Guatemala | Testimony about cost was uncorroborated; mother’s statement about free care undercuts claim; record doesn’t show treatment unavailable | Board clarifies medical claims require proof of serious condition and, if relative will accompany, lack of reasonable availability of adequate care; here not satisfied |
| Withholding of removal: nexus to protected ground (political opinion or particular social group) | Past targeting by gangs and relatives, and prospective targeting as a deported/long-term U.S. worker group | Threats were criminally motivated or based on suspected involvement in a death; proposed social group is amorphous and not socially distinct | Denied: no protected-ground nexus; proposed social group too broad and not particular or socially distinct |
| Convention Against Torture (CAT): likelihood of torture by or with acquiescence of state actors | Country conditions and past threats make torture likely if returned | Threats were remote in time; no evidence attackers remain interested or state involvement; countrywide violence insufficient to meet CAT standard | Denied: speculative and not more likely than not that respondent would be tortured with state consent or acquiescence |
Key Cases Cited
- Barrios v. Holder, 581 F.3d 849 (9th Cir. 2009) (criminal/gang violence unconnected to protected ground does not establish asylum/withholding nexus)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (fear of generalized violence is not persecution on account of a protected ground)
- Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (countrywide evidence of violence insufficient for CAT without individualized risk or state involvement)
- Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (social-group definitions that are amorphous or overbroad fail particularity requirement)
- Barbosa v. Barr, 926 F.3d 1053 (9th Cir. 2019) (groups defined by deportation status or perceived wealth are too broad to be particular)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (rejecting imputed-wealth social groups as lacking particularity)
- Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (social-group and nexus analysis under withholding standards)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (establishing the government must show lack of nexus when challenged; burden-shifting in withholding context)
- Xiao Fei Zheng v. Holder, 644 F.3d 829 (9th Cir. 2011) (CAT claim denial upheld where torture risk is speculative and temporally remote)
- Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008) (court cautions against reliance on unvetted internet sources without assessing reliability)