Diana Cristina Galicia v. Merrick B. Garland

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0219n.06
No. 22-3650
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 09, 2023
)
DEBORAH S. HUNT, Clerk
DIANA CRISTINA GALICIA; FRANK )
EDUARDO GARCIA-GALICIA, )
) ON PETITION FOR REVIEW
Petitioners,
) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
v.
) APPEALS
)
MERRICK B. GARLAND, Attorney General,
) OPINION
Respondent. )
Before: BOGGS, LARSEN, and NALBANDIAN, Circuit Judges.
LARSEN, Circuit Judge. Diana Cristina Galicia and her minor son entered the United
States unlawfully. After the Department of Homeland Security began removal proceedings, they
conceded removability but applied for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). The immigration judge (IJ) and the Board of Immigration
(BIA) denied relief. For the reasons stated below, we DENY the petition for review.
I.
Diana Cristina Galicia and her minor son Frank Eduardo Garcia-Galicia, natives and
citizens of Guatemala, entered the United States without inspection in April 2014. The Department
of Homeland Security initiated removal proceedings against them pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i).1 Galicia, through counsel, admitted the factual allegations and conceded
1
Galicia’s son was a derivative beneficiary of her asylum application. We refer to the lead
petitioner, Galicia, throughout this opinion.
No. 22-3650, Galicia v. Garland
removability. She applied for asylum, withholding of removal, and protection under the CAT.
She claimed membership in three particular social groups: (1) “[f]amily members of gang
targets;” (2) “kinship to her brother-in-law;” and (3) “[f]amily members of individuals that have
killed a gang member.”
The IJ held a hearing on her applications for relief. Galicia testified that she fled Guatemala
because a man named Marlon and his gang threated to kill her. The threats, she said, began after
a Christmas party in 2013. There, Galicia’s nephew, Freddy Fernando Galicia, attempted to thwart
an assault by throwing a bottle at the assailant. But he missed and instead struck a member of
Marlon’s gang. Gang members beat Freddy and chased him to Galicia’s house. Galicia let Freddy
inside. The gang threw rocks and sticks at the home, breaking windows and threatening to burn
the house down if Galicia did not turn Freddy over. Eventually, Galicia’s brother-in-law, Rocael
Pelaez, came to her assistance. But before the group left, they threatened to return and kill Galicia
because she had helped Freddy.
Galicia testified that a day or so later someone threw a rock at her window with a note
threatening to rape her son because she had harbored Freddy. She said she received the same threat
via text message. A few days later, another rock came through her window with a note threatening
to kill her. Galicia believed Marlon was behind these threats.
Galicia said she called the police, but they didn’t respond. She explained that she didn’t
believe the police would help her because her town was “pretty abandoned” and “whatever could
happen there, and [the police] would never—they never arrive.” Galicia stayed with neighbors or
family for the next three weeks.
Galicia testified that she later went to stay with her ex-husband’s sister in a town about
three hours from her village. While there, Galicia learned that Marlon continued to threaten her
-2-
No. 22-3650, Galicia v. Garland
family and had killed two of her mother’s dogs. That scared Galicia’s host, who believed Galicia’s
presence posed a threat to her own family, so Galicia decided to come to the United States with
her son.
While in the United States, Galicia heard that Marlon was extorting others in town. Shortly
thereafter, with assistance from Galicia’s brother-in-law, Marlon was arrested. But three days
later, Marlon was released from jail, and began threatening Rocael. Rocael eventually killed
Marlon. He was not prosecuted, and he moved to Mexico.
Galicia testified that Marlon was solely responsible for the threats to her and her son. She
also testified that one of her sisters continues to live in Galicia’s hometown and that no one had
ever directly threatened her sister. Galicia’s mother and other relatives moved to a village about
four hours away, where they have not been threatened.
Following Galicia’s testimony, the IJ delivered an oral ruling, denying her application for
asylum, withholding of removal, and CAT relief. The IJ found Galicia “less than credible.” But
even assuming Galicia’s credibility, the IJ held that Galicia had not demonstrated past persecution,
a well-founded fear of future persecution, or that she would likely be harmed if she returned to her
native country, all bases for relief. Galicia timely appealed to the BIA. The BIA upheld the IJ’s
adverse credibility finding and also affirmed the denial of asylum, withholding of removal, and
protection under the CAT on the merits. Galicia timely petitioned this court for review.
II.
Where the BIA reviews the IJ’s decision and issues a separate opinion, we review the BIA’s
decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
To the extent that the BIA adopted the IJ’s reasoning, we also review the IJ’s decision. Id. We
review legal questions de novo, but we review the agency’s factual findings under the substantial-
-3-
No. 22-3650, Galicia v. Garland
evidence standard—that is, its findings “are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Id. (quoting Gishta v. Gonzales, 404 F.3d 972, 978
(6th Cir. 2005)); 8 U.S.C. § 1252(b)(4)(B).
III.
A.
Galicia first mounts a constitutional challenge to the agency proceedings. She claims that
the BIA denied her due process by failing to provide her with a complete copy of the IJ’s decision
and by deciding her case based on that incomplete record. The IJ’s oral decision incorporated by
reference “[a]n addendum stating the standards of law and burdens of proof relevant to the issues
before the court” and promised that the addendum would “be served on the parties, and a copy
w[ould] be placed in the record of proceedings.” But that never happened. The administrative
record does not contain a copy of the addendum, and Galicia seems to say that one was never
served on her.
This was error by the BIA:
[T]he government has an “obligation under 8 U.S.C. § 1229a(b)(4)(C) to prepare a
reasonably accurate and complete record of the removal hearing.” And [the
petitioner] had a due-process right to review that record as he prepared his appeal.
The Board’s failure to provide it therefore created “a defect in the removal
proceeding.”
Alvarez-Hernandez v. Garland, No. 22-3137, 2023 WL 110597, at *1 (6th Cir. Jan. 5, 2023)
(citations omitted). To the extent that the BIA believed that “issuing . . . the legal addendum is not
necessary,” it was mistaken. “The Board should have known better than that.” Id.But to show a violation of the Due Process Clause, Galicia has to show more than a defect
in the proceedings. She has to show prejudice. Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir.
2012). In this context, she must show that the incomplete record kept her from raising, or the BIA
-4-
No. 22-3650, Galicia v. Garland
from considering, an argument that “would have changed the outcome of [her] case.” Alvarez-
Hernandez, 2023 WL 110597, at * 2 (quoting Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th
Cir. 2007)). She cannot do that because, as Galicia explained in her brief to the BIA, her lawyer
somehow “happened to have a copy” of the legal addendum while he was preparing Galicia’s
appeal. Galicia’s brief then explained what she believed to be the legal flaws in the addendum,
primarily its reliance upon the since‑vacated decision, Matter of A-B-, 27 I. & N. Dec. 316 (A.G.
2018) (A-B- I).2 Galicia therefore had the benefit of a complete record for her agency appeal. And
to the extent Galicia argues that the incomplete record deprived this court of its ability to evaluate
her claims, Galicia’s remedy was to make an appropriate motion to complete the record before the
agency, or perhaps to move to complete the administrative record before us to include the legal
addendum already in her possession. See Yun Yan Ou v. Holder, 409 F. App’x 482, 483 (2d Cir.
2011) (granting a motion to supplement the record where the agency had considered the materials
to be supplemented in the court of appeals); Open Soc’y Inst. v. USCIS, 573 F. Supp. 3d 294, 306–
10 (D.D.C. 2021). Galicia did not do this. She was not deprived of due process.
B.
The IJ found Galicia “less than credible,” and the BIA affirmed this finding. Nonetheless,
the IJ and BIA reviewed her claims on the merits and determined that even if she were deemed
credible, her claims failed. Because we conclude that substantial evidence supports the agency’s
2
For good measure, we note that Galicia’s argument regarding Matter of A-B- I, is cursory at best.
She does not show how the IJ used Matter of A-B- I. She simply states, “neither the BIA nor this
court can rule out that Matter of A-B- I was the basis for the court’s analysis and conclusions.”
But she does not explain how the outcome would have been different even if the IJ had relied on
that case. That is insufficient to preserve the claim. See A.K. ex rel. v. Durham Sch. Servs., L.P.,
969 F.3d 625, 633 n.7 (6th Cir. 2020) (“[I]t is a settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
[forfeited].” (alterations in original) (quoting United States v. Johnson, 440 F.3d 832, 846 (6th Cir.
2006))).
-5-
No. 22-3650, Galicia v. Garland
merits determinations, we need not consider the credibility finding. See Ljuljdjurovic v. Gonzales,
132 F. App’x 607, 613 (6th Cir. 2005).
Claims for asylum and withholding of removal have similar requirements. See
Hernandez‑Hernandez v. Garland, 15 F.4th 685, 688 (6th Cir. 2021). An asylum applicant must
show that she qualifies as a “refugee”—a person “unable or unwilling to return to her home country
because of past persecution or a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” Juan Antonio
v. Barr, 959 F.3d 778, 789 (6th Cir. 2020) (internal quotation marks and citation omitted); see 8
U.S.C. § 1101(a)(42). An applicant for withholding of removal must similarly demonstrate 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.’” Hernandez-
Hernandez, 15 F.4th at 688 (quoting 8 U.S.C. § 1231(b)(3)(A)).
The immigration laws do not define “persecution,” but the BIA has defined it as “the
infliction of harm or suffering by the government, or persons the government is unwilling or unable
to control, to overcome a characteristic of the victim.” Pilica v. Ashcroft, 388 F.3d 941, 950 (6th
Cir. 2004) (citing In re Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. 1996)). An applicant who shows
past persecution is entitled to a rebuttable presumption of a well‑founded fear of future persecution.
8 C.F.R. § 208.13(b)(1). Otherwise, an applicant may establish a well‑founded fear of future
persecution by showing that she has “a genuine fear and that a reasonable person in her
circumstances would fear persecution on account of a statutorily‑protected ground if she returned
to her native country.” Kante v. Holder, 634 F.3d 321, 325 (6th Cir. 2011).
The BIA concluded that the threats Galicia received did not amount to past persecution.
Substantial evidence supports this finding. “Verbal harassment or intimidation, unaccompanied
-6-
No. 22-3650, Galicia v. Garland
by any physical punishment, infliction of harm, or significant deprivation of liberty” rarely
amounts to persecution. Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998). Threats alone
constitute persecution only in exceptional cases where threats are of the “most immediate and
menacing nature.” Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (citation omitted);
see also Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (explaining that threats alone constitute
persecution only when “so menacing as to cause significant actual suffering or harm” (internal
quotation marks and citation omitted)).
Galicia and her son were never physically harmed. They were threatened, to be
sure: verbally, one night in 2013; twice through notes attached to rocks thrown at Galicia’s house;
and once via a text message that Galicia believes came from Marlon. Someone also killed her
mother’s dogs in an attempt to threaten Galicia. As disturbing as these events surely were, they
are not the “[t]ypes of actions that might cross the line from harassment to persecution,” such as
“detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of
property, surveillance, beatings, or torture.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005)
(citation omitted). Thus, substantial evidence supports the agency’s finding that Galicia did not
suffer past persecution.
The BIA also determined that Galicia had no objectively reasonable fear of future
persecution if she were returned to Guatemala. Substantial evidence supports that finding as well.
First, Marlon is dead. And neither Galicia, nor any of her family members still residing in
Guatemala, have been threatened since his passing. At least one of Galicia’s family members still
resides, undisturbed, in her hometown. Galicia’s mother and sister live, without threats, in a town
four or five hours away. And Galicia herself was not threatened, even when Marlon was alive,
when she stayed with her ex-husband’s sister a few hours outside of her hometown.
-7-
No. 22-3650, Galicia v. Garland
When family members, who are a part of the same social group, have been able to remain
in the country unharmed, it is difficult to show a reasonable fear of future persecution. See
Amezola-Garcia v. Lynch, 846 F.3d 135, 142 (6th Cir. 2016) (citing In re A–E–M, 21 I. & N. Dec.
1157, 1160 (B.I.A. 1998)); see also Kiegemwe v. Holder, 427 F. App’x 473, 480 (6th Cir. 2011)
(noting that “the ability of the [applicant’s] family to continue to live in Tanzania without adverse
action by the government greatly diminishes the likelihood that [s]he will face harm if [s]he should
return”). That is true, even if Galicia would have to relocate within Guatemala to be safe. “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 . . . .” 8 C.F.R. § 1208.13(b)(2)(ii).
Substantial evidence supports the BIA’s determination that Galicia has not shown a well-founded
fear of future persecution.
Galicia counters that the BIA overlooked the country-conditions reports, which show that
gangs kill thousands of Guatemalans each year. As awful as that is, “[g]eneral conditions of
rampant gang violence alone are insufficient to support a claim for asylum.” Umaña-Ramos v.
Holder, 724 F.3d 667, 670 (6th Cir. 2013). And Galicia does not explain how she would face
persecution, especially in light of her testimony that her family in Guatemala has not been
threatened. Marlon is dead, and there have been no threats since his death. The country-conditions
reports do not compel the conclusion that Galicia has a well-founded fear of persecution.
Substantial evidence supports the BIA’s determination that Galicia failed to show past or
future persecution, so her asylum claim fails. And because Galicia failed to meet her burden for
asylum, she necessarily fails to meet the higher burden required for withholding of removal. See
Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009) (“[A]n applicant who fails to establish his
eligibility for asylum necessarily fails to establish his eligibility for withholding of removal.”).
-8-
No. 22-3650, Galicia v. Garland
C.
To claim protection under the CAT, an applicant must show that she “would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). To qualify for CAT
protection, torture must be “inflicted by, or at the instigation of, or with the consent or acquiescence
of, a public official acting in an official capacity or other person acting in an official capacity.” Id.§ 1208.18(a)(1).
The IJ found that Galicia had not shown that the Guatemalan government would consent
or acquiesce to any torture. The BIA affirmed. It noted that “the police responded and detained
the gang member responsible for the threats on the only occasion that her family reported the gang
member to the police.” So the BIA concluded that Galicia’s “personal experiences with the
authorities undermine her contention that the government would consent or acquiesce to her
torture.” Substantial evidence supports the BIA’s decision.
Galicia contends that the BIA mischaracterizes the evidence: “[T]he police were not
‘poised to act’”—their hands were forced by the villagers; and even then, the police released
Marlon three days after his arrest. But whether the police were “poised to act,” as the agency
concluded, or “guilted into acting,” as Galicia claims, they did act. And the fact that Marlon was
released after three days does not compel the conclusion that authorities were desirous of or
willfully blind to any future danger he might have posed. See 8 C.F.R. § 208.18(a)(7) (explaining
that to establish acquiescence, “the public official, prior to the activity constituting torture, [must]
have awareness of such activity and thereafter breach his or her legal responsibility to intervene to
prevent such activity”); Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006) (explaining that
acquiescence includes “willful blindness”). The country-conditions reports do not undermine this
conclusion. Contrary to Galicia’s assertion, the BIA acknowledged these reports, “documenting
-9-
No. 22-3650, Galicia v. Garland
corruption within the Guatemalan government.” But Galicia was required to show a particularized
risk of torture to her. Yousif v. Garland, 53 F.4th 928, 938 n.5 (6th Cir. 2022) (“[E]ach noncitizen
must establish a particularized threat to him or her, and reports, on their own, don’t get them over
the line.”). Galicia has failed to demonstrate a clear probability that the Guatemalan government
would acquiesce in her torture if she were removed, so her claim for CAT protection fails. See
Zaldana Menijar v. Lynch, 812 F.3d 491, 501–02 (6th Cir. 2015).
***
We DENY Galicia’s petition for review.
-10-