Ixcoy Herrera v. Garland ( 2023 )

Case: 21-60120 Document: 00516631002 Page: 1 Date Filed: 02/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 1, 2023
No. 21-60120 Lyle W. Cayce
Clerk
Juana M. Ixcoy Herrera,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
A209 983 153
Before Jones, Ho, and Wilson, Circuit Judges.
Per Curiam:*
Petitioner seeks review of a final order of removal by the Board of
Immigration Appeals (BIA). She alleges that the BIA and Immigration Judge
(IJ) improperly shifted the burden of proof onto her and that their
conclusions were not supported by substantial evidence. We disagree and
deny her petition for review.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60120 Document: 00516631002 Page: 2 Date Filed: 02/01/2023
No. 21-60120
I.
Petitioner Juana M. Ixcoy Herrera is a native and citizen of Guatemala
and member of the Quiche-Mayan ethnic/indigenous group. Members of
this group have experienced prejudice and violence in that country.
A native of the municipality of Ixcán, Petitioner obtained a degree and
a job as a secretary, subsequently enrolling in university seeking a legal
education. During her employment and studies, Petitioner met and in 2012
married a Ladino man—a non-indigenous Guatemalan of European or mixed
descent. Upon her marriage, Petitioner left her studies and moved in with
her husband and his parents and two sisters. Petitioner’s sisters-in-law
displayed significant hostility toward Petitioner, directing their vitriol toward
her on numerous fronts: her ethnicity, her inability to have children, her
cooking, and their belief that their brother would be better matched with
either of two other women with whom he had fathered children. In light of
this conflict, Petitioner pressed her husband to find another living situation,
and he responded by building them a home of their own a mere ten meters
away from the family home. In 2015, Petitioner’s husband left Guatemala for
the United States.
In 2017, Petitioner was walking outside after work when she saw a man
whom she recognized as a relative of her sister-in-law’s friend. He was
staring at Petitioner and speaking on the phone. As she began driving home,
a masked man riding a motorcycle cornered her vehicle and shot at her
repeatedly at close range, hitting her hand and multiple places within her car
before she managed to speed away. Moments later, Petitioner saw her sister-
in-law standing on the side of the road. Petitioner remains convinced that the
attempted murder was commissioned by her sister-in-law.
Petitioner reported the incident to the police but did not tell them that
she suspected her sister-in-law’s involvement, an omission she attributes to
2
Case: 21-60120 Document: 00516631002 Page: 3 Date Filed: 02/01/2023
No. 21-60120
fear. The police accompanied Petitioner to the hospital, alerted the
prosecutor’s office, and conducted an investigation of the crime scene and an
examination of the vehicle. With very little to inform their investigation, the
police examined Petitioner’s vehicle, but they do not appear to have
investigated further and never followed-up or returned her calls.
Immediately following the incident, Petitioner fled to her parents’
home located in a rural indigenous community approximately two hours
away. She hid there for two months, quitting her job and rarely leaving the
house. When she did venture outside, it was always in the company of her
father or brother. Petitioner’s sister-in-law knew where she was staying
following the incident and telephoned Petitioner to offer her sympathy and
inquire as to the status of the investigation.
One week after arriving at her parents’ home, she received a phone
call from an anonymous male caller. He told her “he was going to finish
[her]” “when [she] least expect[ed] it” and demanded money. Petitioner
hung up, removed the SIM card, and changed her phone number. She and
her parents then traveled to the U.S. Embassy in Guatemala City to seek a
U.S. visa for her to leave Guatemala. When her visa application was
denied—and she was informed that she could not reapply for six months—
the family traveled together by car and by foot to the Mexican border, and
from there she traveled with her brother to the Texan border, where she
requested asylum relief.
At the U.S. border, Petitioner was found to have a credible fear of
persecution if she returned to Guatemala. In 2018, the IJ granted her asylum
relief on the basis that she experienced past persecution due to her
membership in the Quiche-Mayan ethnic/indigenous group. The BIA
remanded the case for further consideration of whether the Guatemalan
government would be unable or unwilling to protect Petitioner from future
3
Case: 21-60120 Document: 00516631002 Page: 4 Date Filed: 02/01/2023
No. 21-60120
persecution and whether it was unreasonable for her to relocate within
Guatemala.
On remand, the IJ reiterated that Petitioner had indeed experienced
past persecution due to her membership in a particular social group. But he
held that she was ultimately ineligible for asylum relief because she could
avoid future persecution by relocating internally. He did not reach the BIA’s
second question of whether the local government could protect her from
future harm. The BIA adopted and affirmed the IJ’s holding and dismissed
Petitioner’s appeal. Petitioner timely petitioned this court for review.
II.
As a general matter, we “only have authority to review the BIA’s
decision, although we may also review the IJ’s decision when it has some
impact on the BIA’s decision, as when the BIA has adopted all or part of the
IJ’s reasoning.” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir.
2010). “[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). See also Chen v. Gonzales, 470 F.3d 1131, 1134 (5th
Cir. 2006) (“Under the substantial evidence standard, reversal is improper
unless . . . . [t]he applicant . . . show[s] that the evidence is so compelling that
no reasonable factfinder could reach a contrary conclusion.”) (citation and
quotations omitted). Whether the BIA and IJ properly applied the burden of
proof is a question of law reviewed de novo. Mikhael v. I.N.S., 115 F.3d 299,
305 (5th Cir. 1997).
To be granted asylum in the United States, “[t]he burden of proof is
on the applicant to establish that the applicant is a refugee.” 8 U.S.C.
§ 1158(b)(1)(B)(i). The definition of “refugee” includes “any person who is
outside any country of such person’s nationality . . . and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or herself of
4
Case: 21-60120 Document: 00516631002 Page: 5 Date Filed: 02/01/2023
No. 21-60120
the protection of, that country because of persecution or a well-founded fear
of persecution on account of . . . membership in a particular social group.” 8
U.S.C. § 1101(a)(42). “An applicant who has been found to have established
such past persecution shall also be presumed to have a well-founded fear of
persecution.” 8 C.F.R. § 1208.13(b)(1).
Nevertheless, “[t]hat presumption may be rebutted,” and “an
immigration judge, in the exercise of his or her discretion, shall deny the
asylum application of an alien found to be a refugee on the basis of past
persecution if [the IJ] f[inds] by a preponderance of the evidence” that “[t]he
applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality . . . and under all the circumstances, it
would be reasonable to expect the applicant to do so.” Id. “In cases in which
an applicant has demonstrated past persecution,” the government “shall
bear the burden of establishing by a preponderance of the evidence the
requirements of” internal relocation. 8 C.F.R. § 1208.13(b)(1)(iii).
For purposes of determining the reasonableness of internal relocation,
“adjudicators should consider the totality of the relevant circumstances
regarding an applicant’s prospects for relocation, including the size of the
country of nationality or last habitual residence, the geographic locus of the
alleged persecution, the size, numerosity, and reach of the alleged
persecutor, and the applicant’s demonstrated ability to relocate to the United
States in order to apply for asylum.” 8 C.F.R. § 1208.13(b)(3).
III.
Petitioner challenges the decision on two grounds. First, she alleges
that the BIA and IJ improperly placed the burden of proof on her, rather than
on the government. Second, she asserts that their decision was not supported
by substantial evidence. Neither is persuasive.
5
Case: 21-60120 Document: 00516631002 Page: 6 Date Filed: 02/01/2023
No. 21-60120
Petitioner claims that the IJ improperly placed the burden of proof on
her, rather than the government, by pointing out how she was unable to
demonstrate that internal relocation was not feasible. She cites decisions of
our sister circuits holding that the burden of proof was improperly shifted by
asking an asylum applicant to prove a negative. See Juan Antonio v. Barr, 959
F.3d 778, 796 (6th Cir. 2020); Ortez-Cruz v. Barr, 951 F.3d 190, 201 (4th Cir.
2020); Qui Rong Chen v. U.S. Dep’t of Just., 195 F. App’x 16, 18 (2nd Cir.
2006); Mashiri v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004); Bace v.
Ashcroft, 352 F.3d 1133, 1140 (7th Cir. 2003), as modified on denial of
reh’g (Apr. 9, 2004).
But that’s not what happened here. The IJ in this case specifically
concluded that the government had “met its burden to show that internal
relocation is reasonable for the respondent and has rebutted the presumption
that internal relocation is not reasonable.” And for good reason. The IJ
found that, according to Petitioner’s own testimony, (1) Petitioner moved
just two hours away from where she was attacked; (2) Petitioner stayed there
for sixty days without harm to her person; (3) during that time, the purported
orchestrator of the attack knew where Petitioner was; and (4) Petitioner even
continued to speak on the telephone with the purported orchestrator.
We have held before that the government can meet its burden by
relying on an applicant’s testimony alone. See Singh v. Barr, 920 F.3d 255,
260 (5th Cir. 2019) (establishing that “the argument that the [government]
must affirmatively submit its own documentary evidence or summon its own
witnesses is belied by the text of the regulation, which simply requires the
[government] to rebut the presumption by the preponderance of the
evidence, not by its evidence”). Moreover, the IJ here relied not only on
Petitioner’s own statements, but also on reports and other evidence
submitted by the government.
6
Case: 21-60120 Document: 00516631002 Page: 7 Date Filed: 02/01/2023
No. 21-60120
In sum, the IJ considered “the totality of the relevant circumstances
regarding [Petitioner’s] prospects for relocation,” as is required under 8
C.F.R § 1208.13(b)(3). Petitioner is wrong to suggest that the conclusions of
the IJ and the BIA were not supported by substantial evidence such that “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B).
***
For the foregoing reasons, we deny the petition for review.
7