Mаribel Trujillo DIAZ, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
No. 17-3669
United States Court of Appeals, Sixth Circuit.
Decided and Filed: January 17, 2018
Accordingly, we DISMISS Lee‘s motion for an order authorizing a second or successive
Before: MERRITT, MOORE, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge.
In this immigration case, Maribel Trujillo Diaz petitions for review of an order denying her motion to reopen removal proceedings. The United States Board of Immigration Appeals (“BIA“) ruled that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum or withholding of removal under the Immigration and Nationality Act (“INA” or “Act“) because she failed to show that she would be singled out individually for persecution based on her family membership. The BIA reiterated this finding in ruling that Trujillo Diaz failed to establish a prima facie case of eligibility for protection under the Convention Against Torture. Because the BIA failed to credit the facts stated in Trujillo Diaz‘s declarations, and this error undermined its conclusion as to the sufficiency of Trujillo Diaz‘s prima facie evidence, we hold that the BIA abused its discretion. We further hold that the BIA abused its discretion in summarily rejecting Trujillo Diaz‘s argument that she could not safely relocate internally in Mexico for purposes of showing a prima facie case of eligibility for relief under the Convention Against Torture. Thus, we vacate the order of the BIA and remand for further proceedings consistent with this opinion.
I
Petitioner Trujillo Diaz is a Mexican citizen who entered the United States in February 2002. She was apprehended by Immigration and Customs Enforcement (“ICE“) in 2007 and placed in removal proceedings. On July 11, 2012, Trujillo Diaz had a merits hearing in her immigration proceeding. She sought asylum, withholding of removal under the INA, withholding of removal under the Convention Against Torture, and voluntary departure. During her hearing, Trujillo Diaz testified that she feared for her safety in Mexico because she believed the drug cartel, La Familia, would seek revenge against her and her family for her brother‘s refusal to work for them and his subsequent fleeing to the United States.
The immigration judge found that Trujillo Diaz‘s asylum application was untime-ly filed, rendering her ineligible for asylum and requiring her claim to be assessed under the higher “cleаr probability of persecution” standard for withholding of removal. Although he found Trujillo Diaz to be a credible witness, the immigration judge ultimately denied her application for asylum and withholding-of-removal relief but granted her request for voluntary departure. In finding that she could not meet her burden of proof to establish a clear probability of future persecution, the immigration judge relied on the fact that the cartel had not harmed or threatened her or anyone else in her immediate family besides her brother who refused to join the cartel. Trujillo Diaz filed an appeal, but in May 2014, the BIA dismissed it, again reiterating that she had not established a clear probability of persecution in Mexico because “her parents and two siblings ha[d] not been harmed by the gang.” Trujillo Diaz did not file a petition for review.
Nevertheless, Trujillo Diaz was allowed to remain in the United States under an ICE order of supervision. She received work authorization and remained here until April 2017. During this time, she regularly reported to her prescheduled ICE check-ins.
In February 2017, Trujillo Diaz learned that her father had been kidnapped by the Knights Templar, a Mexican cartel. According to Trujillo Diaz‘s father, during his kidnapping, his captors told him they were looking for “Omar Daniel,” Trujillo Diaz‘s brother, who had previously refused to jоin
Based on this new information, Trujillo Diaz filed a motion to reopen her immigration proceedings and a motion to stay removal. Because her mоtion to reopen was filed years after her removal proceedings had closed, she sought reopening under an exception to the time limit based on changed country conditions in Mexico. Along with her evidence of changed country conditions, Trujillo Diaz also filed, among other things, a personal declaration, a declaration from her father in which he described his kidnapping, and a declaration from an expert witness concerning the threat of future harm to Trujillo Diaz at the hands of the Knights Templar because of her brother‘s failure to comply with the cartel‘s demands. In her motion, Trujillo Diaz alleged that shе feared returning to Mexico because she believed that the Knights Templar cartel that kidnapped her father was targeting her and her family to get revenge for her brother‘s fleeing the country after refusing to join the La Familia cartel.
Two days after she filed her motions, ICE apprehended Trujillo Diaz outside her home, detained her, and scheduled her removal for April 11, 2017. On April 10, the BIA denied her stay of removal but took no action on her motion to reopen. Trujillo Diaz filed a petition for review of the denial of the stay and an emergency motion to stay removal. This court denied her motion to stay and dismissed the petition for review on April 11, 2017. Trujillo Diaz was deported eight days later.
On May 24, 2017, the BIA denied Trujillo Diaz‘s motion to reopen her removal proceedings, finding that she had not demonstrated prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.1 This petition for review followed.
II
A. Standard of Review
We review the BIA‘s denial of a motion to reopen immigration proceedings for abuse of discretion. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). We will find an abuse of discretion if the BIA‘s denial “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In determining whether the BIA abused its discretion, we look only at “the basis articulated in the decision and [we] may not assume that the [BIA] considered factors that it failed to mention in its opinion.” Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004).
Motions to reopen immigration proceedings are generally “disfavored,” in light of the strong public interest in the finality of removal orders. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (“Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” (quoting INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981))). Evincing the importance of finality, both temporal and numerical limits apply to motions to reopen. See
There is an exception to these temporal and numerical limits, however, for motions “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.”
The Supreme Court hаs identified “at least three independent grounds on which the BIA might deny a motion to reopen—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008) (quoting Doherty, 502 U.S. at 323, 112 S.Ct. 719). When the board denies relief on a particular ground, we review only that ground. See Daneshvar, 355 F.3d at 626; Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985) (“When the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review.“); seе also Fed. Power Comm‘n v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (“[A]n agency‘s order must be upheld, if at all, on the same basis articulated in the order by the agency itself.” (internal quotation marks omitted)).
The BIA denied Trujillo Diaz‘s motion to reopen on the ground that she failed to establish a prima facie case for any of the relief she sought: asylum, withholding of removal under the INA, or withholding of removal under the Convention Against Torture. As explained below, we find that the BIA abused its discretion in reaching this conclusion.
i. The BIA abused its discretion when it found that Trujillo Diaz failed to present prima facie evidence that she would be singled out individually for persecution on the basis оf a protected ground.
The BIA correctly noted that Trujillo Diaz‘s motion to reopen was required to be “supported by evidence that . . . demonstrates prima facie eligibility for relief.” To present a prima facie case for relief, the movant need not make a “conclusive showing” that she will ultimately obtain relief. Vata v. Gonzales, 243 Fed.Appx. 930, 947 (6th Cir. 2007) (quoting In re S-V-, 22 I. & N. Dec. 1306, 1307 (BIA 2000)). But she must present evidence that “reveals a reasonable likelihood that the
For asylum and withholding of removal, one of the statutory requirements for eligibility is that the applicant show a “well-founded fear of persecution” (for asylum) or that the applicant‘s “life or freedom would be threatеned” (for withholding of removal) on account of a protected ground—“race, religion, nationality, membership in a particular social group,2 or political opinion.”
An applicant who seeks to establish a likelihood of being “singled out individually” for persecution “cannot rely on speculative conclusions or mere assertions of fear of possible persecution, but instead must offer reasоnably specific information showing a real threat of individual persecution.” Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (citation omitted). “The feared persecution must relate to the alien individually, not to the population generally.” Ibid. (citation omitted).
So, evidence of persecution in the applicant‘s country of removal, without some connection to the applicant herself, will not suffice. For example, we have found that an applicant‘s evidence of “articles and reports” demonstrating human-rights violations in Ukraine failed to demonstrate an “individualized” fear of persecution because there was no evidence showing that those conditions would affect the applicant. See ibid.; see also Vuthi v. Gonzales, 209 Fed.Appx. 470, 473 (6th Cir. 2006) (upholding denial of motion to reopen in part because articles and reports did not support an individualized fear of persecution). Similarly, not even “acts of violence against an alien‘s family members” necessarily suffice to present an individualized fear of persecution unless those acts are “tied to the asylum applicant himself or herself.” Gebremaria v. Ashcroft, 378 F.3d 734, 739 (8th Cir. 2004); see also Nyonzele v. INS, 83 F.3d 975, 983 (8th Cir. 1996) (determining that applicant did not have a well-founded fear of future persecution even though his father had been murdered by government officials for his political beliefs because there was no evidence that the government sought to persecute the applicant for his father‘s political opinions).
By contrast, however, we and our sister circuits have found a real threat of individual persecution when an applicant presented evidence describing threats of harm directed at the applicant. See, e.g., Mapouya v. Gonzales, 487 F.3d 396, 413 (6th Cir. 2007) (holding that in light of applicant‘s submission of two letters from independent sources in the Republic of Congo that showed a threat of harm to him, substantial evidence did not support finding that applicant lacked a well-founded fear of future persecution in Congo); Xiu Zhen Lin v. Mukasey, 532 F.3d 596, 597 (7th Cir. 2008)
In the present case, Trujillo Diaz alleges that she fears returning to Mexico because she believes that the Knights Templar, a prominent cartel, is targeting her (along with the rest of her family) to get revenge for her brother‘s fleeing the country in 2010 after refusing to join La Familia, a cartel that was prominent at that time. As evidence of this, Trujillo Diaz presented a sworn declaration from her father in which he stated that in 2014 he was kidnapped by members of the Knights Templar, and that during that kidnapping, thе cartel members explicitly mentioned Trujillo Diaz and her brother and said that the whole family would suffer if the cartel members could not “get their hands on” Trujillo Diaz or her brother. In his declaration, Trujillo Diaz‘s father stated that during the kidnapping, his captors told him they were part of the Knights Templar and that “they knew [he] was the father of Omar Daniel and Maribel.” Further, they specifically told him that “they wanted to find Omar Daniel because they were upset that he would not work for the gang” and that they “were very angry that they could not find Omar Daniel because he had fled to the United States.” The gang members also said to him that they “knew that Maribel had gone to thе United States” and they threatened to “hurt the rest of [his] family if they could not get their hands on Omar Daniel and Maribel.”
Based primarily on her knowledge of her father‘s kidnapping, including the details of what he told her that his captors said to him, Trujillo Diaz submitted her own sworn affidavit declaring that she and her family have a fear of being targeted by the Knights Templar because Omar refused to join the cartel, La Familia, and that “those bad men still want to hurt us to take revenge.”
After reviewing her evidence, the BIA determined that Trujillo Diaz had not made a prima facie showing of eligibility for asylum and withholding of removal because she failed to show that “she would specifically be targeted . . . due to her family membership.” The BIA based this determination on its finding that Trujillo Diaz presented no actual evidence (as opposed to generalized conclusory speculation) that the persecution against her father and the threats against Trujillo Diaz were motivated by family membership, as opposed to general criminal violence, which would not satisfy the statutory requirements for relief. The BIA provided the following analysis:
[T]here is no indication, beyond the respondent‘s and her father‘s generalized, conclusory speculation, that the cartel members who have recently threatened аnd/or harmed the respondent‘s father were actually motivated by his [family] membership. . . . [Her father‘s kidnapping] happened years after the ‘La Familia Michocana’ cartel‘s attempt to re-
cruit her brother and it was the Knights Templar, a different cartel, who kidnapped her father some 5 year [sic] later. The correlation of these events to the cartel‘s actions toward her father, if any, is unclear from the evidence provided.
So according to the BIA, Trujillo Diaz failed to show a likelihood that she would specifically be targeted on account of her familial membership because the primary еvidence she submitted to show this—her father‘s declaration—is speculative and conclusory. The BIA found his declaration speculative and conclusory because it determined that the evidence does not connect his kidnapping to his son‘s refusal to join the La Familia cartel.
But the only way that the BIA could have deemed that connection “unclear” is if it had discredited Trujillo Diaz‘s father‘s declaration. His declaration explicitly links his kidnapping (and the threats of harm to Trujillo Diaz) to his and his daughter‘s familial ties to his son, who refused to join the cartel. In his declaration, he described the Knights Templar members’ statements that revеaled the correlation between his kidnapping and his son‘s refusal to join the La Familia cartel: (1) they wanted to find Omar Daniel because they were angry that he had refused to join the cartel and fled to the United States; (2) they knew Trujillo Diaz‘s father was the father of Omar Daniel and Trujillo Diaz; and (3) they would hurt the rest of his family if they “could not get their hands on Omar Daniel and Maribel.” Trujillo Diaz‘s father did not speculate or draw conclusions as to the Knights Templar‘s motivation; he relayed precisely what they told him. Thus, the BIA discredited Trujillo Diaz‘s evidence of familial motivation. And because it dismissed this motivation, it determined that Trujillo Diaz‘s fear was not of being tаrgeted because she was part of a particular social group, but rather just a general fear of crime. See BIA Decision at 4 (referring to “the generalized nature of [Trujillo Diaz]‘s fear of future harm“). The BIA provided no other rationale for rejecting Trujillo Diaz‘s prima facie case of eligibility for asylum and withholding of removal under the INA. Looking only to what the BIA said in its opinion, as we must, see Daneshvar, 355 F.3d at 626, we find that this was an abuse of discretion.
The BIA‘s role in reviewing a motion to reopen is like a trial court‘s role in reviewing a motion for summary judgment. See Haftlang v. INS, 790 F.2d 140, 143 (D.C. Cir. 1986) (“In both cases the purpose of the inquiry is to isolate cases worthy of further consideration; in neither case is the cоurt or agency to assess the credibility of the evidence.“). Therefore, in adjudicating a motion to reopen, the BIA “must accept as true reasonably specific facts proffered by an alien in support of a motion to reopen unless it finds those facts to be inherently unbelievable.” Ibid. (internal quotation marks omitted).3 The pur-
To discredit facts in an affidavit, the BIA, not this court, must make the determination that a declaration is “inherently unbelievable.” Id. at 144, n.2; see Reyes v. INS, 673 F.2d 1087, 1090 (9th Cir. 1982) (distinguishing prior case finding no abuse of discretion by the Board because the Board found the еvidence to be inherently unbelievable). Here, the BIA did not explicitly find that Trujillo Diaz‘s father‘s declaration was “inherently unbelievable.” Nor did it make any findings that would indicate that it reached this conclusion. It did not find any internal inconsistencies in her father‘s declaration. See, e.g., Fessehaye v. Gonzales, 414 F.3d 746, 755 (7th Cir. 2005). It did not find that her father‘s declaration was “at odds with other materials” submitted by her. Ibid.; see Husyev v. Mukasey, 282 Fed.Appx. 619, 622 (9th Cir. 2008). And the BIA made no determination that Trujillo Diaz‘s father‘s affidavit was incompatible with some other incontrovertible piece of evidence. See Fessehaye, 414 F.3d at 755. Because the BIA made no such determination here, it should have accepted as true the facts contained in the declаration. When this is done, the BIA‘s conclusion that “there is no indication” that the cartel members were motivated by familial membership cannot be sustained.
The reason the BIA provided for rejecting Trujillo Diaz‘s evidence of familial motivation was that it was “generalized, conclusory speculation.” Of course, the BIA has the authority to reject a motion to reopen when it is supported only by conclusory evidence. See Zhang, 543 F.3d at 855. But Trujillo Diaz‘s father‘s affidavit contained concrete, factual assertions as to the familial motivation behind his kidnapping and the threat of harm to Trujillo Diaz. He described a specific incident, the kidnapping that he suffered. He conveyed the threats that the Knights Templar members made to him regarding Trujillo Diaz and the rest of his family. And he restated the motivation behind the Knights Templar‘s actions as relayed to him by them. Although broad deference is accorded to the BIA in evaluating motions to reopen, the BIA cannot deem reasonably specific evidence speculative or conclusory.
The BIA‘s failure to credit Trujillo Diaz‘s evidence of familial motivation permeated its order and directly led to the conclusion that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum and withholding of removal. After discrediting her evidence that she would specifically be targeted because of her familial membership, the BIA found that Trujillo Diaz‘s fear of future harm was merely a “generalized” fear of future harm, and not a fear of persecution that is protected under the Act. This finding resulted in the BIA‘s “afford[ing] limited weight” to the declaration submitted by Trujillo Diaz‘s expert, which included testimony that retaliatory violence against family members of those who refused to join cartels is widespread in Mexico, including among members of the Knights Templar, and that the Mexican government is complicit in the illegal activity of the Knights Templar.4 Had the BIA properly construed
Trujillo Diaz‘s father‘s affidavit, it may hаve afforded more weight to her expert‘s testimony and may have found that she established a likelihood that she would be “singled out individually” for persecution because of her membership in her family.
The BIA also determined that Trujillo Diaz‘s changed-country-conditions evidence “does not support [her] contention that she would specifically be targeted . . . due to her family membership.” According to the BIA, the reports reflect that the violence in Trujillo Diaz‘s hometown “stems from a territorial dispute between rival cartels, is widespread, and affects the populace in that area as a whole.” Evaluating Trujillo Diaz‘s changed-country-conditions evidence in this manner was within the discretion of the BIA, and the BIA provided a rational explanation for refusing to find that this evidence showed that she would specifically be targeted. See, e.g., Mirza v. Gonzales, 148 Fed.Appx. 467, 470 (6th Cir. 2005) (deferring to the BIA‘s conclusion that articles fail to show an objectively reasonable fear of persecution). But this provides no rational explanation for rejecting Trujillo Diaz‘s evidence of individualized fear—her father‘s affidavit describing his kidnapping and the direct threats against his family and Trujillo Diaz. It was this evidence that Trujillo Diaz submitted to show that she individually would be subject to more than general criminal acts that affect the rest of the population. See Akhtar, 406 F.3d at 405-06 (recognizing that membership in a family targeted for persecution may suffice to establish a well-founded fear of persecution if there is evidence beyond mere family membership tying the applicant family member to the persecution).
In sum, the BIA abused its discretion in finding that Trujillo Diaz failed to present prima facie evidence that her fear of persecution, or the threat to her life or freedom, was related to her family membership. Because this was the basis for the BIA‘s decision to deny her motion to reopen her proceedings, on remand it should consider the remаining aspects of her prima facie case for relief. See
ii. The BIA abused its discretion when it found that Trujillo Diaz failed to present a prima facie showing of eligibility for withholding of removal under the Convention Against Torture.
The BIA determined that Trujillo Diaz “failed to make a prima facie showing that she will more likely than not be tortured by, at the instigation of, or with consent or acquiescence of public officials . . . upon her repatriation.” It provided two reasons for this conclusion: (1) “there is no reliable evidence that the Knights Templar would specifically target [Trujillo Diaz] upon her repatriation” and (2) “[Trujillo Diaz] has not shown thаt she could not relocate to another area within Mexico to avoid future harm at the hands of the Knights Templar.”
The BIA failed to explain its alternate rationale for rejecting Trujillo Diaz‘s prima facie evidence of eligibility for Convention Against Torture relief. The BIA summarily rejected Trujillo Diaz‘s evidence that she could not relocate in Mexico: “Viewing the evidence as a whole, [Trujillo Diaz] has not shown that she could not relocate to another area within Mexico to avoid future harm at the hands of the Knights Templar.” See BIA Decision at 3. The BIA did not state why it found Trujillo Diaz‘s evidence that she could not relocate to be insufficient. Nor did it acknowledge any evidence that it сonsidered in determining that she could safely relocate within Mexico. Though it need not “write an exegesis on every contention,” the BIA must “consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984)); Al Roumy v. Mukasey, 290 Fed.Appx. 856, 860 (6th Cir. 2008) (concluding that BIA had “heard and thought and not merely reacted” where it explained the evidence presented and explained why the evidence was unpersuasive). “Cursory, summary, or conclusory statements are inadequate.” Daneshvar, 355 F.3d at 626. Here, the BIA abused its discretion by failing to provide any analysis of the relocation evidence for us to review.
On remand, the BIA should consider the evidence relating to the relocation issue, as we have instructed. See
In addition to considering Trujillo Diaz‘s relocation evidence, the BIA should also consider her changed-country-conditions evidence. Although the BIA concluded that this evidence did not support her contention that she would specifically be targeted because of her family membership, it did not address the sufficiency of this evidence for purposes of showing that conditions in Mеxico had changed. As we have previously explained, “a change in personal circumstances that is unaccompanied by a change in country conditions is
Julie PEFFER; Jesse Peffer, Plaintiffs-Appellants, v. Mike STEPHENS, Defendant-Appellee.
No. 17-1072
United States Court of Appeals, Sixth Circuit.
Decided and Filed: January 17, 2018
Rehearing En Banc Denied February 22, 2018
III
The BIA‘s abuse of discretion in failing to credit Trujillo Diaz‘s father‘s affidavit undermined its conclusion that Trujillo Diaz had not made a prima facie showing of eligibility for asylum and withholding of removal under the INA. This conclusion also affected the BIA‘s analysis of whether Trujillo Diaz made a prima facie showing of eligibility for protection under the Convention Against Torture. Further, the BIA abused its discretion in summarily rejecting Trujillo Diaz‘s argument that she could not safely relocate internally in Mexico for purposes of showing prima facie eligibility under the Convention Against Torture. Accordingly, we GRANT the petition and REMAND to the BIA for reconsideration consistent with this opinion.