Basilio Barcenas-Sales v. Merrick B. Garland ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0097n.06
Case No. 21-3092
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 03, 2022
)
BASILIO BARCENAS-SALES, DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
MERRICK B. GARLAND, Attorney General, ) APPEALS
Respondent. )
)
Before: McKEAGUE, BUSH, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Basilio Barcenas-Sales is scheduled to be deported
to Mexico, his home country. To avoid that result, Barcenas-Sales seeks review of a Board of
Immigration Appeals decision denying his application for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A). According to Barcenas-Sales, the Board erred in assessing his risk of future
persecution at the hands of drug cartels. But substantial evidence supports the Board’s decision.
And as the Board otherwise made no error in measuring Barcenas-Sales’s risk of future
persecution, we deny his petition.
BACKGROUND
Barcenas-Sales, a Mexican citizen, entered the United States illegally and remained in the
country for nearly two decades. Several run-ins with law enforcement brought Barcenas-Sales to
the attention of the Department of Homeland Security, which instituted removal proceedings
against him.
Case No. 21-3092, Barcenas-Sales v. Garland
During those proceedings, Barcenas-Sales sought withholding of removal, a remedy
available to those who would suffer persecution upon return to their home country due to their
membership in a protected group. 8 U.S.C. § 1231(b)(3)(A). Barcenas-Sales asserted that, as a
member of a family with two members murdered by cartels, his safety would be at risk if he
returned to Mexico. To further the point, Barcenas-Sales submitted a variety of secondary sources
demonstrating the dangerous state of affairs in Mexico. Those materials included a State
Department report on human rights in Mexico, two news stories about crime in the country, and
several third-party reports about human rights violations there. In many respects, Barcenas-Sales’s
evidence recognized the vast scope of private criminal activity in the country. But those materials
also highlighted ongoing government efforts to address cartel violence. One document described
a recent reduction in violence as well as Mexico’s successes in combatting the cartels. A State
Department report described how the Mexican government had “revamped” its efforts to combat
cartel abductions by arresting and indicting hundreds of individuals in one year. And an article
from the Associated Press discussed the Mexican government’s “crackdown on drugs.”
After considering these submissions, the Immigration Judge (IJ) overseeing Barcenas-
Sales’s removal proceeding denied his request for relief. In the IJ’s view, Barcenas-Sales failed
to demonstrate a clear probability of future persecution at the hands of a cartel. That was so, the
IJ concluded, both because Barcenas-Sales lacked evidence of past persecution and because he had
little evidence that present-day conditions threatened his safety specifically. On that latter point,
the IJ deemed evidence that cartels had targeted his family speculative, noting that his family
continued to reside in Mexico “without harm.” Much the same was true as to evidence concerning
Mexico’s general conditions. Acknowledging Mexico to be “a dangerous and violent country,”
2
Case No. 21-3092, Barcenas-Sales v. Garland
the IJ nonetheless did not view the record as demonstrating that the government was unable to
control the cartels, noting that Mexico “continues to fight against these criminal actors.”
Barcenas-Sales appealed to the Board. But he fared no better. Reviewing the IJ’s findings,
the Board concluded that the IJ had not committed clear error. In particular, the Board agreed with
the IJ that Barcenas-Sales failed to establish that the Mexican government would be unable or
unwilling to protect him from cartel violence.
ANALYSIS
We review the Board’s decision as the final agency determination. Khalili v. Holder,
557 F.3d 429, 435 (6th Cir. 2009). To the extent the Board adopted the IJ’s reasoning, however,
we necessarily review the IJ’s decision too. Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir.
2015). We review the Board’s legal determinations de novo and its findings of fact for substantial
evidence. Mandebvu v. Holder, 755 F.3d 417, 424 (6th Cir. 2014). Under this deferential standard,
an agency’s factual findings “are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary[.]” 8 U.S.C. § 1252(b)(4)(B).
To qualify for withholding of removal, Barcenas-Sales must show his “life or freedom
would be threatened” based on his “race, religion, nationality, membership in a particular social
group, or political opinion” if he is removed to Mexico. Id. § 1231(b)(3)(A). Barcenas-Sales
maintains that he meets this standard due to membership in his family, a status we have previously
recognized can constitute membership in a “particular social group.” See Al-Ghorbani v. Holder,
585 F.3d 980, 995 (6th Cir. 2009). The Board’s determination stands, however, unless it erred in
assessing whether Barcenas-Sales’s “life or freedom would be threatened” if he were to return to
Mexico. 8 U.S.C. § 1231(b)(3)(A). To demonstrate error in this respect, Barcenas-Sales must
show there is a “clear probability that he will be subject to persecution if forced to return” to
3
Case No. 21-3092, Barcenas-Sales v. Garland
Mexico. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (citations omitted). And that
persecution must be “sufficiently tied” to the Mexican government. See Ortiz v. Garland, 6 F.4th
685, 688 (6th Cir. 2021) (defining persecution).
That latter consideration bears on Barcenas-Sales’s claim. He does not argue that he is at
risk of persecution by the government itself, the most direct way to show that a harm is
“sufficiently tied to a country’s government.” Id. Instead, Barcenas-Sales maintains that he faces
future persecution by private parties—Mexican drug cartels. To show a risk of persecution tied to
governmental action, then, Barcenas-Salas must demonstrate that the Mexican “government is
unwilling or unable to control” the cartels, K. H. v. Barr, 920 F.3d 470, 475 (6th Cir. 2019)—that
is, that he “could not reasonably expect the assistance of the government” in preventing
persecution by a cartel, Al-Ghorbani, 585 F.3d at 998. Two factors inform this consideration. One
is the government’s response to the specific risks the applicant faces. K.H., 920 F.3d at 475–76.
The other is an assessment of general country conditions, such as the country’s broad “social,
economic, and cultural realities.” Id. at 477–78.
With these guideposts in mind, we examine the “totality of the evidence” to determine
whether substantial evidence supports the Board’s findings. Ortiz, 6 F.4th at 689 (rejecting
reliance on a “categorical rule” to determine risk of future persecution in favor of a “totality of the
evidence” approach). And based on these metrics, Barcenas-Sales falls well short of
demonstrating by a clear probability that he could not “reasonably expect” Mexican government
“assistance” against the cartels. Start with the specific risks facing Barcenas-Sales. In findings
that Barcenas-Sales does not take issue with here, the Board and IJ concluded that he lacked
evidence demonstrating a threat posed to him specifically by cartel violence. Likewise, both the
Board and IJ found that Barcenas-Sales failed to show that the Mexican government did not protect
4
Case No. 21-3092, Barcenas-Sales v. Garland
his family members from the cartels. In fact, just the opposite. As the IJ observed, members of
Barcenas-Sales’s immediate family continue to live in his hometown without incident.
Now turn to the general country conditions. Here, the record contains conflicting evidence
of Mexico’s ability and willingness to fight the cartels. On the one hand, there is evidence of vast
criminal activity by Mexican cartels. But on the other, there is evidence that an increasingly
resolved Mexican government is having some success against the cartels. In view of this
conflicting evidence, we cannot say that “any reasonable adjudicator would be compelled to
conclude” that Barcenas-Sales cannot expect government assistance against the cartels. 8 U.S.C.
§ 1252(b)(4)(B). Balancing Barcenas-Sales’s weak evidence on general country conditions
against the dearth of evidence concerning any specific risks he might face in Mexico, substantial
evidence supports the Board’s decision.
Seeing things differently, Barcenas-Sales contends that, even if Mexico is willing to fight
the cartels, the evidence demonstrates that Mexico is unable to do so. Rather than looking at the
totality of the evidence, Barcenas-Sales presses us to adopt a categorical rule: unless a country is
“winning the fight” against criminal activity, there should be a finding of future persecution. That,
however, is not the law. When determining a risk of future persecution by a private party, we
consider evidence of both the government’s specific efforts to protect the applicant as well as the
country’s general conditions. Ortiz, 6 F.4th at 689. More to the point, we have never held that a
country must be victorious in its crimefighting efforts before the Board can reject a claim of future
persecution. Instead, we look to whether the government is “taking steps” that would protect the
applicant from private harm. Id. at 690; see, e.g., Sebastian-Gaspar v. Garland, 852 F. App’x 973,
975 (6th Cir. 2021) (finding no risk of future persecution even where evidence showed the police
had failed to control gangs in parts of Guatemala because there was evidence of the government’s
5
Case No. 21-3092, Barcenas-Sales v. Garland
ongoing “campaign” to address the problem); Hamzah v. Holder, 428 F. App’x 551, 558 (6th Cir.
2011) (rejecting the argument that the government was unable to protect the applicant as country
reports showed that the government “continued to make strides” to prosecute the crimes at issue);
see also Rosa-Mejia v. Garland, 854 F. App’x 9, 13–14 (6th Cir. 2021) (similar); José-Tomás v.
Barr, 822 F. App’x 354, 358–59 (6th Cir. 2020) (similar); Velasquez-Rodriguez v. Whitaker,
762 F. App’x 241, 245 (6th Cir. 2019) (similar).
At bottom, Barcenas-Sales takes issue with the agency’s finding that Mexican authorities
are having success in reducing private violence. Reasonable minds might disagree with that
conclusion. But we will “not reverse such findings simply because we [could] have decided them
differently.” Al-Ghorbani, 585 F.3d at 991. With substantial evidence supporting the Board’s
determination regarding Barcenas-Sales’s risk of future persecution, we need not consider his
alternative argument on appeal concerning the nexus between his protected status and any
persecution.
CONCLUSION
For these reasons, we deny the petition for review.
6