Zoila Santizo-Soto v. Merrick B. Garland ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0408n.06
No. 23-3468
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Oct 17, 2024
ZOILA SANTIZO-SOTO, et al.
) KELLY L. STEPHENS, Clerk
Petitioners, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE BOARD OF
MERRICK B. GARLAND, Attorney General ) IMMIGRATION APPEALS
Respondent. )
)
Before: McKEAGUE, KETHLEDGE, and NALBANDIAN, Circuit Judges.
KETHLEDGE, Circuit Judge. Zoila Eliza Santizo-Soto, on behalf of herself and four of
her children, petitions for review of the Board of Immigration Appeals’ denial of her applications
for asylum and withholding of removal as well as its denial of her motion to terminate her removal
proceedings. We deny the petition.
I.
Santizo-Soto entered the United States without authorization in January 2014. The
government began removal proceedings that same month. In 2016, Santizo-Soto conceded
removability but requested asylum and withholding of removal. Three years later, an immigration
judge held a hearing and found her testimony credible as to the following facts.
Santizo-Soto is a member of the indigenous Mam ethnic group in Guatemala. She says
that she has suffered “significant harm and systematic discrimination in Guatemala on account of
her status as an indigenous Guatemalan woman.” Her testimony recounts four incidents.
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One was that, when Santizo-Soto was about nine years old, a teacher singled her out for
being “all red” (because she was wearing a red sweater) and called her “painted face” (because,
she assumes, her face had some black spots). She also said the teachers struck her and other
students—all of whom were Mam—with rulers. Her parents never reported these incidents
because they were afraid the teachers would leave the village.
Santizo-Soto also alleged two incidents of sexual assault. In 1994, when she was nine years
old, her mother briefly left her alone in a field where they were planting potatoes, and a teenage
boy—also Mam—approached her. He tried to kiss her; she pushed him away. Five years later,
while Santizo-Soto was working as a housekeeper, her boss’s son entered the room where she was
cleaning, hugged her, and tried to remove her clothes. She screamed and fought him off. She did
not tell the police because she assumed “no one would believe her.”
Finally, Santizo-Soto testified that, at a parade in 2013, someone told her husband that
“they were looking for him, and if they didn’t get him, they were going to get his family.” While
driving soon afterward, a wheel came off their car. They later discovered that someone had
loosened the wheel’s lug nuts.
The IJ denied relief, finding that Santizo-Soto had shown neither past persecution nor a
likelihood of persecution in the future. She appealed to the Board, and also moved that the Board
terminate her removal proceedings, arguing for the first time that her notice to appear was
defective. The Board dismissed her appeal and denied her motion. This petition for review
followed.
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II.
We review the Board’s legal determinations de novo and its factual findings for substantial
evidence—meaning we uphold the Board’s factual findings “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
A.
To be eligible for asylum under the Immigration and Nationality Act, Santizo-Soto must
demonstrate that she is a “refugee”—someone “who is unable or unwilling to return to” her country
of origin “because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). For persecution to occur “on account of” a particular social group (or another
protected characteristic), membership in that social group must be “at least one central reason” for
the harm one experiences. 8 U.S.C. § 1158(b)(1)(B)(i). And for fear of future persecution to be
“well-founded,” a petitioner “must offer reasonably specific information showing a real threat of
individual persecution.” Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007) (citations
omitted).
Santizo-Soto challenges the Board’s determination that she has not shown persecution here.
The Board found that the two alleged sexual assaults did not amount to persecution because neither
had anything to do with her indigenous status. See Sabastian-Andres v. Garland, 96 F.4th 923,
930–31 (6th Cir. 2024). That remains true regardless of whether (as Santizo-Soto alleges here) a
“machismo culture” prevails in Guatemala generally.
Nor has Santizo-Soto shown that the punishment her schoolteachers inflicted or the
incident with the car wheel entitle her to relief. Among other things, the schoolteachers’
punishment did not remotely amount to persecution as defined by the Act, and the car incident had
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nothing to do with her indigenous status. See Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.
1998); Sabastian-Andres, 96 F.4th at 930–31.
B.
That leaves the Board’s denial of Santizo-Soto’s motion to terminate her removal
proceedings. She argues her proceedings must be terminated because her original notice to appear
omitted the time and place of her removal hearing. See 8 U.S.C. § 1229(a)(1)(G).
Santizo-Soto does not dispute the Board’s conclusion that the rule she invokes here—that
the notice was defective—is a claims-processing rule. Her argument is therefore subject to waiver
and forfeiture. See Eberhart v. United States, 546 U.S. 12, 19 (2005). The Board deemed this
argument forfeited because Santizo-Soto never presented it to the IJ. She counters now that she
could not have raised it then because (she says) the argument is based on the Supreme Court’s
decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021). But Niz-Chavez did not change the law
in the manner Santizo-Soto suggests. The Court in Niz-Chavez interpreted a statute that had been
in effect since 1997; the Court simply explained what it had meant all along. Nothing prevented
Santizo-Soto from making to the IJ the same statutory argument that Niz-Chavez made in his
immigration proceedings. The Board was therefore right to conclude that Santizo-Soto had
forfeited this argument.
The petition for review is denied.
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