Maribel Trujillo Diaz v. Jefferson Sessions , 880 F.3d 244 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0012p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARIBEL TRUJILLO DIAZ, ┐
Petitioner, │
│
> No. 17-3669
v. │
│
│
JEFFERSON B. SESSIONS, III, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals.
No. A 088 922 375.
Decided and Filed: January 17, 2018
Before: MERRITT, MOORE, and BUSH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kathleen C. Kersh, Emily M. Brown, ADVOCATES FOR BASIC LEGAL
EQUALITY, INC., Dayton, Ohio, for Petitioner. Brooke M. Maurer, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
_________________
OPINION
_________________
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
No. 17-3669 Trujillo Diaz v. Sessions Page 2
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 untimely filed,
rendering her ineligible for asylum and requiring her claim to be assessed under the higher “clear
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.
No. 17-3669 Trujillo Diaz v. Sessions Page 3
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 join the La Familia cartel. “The men” told him that they “wanted to find
Omar Daniel because they were upset that he would not work for the gang” and that “[t]hey
were very angry that they could not find Omar Daniel because he had fled to the United States.”
They mentioned Trujillo Diaz by name, telling her father that they “knew [he] was the father of
Omar Daniel and Maribel,” and that they “knew that Maribel had gone to the United States too.”
They threatened to “hurt the rest of [his] family if they could not get their hands on Omar Daniel
and Maribel.”
Based on this new information, Trujillo Diaz filed a motion to reopen her immigration
proceedings and a motion to stay removal. Because her motion 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 she 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
No. 17-3669 Trujillo Diaz v. Sessions Page 4
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).
B. Discussion
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
(1992); INS v. Abudu, 485 U.S. 94, 107–08 (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 (1981))). Evincing the importance of finality, both temporal and
numerical limits apply to motions to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
1
Although Trujillo Diaz had already been deported at the time of the BIA’s decision, the BIA maintained
jurisdiction to complete its review of her motion to reopen proceedings. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
Pruidze v. Holder, 632 F.3d 234, 235 (6th Cir. 2011) (holding that the BIA has jurisdiction to consider motions to
reopen filed by applicants who have departed the United States subject to an order of removal).
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§ 1003.2(c). Generally, a motion to reopen must be filed within ninety days of the final
administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
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.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3); Alizoti, 477 F.3d at 451–52; Haddad v. Gonzales,
437 F.3d 515, 517–18 (6th Cir. 2006). Trujillo Diaz filed her motion to reopen under this
“changed country conditions” exception.
The Supreme Court has 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). 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.”); see also Fed.
Power Comm’n v. Texaco Inc., 417 U.S. 380, 397 (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.
No. 17-3669 Trujillo Diaz v. Sessions Page 6
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
of 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 F. App’x 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 statutory requirements for relief have been satisfied.” Alizoti,
477 F.3d at 452 (quoting In re S-V-, 22 I & N Dec. at 1308).
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 threatened” (for withholding of removal) on account of a
protected ground—“race, religion, nationality, membership in a particular social group,2 or
political opinion.” 8 U.S.C. §§ 1101(a)(42) (asylum); 1231(b)(3) (withholding of removal). One
method for proving this “well-founded fear of persecution” or “threat to life or freedom” is by
establishing a likelihood of the applicant’s being “singled out individually” for persecution on
the basis of a protected ground. 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2); see Akhtar v.
Gonzales, 406 F.3d 399, 404 (6th Cir. 2005).
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 reasonably 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).
2
Here, the BIA recognized that membership in a family can constitute membership in a “particular social
group” and therefore a protected ground under the INA for purposes of obtaining asylum and withholding of
removal. See, e.g., Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009). The BIA did not deny Trujillo Diaz’s
motion to reopen on the ground that she failed to establish that her family constituted a “particular social group,” so
we do not address that aspect of her case. See Daneshvar, 355 F.3d at 626.
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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 F. App’x 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) (overturning BIA’s denial of motion to reopen where applicant
submitted a letter from the governing body of her village stating that it was aware that she had
given birth to a third child in the United States and that she “certainly will be subjected to
sterilization procedures” unless she obtained citizen or permanent-resident status or an advanced
degree in the United States); Shardar v. Attorney Gen. of U.S., 503 F.3d 308, 316–17 (3d Cir.
2007) (concluding that affidavit from applicant’s brother showed a significant likelihood that
applicant would be subjected to particularized persecution when the affidavit stated that
individuals associated with a political party had targeted applicant’s family members for
persecution because of their association with an opposing party, and these individuals had made
a specific inquiry about applicant).
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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, the 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 the 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:
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[T]here is no indication, beyond the respondent’s and her father’s generalized,
conclusory speculation, that the cartel members who have recently threatened
and/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 recruit 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 evidence 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 revealed 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 targeted
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.
No. 17-3669 Trujillo Diaz v. Sessions Page 10
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 court 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 purpose of this rule is to ensure that the applicant has
had her day in court to demonstrate the truth of facts alleged. Ibid.
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 evidence 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, 414 F.3d at 755. It did not find
that her father’s declaration was “at odds with other materials” submitted by her. Ibid.; see
Husyev v. Mukasey, 282 F. App’x 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 declaration. When this is done, the BIA’s
3
This rule is widely applied by our sister circuits. See M.A. A26851062 v. U.S. INS, 858 F.2d 210, 216 (4th
Cir. 1988) (stating rule), on reh’g sub nom. M.A. v. U.S. INS, 899 F.2d 304 (4th Cir. 1990); Bhasin v. Gonzales,
423 F.3d 977, 987 (9th Cir. 2005) (same); Gebremichael v. INS, 10 F.3d 28, 40 (1st Cir. 1993) (stating that for
purposes of a motion to reopen “common notions of fair play and substantial justice generally require that the Board
[and, thus, the reviewing court] accept as true the facts stated in an alien’s affidavits”) (alteration in original);
Shardar, 503 F.3d at 317 (stating rule and emphasizing that applicant’s brother’s affidavit, which indicated that
perpetrators specifically asked about applicant’s whereabouts, “must be accepted as true at the motion-to-reopen
stage”); Alanwoko v. Mukasey, 538 F.3d 908, 914 (8th Cir. 2008) (accepting applicants’ evidence as true, but
denying motion to reopen because evidence did not establish a relationship between an attack and Muslim
persecution of Christians); Fessehaye v. Gonzales, 414 F.3d 746, 755 (7th Cir. 2005) (accepting as true applicant’s
affidavit on motion to reopen proceedings where affidavit contained no internal inconsistencies that called into
question its veracity and was not “at odds with other materials” that applicant submitted in support of her motion to
reopen).
No. 17-3669 Trujillo Diaz v. Sessions Page 11
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 have afforded more weight to her expert’s
4
The BIA also discredited Trujillo Diaz’s expert’s declaration because his conclusions “appear[ed] to be
drawn primarily from the account of recent events”—i.e., her father’s kidnapping—“as relayed by” Trujillo Diaz,
who lacked “personal knowledge of these events.” But Trujillo Diaz’s declaration made clear that she was
describing what her father told her, and her account of those events was consistent with her father’s declaration. In
preparing his declaration, the expert reviewed Trujillo Diaz’s supporting documents, which included her father’s
declaration. Thus, it is unclear to us why the BIA discredited the expert’s affidavit. Without finding any
inconsistencies between Trujillo Diaz’s affidavit and her father’s, there is simply no “rational explanation” for
discrediting the expert’s declaration on these grounds. See Allabani, 402 F.3d at 675. This constituted an abuse of
discretion.
No. 17-3669 Trujillo Diaz v. Sessions Page 12
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 F. App’x 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 (6th Cir. 2005) (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 remaining aspects of her prima facie
case for relief. See 8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(2).
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:
No. 17-3669 Trujillo Diaz v. Sessions Page 13
(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 that she could not relocate to
another area within Mexico to avoid future harm at the hands of the Knights Templar.”
The BIA’s first rationale relied entirely on its analysis of Trujillo Diaz’s asylum and
withholding-of-removal claims—i.e., its rejection of Trujillo Diaz’s claim that she would
specifically be targeted because of her family membership. See BIA Decision at 3 (“[W]e
reiterate that there is no reliable evidence that the Knights Templar would specifically target
[Trujillo Diaz] upon her repatriation.”). Because this finding was based on an abuse of
discretion in failing properly to credit Trujillo Diaz’s father’s declaration, it cannot provide the
basis for denying her Convention Against Torture claim.
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 considered 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 F. App’x 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 8 C.F.R. § 1208.16(c)(3)(ii) (listing “[e]vidence that the applicant could
relocate to a part of the country of removal where he or she is not likely to be tortured” as one of
No. 17-3669 Trujillo Diaz v. Sessions Page 14
the factors a court should analyze in determining whether an applicant has carried her burden);
cf. Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1140 (7th Cir. 2015) (“And though the
immigration judge remarked that the Mexican government was trying to control the drug gangs,
it is success rather than effort that bears on the likelihood of the petitioner’s being killed or
tortured if removed to Mexico.”). The BIA did not discuss relocation for purposes of asylum and
withholding of removal under the INA. Therefore, the BIA should address in the first instance
whether Trujillo Diaz can reasonably relocate to another part of Mexico. See 8 C.F.R.
§§ 1208.13(b)(2), 1208.16(b)(2); see also Gonzales v. Thomas, 547 U.S. 183, 185–86 (2006)
(This “matter requires determining the facts.”).
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 Mexico had changed. As we have previously explained, “a change in personal
circumstances that is unaccompanied by a change in country conditions is insufficient to reopen
proceedings.” Zhang v. Holder, 702 F.3d 878, 879–80 (6th Cir. 2012); see Maldonado-Torres v.
Holder, 573 F. App’x 474, 476 (6th Cir. 2014) (finding no abuse of discretion where the BIA
denied motion to reopen despite applicant’s allegations that cartel members abducted his brother
and had made a direct threat toward applicant because applicant failed to provide any evidence
of changed country conditions in Mexico). Therefore, the BIA should consider the sufficiency of
this evidence on remand.
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
No. 17-3669 Trujillo Diaz v. Sessions Page 15
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.