Maria Gallegos-Alvarez v. Jefferson Sessions, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0490n.06
Case No. 18-3106
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 02, 2018
MARIA DE LA LUZ GALLEGOS-ALVAREZ; ) DEBORAH S. HUNT, Clerk
JOVANI JIMENEZ-GALLEGOS; MARIO )
EZEQUIEL GALLEGOS ALVAREZ, )
) ON PETITION FOR REVIEW
Petitioners, ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
v. ) APPEALS
)
JEFFERSON B. SESSIONS, III, Attorney )
General, )
) OPINION
Respondent. )
BEFORE: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.
COLE, Chief Judge. Maria De La Luz Gallegos-Alvarez, a forty-year-old native and
citizen of Mexico, entered the United States without inspection in February 2014, along with her
adult son Mario and minor son Jovani. The Gallegos family1 now petitions for review of a decision
by the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of their
applications for asylum, request for withholding of removal, and protection under the Convention
Against Torture (“CAT”). The BIA found that Maria Gallegos-Alvarez (“Gallegos”) had not
1
Maria Gallegos-Alvarez’s minor son, Jovani, is a derivative beneficiary of his mother’s asylum application. See
Akhtar v. Gonzales, 406 F.3d 399, 406 (6th Cir. 2005) (“Under 8 U.S.C. § 1158(b)(3)(A), a ‘child’ accompanying, or
following to join, a parent who is granted asylum may be granted derivative asylum by virtue of his or her parent’s
status as a refugee.”). Mario, on the other hand, filed a separate asylum application “based on incidents that happened
to his mother” and “fear[ed] persecution on account of his relationship to his mother.” Mario and his mother’s cases
were consolidated, so for ease of reference, the court will refer only to Maria Gallegos-Alvarez’s petition.
Case No. 18-3106, Gallegos-Alvarez v. Sessions
shown that she had a well-founded fear of persecution based on the fact that she was an honest
former law enforcement agent who would not return to work. Because the BIA’s decision was
supported by substantial evidence, we deny Gallegos’s petition for review.
I. BACKGROUND
A. Factual Background
Gallegos was born in Mexico in 1977. Between 2005 and 2012, Gallegos and her two sons
lived in the United States without lawful status, but returned to their hometown in Jalisco, Mexico
in 2012. After returning to Jalisco, Gallegos joined the local police force in January 2013.
According to Gallegos, she observed wide-spread corruption during her time as a police officer.
On one occasion, Gallegos was involved in the arrest of an individual who “was in possession of
a firearm of high caliber.” Gallegos learned that the individual was a man who worked for “Fidel,”
the leader of a narco-trafficking gang known as La Plaza. Shortly after the man’s arrest, Fidel
spoke with the head of the police force, Edward Navarro, who released the man to Fidel in
exchange for 3500 pesos.
On another occasion, while on-duty and providing security at a dance ranch, Gallegos’s
partner, Officer Refugio, introduced her to Fidel. Gallegos testified that during the course of this
conversation, Fidel and Officer Refugio plotted to have another officer, David Prieto, assassinated
for his refusal to work with the gang. During the conversation, Gallegos was not threatened at any
time. Gallegos resigned from the police force effective October 2013, “due to stress.”
In January 2014, Officer Florentino contacted Gallegos about returning to the police force.
Gallegos believed Officer Florentino worked for Fidel because people “always said so.” In her
declaration, Gallegos stated that “she knew the real reason why they wanted me to come back was
because they wanted me as a [sic] informant; inform them about everything that was happening in
-2-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
the cabin, reports of soldiers, and calls.” Officer Florentino allegedly reminded Gallegos that she
“knew how the people from ‘la plaza’ were, that they were good when people cooperated, and that
it was better for me to return to the police and that my family was going to be fine.” During her
removal proceedings, however, Gallegos testified that the police department requested her return
because they were “unable to hire another female coworker.” Plus, Gallegos already “knew
everything they had to do there” and she left “with a good image.” Gallegos agreed to return to
work, but several days later, fled to the United States.
During her removal proceedings, Gallegos testified that she left Mexico because she feared
La Plaza would locate her and harm either her or her children. When asked why she could not
have stayed in Mexico, she responded, “[b]ecause I had agreed that I was going to come back and
work with them, and then it will be like I’m laughing at them.” Since entering the United States,
however, Gallegos and her family have received no threats, nor have family members still living
in Mexico been threatened or harmed in any way. To Gallegos’s knowledge, none of her former
colleagues on the police force have been harmed or threatened, including Officer Prieto.
During Gallegos’s proceedings, Dr. Robert Kirkland, director of graduate education at
Colorado State University, testified as an expert. Dr. Kirkland testified that La Plaza was a local
affiliate of the Jalisco New Generation cartel, which he described as “the most powerful cartel in
Jalisco.” Based on a one-hour interview with Gallegos and a review of her declaration, Dr.
Kirkland opined that Gallegos would be in danger upon return to Mexico due to her defiance of
the cartel. But Dr. Kirkland also testified that because Gallegos was not harmed by La Plaza in
the twelve months after she joined the police force, “she may perhaps be less of a person of interest
because they didn’t harm her immediately.”
-3-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
B. Immigration Court Decision
On April 11, 2017, an immigration judge (“IJ”) denied Gallegos’s application for asylum,
withholding of removal, and protection under the CAT. (IJ Dec., A.R. 85–110.) The IJ found that
Gallegos “lack[ed] credibility and her testimony alone was unpersuasive as it lacked specificity or
detail in the key elements of her claim.” (Id. at 104.) The IJ did find Dr. Kirkland to be credible,
but noted that he “provided little in the way of information about the cartel’s history of targeting
officers or any policy aimed at taking out honest police officers or those that did not cooperate
during their employment or after they had quit the force.” (Id.) Ultimately, the IJ found that
Gallegos failed to demonstrate past persecution, failed to establish that she would be harmed
because of her status as an honest police officer, and failed to establish that she could not safely
relocate. (Id. at 105–08.)
C. BIA Decision
The BIA, in affirming the IJ’s decision, assumed that Gallegos presented credible
testimony. (BIA Dec., A.R. 4.) The BIA held, however, that Gallegos had not shown she had a
well-founded fear of future persecution2 on account of a statutorily protected basis. (Id.)
Specifically, the BIA found that she had not presented sufficient evidence to show that anyone
would attempt to harm her because she was an honest police officer who would not return to work.
(Id.) In support, the BIA noted that Gallegos was asked to return to work for a legitimate reason—
the police force needed more female officers. (Id. at 4–5.) Moreover, she never provided, nor was
she ever asked to provide, information to La Plaza; she, nor anyone on the police force, had ever
been threatened or harmed by anyone in La Plaza; and she had not received any threats during her
time in the United States. (Id.) Thus, the BIA concluded that Gallegos had not demonstrated a
2
Gallegos did not challenge the IJ’s conclusion that she had not sufficiently demonstrated past persecution in Mexico.
(BIA Dec., A.R. 4 n. 3.)
-4-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
well-founded fear of persecution based on her membership in the social group of “honest former
police officers.” (Id. at 5.)
The BIA also held that Gallegos failed to show that she would be unable to relocate safely
within Mexico. (Id.) Her family members in Mexico had not been harmed or threatened; she did
not claim that La Plaza had sought her out prior to leaving Mexico; and there was no evidence that
La Plaza was looking for her since her entry into the United States. (Id.) And although Dr.
Kirkland testified that cartel members search for police officers that do not assist them, the BIA
noted that he “did not present evidence regarding whether La Plaza is specifically interested in
[Gallegos] and would search for her throughout Mexico.” (Id.) Accordingly, the BIA found that
relocation would not be unreasonable and upheld the IJ’s denial of Gallegos’s asylum application.
(Id.)
Because Gallegos did not satisfy the lower statutory burden of proof required for asylum,
the BIA held that she also did not satisfy the clear probability standard of eligibility required for
withholding of removal. (Id.) Additionally, with respect to the CAT claim, the BIA found that
Gallegos failed to demonstrate that it is more likely than not that she would be tortured in Mexico
by or with the acquiescence of a public official or other person acting in an official capacity. (Id.
(citing 8 C.F.R. §§ 1208.16(c) and 1208.18(a).))
II. ANALYSIS
A. Standard of Review
“Because the BIA did not summarily affirm or adopt the IJ’s reasoning and provided an
explanation for its decision, we review the BIA’s decision as the final agency determination.”
Young Hee Kwak v. Holder, 607 F.3d 1140, 1143 (6th Cir. 2010) (quoting Ilic-Lee v. Mukasey,
507 F.3d 1044, 1047 (6th Cir. 2007)). We review the BIA’s factual findings under a substantial
-5-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
evidence standard, upholding such findings so long as they are supported by “reasonable,
substantial, and probative evidence on the record considered as a whole.” Zhao v. Holder, 569
F.3d 238, 247 (6th Cir. 2009) (citations omitted). “Under this deferential standard, the court may
not reverse the Board’s determination simply because we would have decided the matter
differently.” Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008) (citation omitted).
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).
B. Asylum Claim
“An applicant for asylum bears the burden of establishing that [she] is a ‘refugee’ as
defined by the INA.” Kukalo v. Holder, 744 F.3d 395, 400 (6th Cir. 2011) (citing 8 U.S.C.
§ 1158(b)(1)(B); Koliada v. I.N.S., 259 F.3d 482, 486–87 (6th Cir. 2001)). An applicant may
establish her status as a refugee by showing that she is “unable or unwilling to return to her country
‘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.’” Allabani v. Gonzales,
402 F.3d 668, 674 (6th Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). “To prove one’s refugee
status, one must present specific facts demonstrating suffering of past persecution or a well-
founded fear of future persecution motivated by one of these five statutorily protected grounds.”
Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). In establishing a well-founded fear
of persecution, “an applicant cannot rely on speculative conclusions or mere assertions of fear of
possible persecution[.]” Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007) (internal
quotation marks and citation omitted); see also Kaba v. Mukasey, 546 F.3d 741, 748 (6th Cir.
2008) (“‘[P]ersecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more than a few
isolated incidents of verbal harassment or intimidation, unaccompanied by any physical
-6-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
punishment, infliction of harm, or significant deprivation of liberty.”). An alien’s fear of
persecution must be both subjectively genuine and objectively reasonable. Id.
The ambiguous threat from Officer Florentino, with nothing more, does not support
Gallegos’s fear of future persecution. We assume, as the BIA did, that Gallegos presented credible
testimony regarding her conversation with Officer Florentino. And we assume that her
conversation with Officer Florentino created genuine fear. But aside from that interaction,
Gallegos never had another encounter, let alone a threatening one, with a member of La Plaza or
a coworker assisting the gang. (Hr’g Tr., A.R. 156.) Indeed, Gallegos experienced no physical
harm during her time as a police officer or during the time following her resignation from the
police force. (Id. at 165.) Neither Gallegos, nor her family still living in Mexico, have ever
received any threats from La Plaza. (Id. at 162, 170, 180.) And she cannot point to a single police
officer that has been harmed by La Plaza. (Id. at 163, 166.) Thus, Gallegos fails to show how her
membership as an honest police officer would make her susceptible to conduct that arises to the
level of persecution. See Allabani, 402 F.3d at 674.
Finally, Gallegos’s alleged fear of future persecution “is undermined because she has not
demonstrated that the cause of her fear is countrywide.” Moran-Quinteros v. Holder, 352 F. App’x
974, 979 (6th Cir. 2009) (citing 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does not have a well-
founded fear of persecution if the applicant could avoid persecution by relocating to another part
of the applicant’s country....”)). Again, the record indicates that Gallegos’s extended family
continues to live safely in Mexico. (Hr’g Tr., A.R. 162, 180, 185.) Although Gallegos testified
that she was afraid to relocate because of La Plaza’s connections, she offered no evidence that La
Plaza is currently looking, or will look, for her if she returns. (See id. at 164.) Similarly, Gallegos’s
-7-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
son Mario was unable to provide an answer at the removal proceedings as to why he believed La
Plaza would look for them in a different area of Mexico. (See id. at 182.)
Because there is no evidence in the record that any of Gallegos’s family members have
received threats from La Plaza, or any evidence that La Plaza is looking for her at this time, it is
reasonable to expect that Gallegos can safely relocate. See Pascual v. Mukasey, 514 F.3d 483, 489
(6th Cir. 2007). We therefore affirm the decision of the BIA to reject Gallegos’s application for
asylum because the record does not compel a finding of a well-founded fear of future persecution
upon return to Mexico.
C. Withholding of Removal
Gallegos also seeks review of the BIA’s denial of withholding of removal. “To obtain such
relief, a petitioner must show by a ‘clear probability’ that her life or freedom would be threatened
on account of her race, religion, nationality, membership in a particular social group, or political
opinion.” Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004) (citation omitted). Because
Gallegos fails to meet the lesser standard for asylum, she necessarily fails to meet the “more
stringent requirements” for withholding of removal. See id.; Kaba, 546 F.3d at 751 (“[I]t follows
from [petitioner’s] failure to establish eligibility for asylum that he also cannot satisfy the more
onerous burden for withholding of removal.”). Consequently, we deny Gallegos’s petition for
review regarding her withholding of removal application.
D. Relief under the CAT
Gallegos similarly fails to meet her heavy burden of proof under the CAT. To obtain relief
under the CAT, a petitioner “must prove ‘that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’” Kukalo, 744 F.3d at 402 (quoting Pilica
v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004)). “Torture is defined as ‘any act by which severe
-8-
Case No. 18-3106, Gallegos-Alvarez v. Sessions
pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.’” Bonilla-Morales v. Holder, 607
F.3d 1132, 1139 (6th Cir. 2010) (quoting 8 C.F.R. § 1208.18(a)(1)). But unlike asylum and
withholding claims, “[n]o protected-ground nexus is required” to qualify for protection under the
CAT. Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010). Accordingly, a petitioner’s inability
to establish an asylum claim does not necessarily preclude relief under the CAT, but “it is not easy
to overcome such a barrier.” Kukalo, 744 F.3d at 402.
The record evidence does not compel a conclusion contrary to the BIA’s holding that
Gallegos failed to demonstrate “that it is more likely than not that she would be tortured in Mexico
by or with the acquiescence of a public official or other person acting in an official capacity.”
(BIA Dec., A.R. 5.) As previously mentioned, Gallegos and her family have never been physically
harmed, let alone tortured, and have received no threats from La Plaza indicating that they may be
harmed upon their return. (See Hr’g Tr., A.R. 162, 165, 170, 180.) Thus, the record supports the
BIA’s conclusion that the petitioners failed to meet the requirements to qualify for protection under
the CAT.
III. Conclusion
For the foregoing reasons, we affirm the BIA’s decision and deny Gallegos’s petition for
review.
-9-