Karla Gavidia-Escobar v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0213n.06
No. 18-3841
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
KARLA ROXANA GAVIDIA-ESCOBAR, ) Apr 25, 2019
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
ON PETITION FOR REVIEW
v. )
FROM THE UNITED STATES
)
BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, )
APPEALS
)
Respondent. )
)
BEFORE: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Karla Roxana Gavidia-Escobar, a native and citizen of El Salvador, petitions this court for
review of a Board of Immigration Appeals (BIA) order dismissing her appeal from the denial of
her applications for asylum and withholding of removal under the Immigration and Nationality
Act (INA) and protection under the Convention Against Torture (CAT). In addition to the merits
of these claims, she faults the Immigration Judge (IJ) for not granting her a continuance to have
certain documents translated into English. For the reasons that follow, we deny her petition.
I.
Along with her minor son, petitioner entered the United States without inspection in July
2015. After being placed in removal proceedings, she conceded removability and applied for
asylum, withholding of removal, and CAT protection, asserting past persecution and fear of future
persecution if removed to El Salvador. Prior to her hearing before an IJ, her counsel sought a
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continuance to get corroborating documents translated into English for use at the hearing. The IJ
found petitioner’s request “reasonable,” but denied the motion. He reasoned there was no need to
continue the hearing because he was just going to “accept [petitioner]’s version of events as true,”
and thus there was no prejudice to petitioner.
With this procedural issue resolved, the hearing turned to petitioner’s testimony in support
of her claims. She focused solely on deplorable conduct by the MS-13 gang as a basis for her
reason for leaving El Salvador for the United States. Beginning in 2006, gang members tried to
get petitioner’s brother, a member of the Armed Forces of El Salvador, to steal weapons for them.
He refused, leading to threats to “take away his family.” Those threats materialized in 2009, when
gang members killed the father of petitioner’s son (as witnessed by petitioner’s brother). Police
arrested a gang member for the murder, and petitioner’s brother testified against the gang member.
However, petitioner’s brother stopped cooperating after receiving additional threats from the gang,
and the gang member was released.
Petitioner’s brother continued to rebuff the gang members’ requests for him to steal
weapons, so gang members killed their mother in 2011. A gang member responsible for her
mother’s murder was arrested, tried, convicted, and sentenced to fifteen years in prison. Gang
members then demanded petitioner’s brother leave the military because he was the only military
member in their neighborhood, which he did in 2012. He eventually immigrated to Guatemala,
and then the United States.
With petitioner’s brother out of the country, gang members turned their threats to
petitioner’s son, Carlos. They wanted to make sure that he did not join the military. And they
wanted him to join the gang. So they beat up Carlos, and gave petitioner an ultimatum: give
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Carlos to the gang within a week, or he will be killed. Petitioner and her son chose to flee to the
United States instead.
Following the hearing, the IJ found petitioner to be credible, but ineligible for relief. As
relevant here, the IJ found petitioner had not “experienced harm”—either past harm or fear of
future harm—“which would rise to the level of persecution.” And the IJ concluded petitioner did
not show “that the government of El Salvador is unable or unwilling to control the MS-13 gang”
or that “the government of El Salvador would acquiesce in [petitioner]’s torture, or would be
willfully blind to the actions of the MS-13 gang members.” Accordingly, the IJ found petitioner
ineligible for asylum and withholding of removal, and for CAT protection.
The BIA upheld the IJ’s decision. It “agree[d] with the Immigration Judge that
[petitioner’s] mistreatment, considered cumulatively, is insufficient to rise to the level of past
persecution.” It also agreed that petitioner had not established a well-founded fear of future
persecution, noting the “gang’s motivation was to increase its ranks” and that there was “no
evidence that gang members have an inclination to harm the respondent to punish her for being a
member of her son’s family.” Therefore, the BIA concluded petitioner was ineligible for asylum
and withholding of removal. The Board also agreed petitioner did not meet her burden of proof to
establish CAT protection. This timely petition for review followed.
II.
“When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion,
as supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246
(6th Cir. 2009). We “directly review[] the decision of the IJ while considering the additional
comment made by the BIA.” Id. (internal quotation marks and citation omitted). We review issues
of law de novo and evaluate the factual findings of the IJ and the BIA using the substantial-
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evidence standard. Id. Under this highly deferential standard, “[t]hese findings are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” Khalili v.
Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citation and internal quotation marks omitted).
III.
Under the INA, the Attorney General has discretion to grant asylum to applicants who meet
the definition of a “refugee.” 8 U.S.C. § 1158(b). “Ordinarily, there are two ways in which an
applicant may qualify as a refugee: either by demonstrating that she has a well-founded fear of
future persecution on account of a protected characteristic or by demonstrating that she has
suffered past persecution—which gives rise to a rebuttable presumption that she has a well-
founded fear of future persecution.” Yousif v. Lynch, 796 F.3d 622, 628 (6th Cir. 2015) (internal
quotation marks omitted).
Petitioner asserts the physical and emotional harm MS-13 subjected her to, due to her
familial status, rises to the level of past-persecution and qualifies as a well-founded fear of future
persecution. There’s no doubt the gang subjected her to significant harm—gang members killed
both the father of her child and her mother, and threatened her brother, her son, and her. Although
we are sympathetic to petitioner’s plight, we discern no error mandating relief under the INA.
Petitioner’s claim for relief focuses solely on the conduct of the MS-13 gang. “When an
asylum claim focuses on non-governmental conduct, its fate depends on some showing either that
the alleged persecutors are aligned with the government or that the government is unwilling or
unable to control them.” Khalili, 557 F.3d at 436 (citation omitted). Here, the record
demonstrates—and petitioner does not contest—that although “the conditions of crime and
violence in El Salvador are indeed dire, . . . , the government of El Salvador is making its best
efforts to fight these criminal actors in that country.” And specific to petitioner’s claim, the
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government has taken some steps to control the MS-13 gang members responsible for inflicting
harm on petitioner and her family—it arrested, jailed, and tried the member who murdered her
mother, and arrested, jailed, and attempted to try the member who murdered the father of her son.
We therefore cannot conclude, on the basis of this record, that a reasonable adjudicator would be
compelled to find that petitioner was harmed by persons that the El Salvadoran government was
either unwilling or unable to control. Her claim for asylum therefore fails. Cf. Galdamez v. Lynch,
630 F. App’x 608, 610 (6th Cir. 2015) (“Galdamez’s claim for withholding of removal also failed
because he had not demonstrated that the government in El Salvador was unwilling or unable to
control the gangs and protect him from harm. The record, which reflects the government’s efforts
to control the gangs, does not compel a contrary conclusion.” (citation omitted)).
IV.
The INA mandates withholding of removal if an alien establishes that her “life or freedom
would be threatened in that country because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). This is “a more
stringent burden than what is required on a claim for asylum”; the alien must establish “that there
is a clear probability that [s]he will be subject to persecution if forced to return to the country of
removal.” Urbina-Mejia v. Holder, 597 F.3d 360, 365 (6th Cir. 2010) (citations omitted). Because
petitioner failed to establish her eligibility for asylum, she necessarily failed to satisfy this “more
onerous burden.” Kukalo v. Holder, 744 F.3d 395, 402 (6th Cir. 2011) (citation omitted).
V.
To prevail on her petition for withholding of removal under the CAT, petitioner must prove
“it is more likely than not that . . . she would be tortured if removed” to El Salvador. Shkulaku-
Purballori v. Mukasey, 514 F.3d 499, 503 (6th Cir. 2007) (citation omitted). “Torture” is “the
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intentional infliction of severe mental or physical pain upon an individual ‘by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an official
capacity.’” Alhaj v. Holder, 576 F.3d 533, 539 (6th Cir. 2009) (quoting 8 C.F.R. § 208.18(a)(1)).
Acts amounting to torture are “extreme”; they do not include “lesser forms of cruel, inhuman, or
degrading treatment or punishment.” Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006)
(quoting 8 C.F.R. § 1208.18(a)(2)).
In conclusory fashion, petitioner asserts “[t]here is enough evidence . . . that shows that El
Salvador has not been able to control the strengthening of the MS-13 and with the corruption
among the police and government authorities, there ha[ve] been many cases of acquiescence and
willful blindness to the violence by the MS-13 and the [murder of the father of petitioner’s son] is
one example.” But yet she does so without citation to the administrative record, and has thus
abandoned any challenge to the determination below that “[t]here is clearly no proof that the
government of El Salvador would acquiesce in [petitioner]’s torture, or would be willfully blind
to the actions of the MS-13 gang members.” See, e.g., Vander Boegh v. EnergySolutions, Inc.,
772 F.3d 1056, 1063 (6th Cir. 2014).
VI.
Finally, petitioner claims the IJ stripped her of due process by failing to grant a continuance
in order to obtain translated documents. When reviewing alleged due process violations in removal
hearings, we must determine whether there was a defect in the proceedings that prejudiced the
petitioner. Zheng v. Lynch, 819 F.3d 287, 296 (6th Cir. 2016). Absent a showing that a due process
violation “led to a substantially different outcome from that which would have occurred in the
absence of those violations,” such a claim fails. Id. at 297 (citation omitted). Petitioner makes no
such showing here—she does not explain why the documents she wanted translated would have
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led “to a substantially different outcome,” especially given that the IJ credited her version of the
events (which the documents would have apparently corroborated).
VII.
For these reasons, we deny the petition for review.
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