Ana Sanchez Sebastian-Sebastian v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0267p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ANA SANCHEZ SEBASTIAN-SEBASTIAN; MAGDALENA
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SEBASTIAN-SEBASTIAN, No. 23-3059
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Petitioners, >
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v. │
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MERRICK B. GARLAND, Attorney General, │
Respondent. │
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On Petition for Review of an Order of the Board of Immigration Appeals.
Nos. A 209 004 119; A 209 004 121.
Decided and Filed: December 8, 2023
Before: MOORE, McKEAGUE, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Ashley Robinson, THE LAW OFFICES OF JAMIE B. NAINI, Memphis,
Tennessee, for Petitioners. Christin M. Whitacre, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner Ana Sanchez Sebastian-Sebastian
petitions for review of the Board of Immigration Appeals’ denial of her application for asylum
and withholding of removal under the Immigration and Nationality Act as well as protection
under the Convention Against Torture. She also challenges the Board’s decision under the Due
Process Clause of the Fifth Amendment. In its denial of asylum and withholding of removal
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 2
under the INA, the Board found that Sebastian-Sebastian failed to demonstrate a nexus between
her particular social groups and the harm she faced. In its denial of CAT protection, the Board
found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be
tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s
conclusions were not supported by substantial evidence on the record as a whole. Because the
Board’s failure to make necessary findings as to the asylum and withholding of removal claims
is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by
substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in
part, VACATE the Board’s denial of her application for asylum and withholding of removal,
and REMAND to the Board for reconsideration consistent with our opinion.
I. BACKGROUND
A. Procedural History
Petitioner Ana Sanchez Sebastian-Sebastian is a native and citizen of Guatemala. A.R. at
346 (Sebastian-Sebastian Asylum App. at 1). Rider Petitioner Magdalena Sebastian-Sebastian,
Ana Sanchez Sebastian-Sebastian’s daughter, is also a native and citizen of Guatemala. A.R. at
347 (Sebastian-Sebastian Asylum App. at 2). Petitioners entered the United States on or about
April 20, 2016, and were not admitted or paroled by an immigration officer. Id. On April 13,
2017, Sebastian-Sebastian1 filed an application for asylum and withholding of removal under the
INA as well as protection under the Convention Against Torture and included Magdalena on her
application for relief as the unmarried child of an asylum applicant. A.R. at 347, 354 (Sebastian-
Sebastian Asylum App. at 2, 9). Magdalena has not filed her own application for relief and seeks
derivative asylum only. A.R. at 230–31 (Hr’g Tr. at 51–52).
The Department of Homeland Security initiated removal proceedings against Sebastian-
Sebastian and Magdalena Sebastian-Sebastian by serving them both with Notices to Appear.
A.R. at 508 (Sebastian-Sebastian Not. to Appear); A.R. at 533 (Magdalena Sebastian-Sebastian
Not. to Appear). On February 16, 2018, Sebastian-Sebastian’s hearing commenced. A.R. at 229
1
Sebastian-Sebastian refers to Ana Sanchez Sebastian-Sebastian. Any discussion of her daughter, Rider
Petitioner Magdalena Sebastian-Sebastian, will refer to her as Magdalena Sebastian-Sebastian or Magdalena.
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 3
(Hr’g Tr.). At the hearing, Immigration Judge Rebecca L. Holt heard testimony from Sebastian-
Sebastian, Magdalena, and Sebastian-Sebastian’s cousin, Elizabeth. Id. In front of Immigration
Judge Holt, Sebastian-Sebastian claimed eligibility for asylum and withholding of removal based
on her membership in four particular social groups: (1) “Guatemalan Chuj Women in domestic
relationships who are unable to leave,” (2) “Guatemalan Chuj Women who are viewed as
property by virtue of their positions within a domestic relationship,” (3) “nuclear family of
[Sebastian-Sebastian’s late husband],” and (4) “Guatemalan Women perceived as . . . witches.”
A.R. at 298–99 (Hr’g Tr. at 119–20).
On February 21, 2018, Immigration Judge Holt denied Sebastian-Sebastian’s application
for asylum, withholding of removal, and CAT protection. A.R. at 149–74 (IJ Dec.). Sebastian-
Sebastian appealed. A.R. at 134 (Not. of Appeal). On January 6, 2023, the Board of
Immigration Appeals (“Board” or “BIA”) dismissed her appeal. A.R. at 3 (BIA Dec. at 1).
Sebastian-Sebastian now appeals the Board’s dismissal of her application for asylum,
withholding of removal, and CAT protection. Pet’r Br. at 2. She also challenges the Board’s
decision under the Due Process Clause of the Fifth Amendment. Id. at 56.
On April 19, 2023, Sebastian-Sebastian filed an Emergency Motion for Stay of Removal
Pending Decision on Appeal in this court. (Pet’r Emergency Mot.). The motion indicated that
Sebastian-Sebastian had been detained by the United States Immigration and Customs
Enforcement and was facing removal. Id. at 2. The United States Attorney General opposed the
stay of removal. (Resp. Opp. to Pet’r Emergency Mot.). On April 28, 2023, a panel of this court
denied Sebastian-Sebastian’s motion to stay removal. Sebastian-Sebastian v. Garland, No. 23-
3059 (6th Cir. Apr. 28, 2023) (order).
B. Factual Background
Ana Sebastian-Sebastian was born on March 25, 1981 in San Sebastian Coatan,
Guatemala. A.R. at 346 (Sebastian-Sebastian Asylum App. at 1). In 1998, at seventeen years
old, Sebastian-Sebastian married Mateo Sebastian Martin and moved into his parents’ house in
San Jose, Guatemala. A.R. at 240–41 (Hr’g Tr. at 61–62). Approximately one year later, in
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 4
1999, their daughter Magdalena Sebastian-Sebastian was born. A.R. at 239, 242 (Hr’g Tr. at 60,
63).
Following their marriage, Sebastian-Sebastian and her husband lived with her husband’s
parents due to cultural customs. The couple was “not to decide where [they were] to go to live,”
but instead “had to go and live with his parents,” because “[t]hat’s the way it is.” A.R. at 241
(Hr’g Tr. at 62).
Shortly into their marriage, Sebastian-Sebastian’s husband began abusing her. He would
hit her “every week, once a week.” A.R. at 243 (Hr’g Tr. at 64). Sebastian-Sebastian’s husband
hit her with his belt or a stick and would sometimes whip her while she was naked. A.R. at 244–
45 (Hr’g Tr. at 65–66). He continued to beat her while she was pregnant with their daughter. Id.
Sebastian-Sebastian would sometimes have cuts or bruises from his beatings. Id. Though she
may have required medical care from the beatings, her husband “didn’t care,” and would tell her
that “if you die, you die, I don’t care.” A.R. at 275 (Hr’g Tr. at 96). Sebastian-Sebastian’s
husband also regularly called her an animal and compared her to a horse. A.R. at 243 (Hr’g Tr.
at 64).
In addition to physically and psychologically abusing her, Sebastian-Sebastian’s husband
also sexually abused her. A.R. at 246–47 (Hr’g Tr. at 67–68). Beginning in 2007, Sebastian-
Sebastian’s husband raped her approximately five times. Id. Though Sebastian-Sebastian never
contracted any diseases as a result of these rapes, she greatly feared “what type of illness [she]
could get from him,” because “when he goes out in the street and he will find any woman and be
with any woman.” A.R. at 247 (Hr’g Tr. at 68).
Sebastian-Sebastian’s husband also abused their daughter. Starting when Magdelana was
six years old, “he would take out his belt and he would start to hit her with the belt.” A.R. at
248–49 (Hr’g Tr. at 69–70). On several occasions, Magdalena’s nose would bleed after he hit
her in the face with his belt. Id. He would also “call her names” and tell Magdalena that she was
“not worth anything” and she was “the same as [her] mother . . . like an animal.” A.R. at 248
(Hr’g Tr. at 69).
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 5
Sebastian-Sebastian’s in-laws were present and took part in both her and her daughter’s
abuse. A.R. at 249 (Hr’g Tr. at 70). Sebastian-Sebastian’s husband “usually” hit her because
“his mother . . . would tell him [to].” A.R. at 245–46 (Hr’g Tr. at 66–67). Though he
“sometimes” hit her because he wanted to, it was most often at his mother’s urging. Id. In
urging him to hit her, Sebastian-Sebastian’s mother-in-law would say that Sebastian-Sebastian
should leave and “go back” to her own village. A.R. at 246 (Hr’g Tr. at 67).
Despite this abuse, cultural expectations meant that Sebastian-Sebastian could not leave
her domestic relationship; she “had to stay there and just . . . keep . . . taking the beatings.” Id.
This was typical in Sebastian-Sebastian’s culture; she explained that many women are “treated
that way” but nonetheless remain with their husband’s families. A.R. at 262 (Hr’g Tr. at 83). In
2007, the same year that Sebastian-Sebastian’s husband began raping her, Sebastian-Sebastian’s
in-laws began accusing her of being a witch. A.R. at 273–74 (Hr’g Tr. at 94–95).
On December 12, 2010, Sebastian-Sebastian’s husband died. A.R. at 357 (Sebastian-
Sebastian Asylum App. at 11). Following his death, because cultural customs allegedly required
it, Sebastian-Sebastian and her daughter continued living with her in-laws.2 Id.; see also A.R. at
303 (Hr’g Tr. at 124) (Test. of Elizabeth Sebastian-Sebastian) (“[O]ur culture is that if your
husband dies that you have to stay and live there.”). Her in-laws threatened to hit her and limited
her access to drinking water. A.R. at 252 (Hr’g Tr. at 73); see also A.R. at 287 (Hr’g Tr. at 108)
(Test. of Magdalena) (“[T]here’s running water nearby where we get water but the rest of the
people would get mad that we go get water there because they said that we didn’t belong there
and that we didn’t have the right to . . . get water from there.”); A.R. at 357 (Sebastian-Sebastian
Asylum App. at 11) (“[My mother-in-law] told me that Magdalena and I could no longer use the
purified water pump, because it was her and her sons’ water.”). Sebastian-Sebastian’s in-laws
did not physically beat her following her husband’s death, but “sometimes they wanted to,” and
Sebastian-Sebastian would have to “hide from them.” A.R. at 273 (Hr’g Tr. at 94).
At one point, Sebastian-Sebastian’s mother-in-law took Magdalena and “threw
[Sebastian-Sebastian] outside of her house.” A.R. at 254–55 (Hr’g Tr. at 75–76). Sebastian-
2
Sebastian-Sebastian’s father-in-law died in 2013. A.R. at 241 (Hr’g Tr. at 62). Following his death, they
continued living with Sebastian-Sebastian’s mother-in-law.
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Sebastian lived on the street for one week without access to her daughter. Id. After the week,
Sebastian-Sebastian returned to her mother-in-law’s home and begged her to let her come home.
Id.
In approximately 2015, when Magdalena was fifteen or sixteen years old, Jaime,
Sebastian-Sebastian’s brother-in-law, publicly accused Sebastian-Sebastian, as well as
Magdalena, of being a witch. A.R. at 257, 260 (Hr’g Tr. at 78, 81). Jaime and Sebastian-
Sebastian’s mother-in-law informed the town “authorities” of Sebastian-Sebastian’s
“witchcraft,” and the town authorities held a meeting to deal with the accusations. A.R. at 257–
60 (Hr’g Tr. at 78–81). At the town meeting, townspeople gathered with “rocks or sticks.” A.R.
at 259 (Hr’g Tr. at 80). The townspeople “put [Sebastian-Sebastian] . . . on top of a table so that
all people would look at [her], would see [her],” and could determine if she was, in fact, a witch.
Id. If it were determined that Sebastian-Sebastian and Magdalena were witches, the townspeople
“would have killed [Sebastian-Sebastian],” and killed Magdalena with her. A.R. at 260 (Hr’g Tr.
at 81). Just three years prior, Sebastian-Sebastian had witnessed a similar witch-trial in which
the townspeople found that “a woman that lived nearby” was a witch, and “they burned her.”
A.R. at 260–61 (Hr’g Tr. at 81–82).
At the town meeting, the townspeople determined that Sebastian-Sebastian was not a
witch and let both her and Magdalena go. A.R. at 259 (Hr’g Tr. at 80). Sebastian-Sebastian then
tried to return to her mother-in-law’s house, but her mother-in-law prohibited her from entering,
told her to leave, and told her that “she would kill [her] if [she] returned there.” A.R. at 261
(Hr’g Tr. at 82). Because they did not “have anywhere to go,” Sebastian-Sebastian and
Magdalena “were left out in the street.” A.R. at 262 (Hr’g Tr. at 83). They lived on the streets
for approximately two weeks before Sebastian-Sebastian called her cousin, Elizabeth, who lived
in the United States, for help. A.R. at 264 (Hr’g Tr. at 85). Sebastian-Sebastian has family in
Guatemala: her mother and brothers live in her hometown of Tzununcab. A.R. at 270–71 (Hr’g
Tr. at 91–92). She could not return to them because her brothers are “drunks,” and “don’t really
have a good life,” and her mother was “living with an uncle” and does not have her own home.
A.R. at 238, 264 (Hr’g Tr. at 59, 85). Moreover, Sebastian-Sebastian explained that cultural
customs dictate that she was required to live with her in-laws even after her husband died; “when
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 7
[she] got married it’s that [she] got married forever and . . . [she has] to stay there.” A.R. at 276
(Hr’g Tr. at 97). On April 13, 2016, Sebastian-Sebastian left Guatemala for the United States.
A.R. at 346 (Sebastian-Sebastian Asylum App. at 1).
While living with her in-laws, Sebastian-Sebastian never reported abuse—either at the
hand of her husband or her in-laws—to the police. A.R. at 251 (Hr’g Tr. at 72). She testified
that “there’s no law that will help,” and, furthermore, either her husband or her in-laws told her
that they were “the law here and [she’s] not going to go anywhere.” Id. Jaime, Sebastian-
Sebastian’s brother-in-law, “works in the municipality there,” and her in-laws have said that if
she goes to the police, “they have money [and] they will bribe the police” not to help her. A.R.
at 268 (Hr’g Tr. at 89).
Sebastian-Sebastian’s mother-in-law found her United States phone number and has
called her once since she arrived in the United States. A.R. at 265 (Hr’g Tr. at 86). On that call,
her mother-in-law told Sebastian-Sebastian that “if [she] ever go[es] back there that she would
kill [her].” Id. A pastor’s wife from her mother-in-law’s town also told Sebastian-Sebastian that
her mother-in-law has been saying that if Sebastian-Sebastian ever returns, she will kill her.
A.R. at 266 (Hr’g Tr. at 87).
II. ANALYSIS
A. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252 to review the Board of Immigration Appeals’
final determination ordering removal. Umaña-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir.
2013). When the Board “reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We
review the immigration judge’s decision only “[t]o the extent the BIA adopted the immigration
judge’s reasoning.” Id. We review factual findings under the substantial-evidence standard and
review questions of law de novo. Umaña-Ramos, 724 F.3d at 670. Under the substantial-
evidence standard, “we will not reverse a factual determination . . . unless we find ‘that the
evidence not only supports a contrary conclusion, but compels it.’” Ceraj v. Mukasey, 511 F.3d
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 8
583, 588 (6th Cir. 2007) (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)); 8
U.S.C. § 1252(b)(4)(B). A nexus determination is a finding of fact and is thus reviewed under
the substantial-evidence standard. Turcios-Flores v. Garland, 67 F.4th 347, 357 (6th Cir. 2023).
We uphold the Board’s determination if “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Because the IJ found the parties credible, “we accept their factual statements as true.”
Mandebvu v. Holder, 755 F.3d 417, 424 (6th Cir. 2014). Claims of due-process violations in
removal proceedings are reviewed de novo. Bi Qing Zheng v. Lynch, 819 F.3d 287, 296 (6th Cir.
2016).
B. Asylum
The Immigration and Nationality Act authorizes the Attorney General, in his discretion,
“to grant asylum to applicants who meet the definition of a ‘refugee.’” Umaña-Ramos, 724 F.3d
at 670 (citing 8 U.S.C. § 1158(b)). A “refugee” is “a person who is 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.’” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010) (quoting 8 U.S.C.
§ 1101(a)(42)).
Persecution is “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.” Al-
Ghorbani v. Holder, 585 F.3d 980, 997 (6th Cir. 2009) (quoting Khalili, 557 F.3d at 436)).
Motive is a critical element of persecution. Id. Accordingly, petitioners “must provide some
evidence of [motive], direct or circumstantial.” Elias-Zacarias, 502 U.S. at 483.
To establish persecution under the statute, an asylum applicant must demonstrate that a
statutorily protected ground is “at least one central reason” for their persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). One statutorily protected ground is membership in a particular social group.
We have defined a “particular social group” as “a group of individuals who share a common,
immutable characteristic that is one that members of the group either cannot change, or should
not be required to change because it is fundamental to their individual identities or consciences.”
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 9
Marikasi v. Lynch, 840 F.3d 281, 290 (6th Cir. 2016). A particular social group is “both
particular and socially visible.” Bonilla-Morales, 607 F.3d at 1137. We “may not presume that
persecution is on account of one of the statutory grounds,” such as membership in a particular
social group. Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008). Instead, to determine if a
central reason for the applicant’s persecution is a protected ground, we “examin[e] the nature of
the conduct on which an application for asylum is based, [and] we . . . look[] to the overall
context of the applicant’s situation.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (per
curiam).
Asylum is not available if the applicant “fears retribution solely over personal matters.”
Zoarab, 524 F.3d at 781. If there is a nexus between persecution and membership in a particular
social group, however, “the simultaneous existence of a personal dispute does not eliminate that
nexus.” Bi Xia Qu v. Holder, 618 F.3d 602, 608 (6th Cir. 2010); see also Al-Ghorbani, 585 F.3d
at 997 (“[T]he conclusion that a cause of persecution is economic does not necessarily imply that
there cannot exist other causes of the persecution.” (quoting Osorio v. INS, 18 F.3d 1017, 1028
(2d Cir. 1994))). If “an asylum applicant demonstrates that she was persecuted on the basis of
more than one factor, she is eligible for asylum so long as” a statutorily protected ground is “at
least one central reason” for the persecution. Marku, 380 F.3d at 988 n.10; 8 U.S.C.
§ 1158(b)(1)(B)(i). Stated succinctly, an asylum applicant who was persecuted based on mixed
motives may be eligible for asylum. If “at least one central reason” for her persecution is a
statutorily protected ground, additional motives do not undermine her claim. 8 U.S.C.
§ 1158(b)(1)(B)(i).
Sebastian-Sebastian asserts that her past persecution and feared future persecution are on
account of her membership in four proposed particular social groups: (1) “Guatemalan Chuj
[w]omen in domestic relationships who are unable to leave,” (2) “Guatemalan Chuj [w]omen
who are viewed as property by virtue of their positions within a domestic relationship,” (3) the
“nuclear family of [Sebastian-Sebastian’s late husband],” and (4) “Guatemalan [w]omen
perceived as . . . witches.” A.R. at 298–99 (Hr’g Tr. at 119–20).
The BIA, “[w]ithout reaching whether [Sebastian-Sebastian’s] proposed particular social
groups are cognizable under the INA,” held that she did “not demonstrate[ that] the harm she
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 10
suffered at the hands of her husband or her in-laws was on account of her membership in the
proposed social groups.” A.R. at 4 (BIA Dec. at 2). Instead, the BIA, affirming the IJ’s
decision, held that Sebastian-Sebastian “was harmed by her husband and in-laws because of a
personal vendetta against [Sebastian-Sebastian] by her mother-in-law[,] rather than a protected
ground.” A.R. at 5 (BIA Dec. at 3).
The BIA addressed Sebastian-Sebastian’s first two proposed particular social groups
together. The BIA acknowledged Sebastian-Sebastian’s “testimony that her husband stated he
‘could do anything he wanted to her’ and compared her to an animal, as well as generally high
levels of violence in Guatemala against indigenous women.” A.R. at 5 (BIA Dec. at 3). But the
Board held that any evidence of prejudice was “unpersuasive” given Sebastian-Sebastian’s
“repeated testimony that her husband harmed her because of his mother’s personal animosity.”
Id. The Board similarly credited Sebastian-Sebastian’s cousin Elizabeth’s testimony that
Sebastian-Sebastian’s mother-in-law “held a personal grudge” against her. A.R. at 5 (BIA Dec.
at 3). Given this testimony, the Board held that the immigration judge did not clearly err when it
found that Sebastian was harmed based on personal animus and did “not establish[] the requisite
nexus between her harm and a protected ground.” Id.The BIA thus concluded that Sebastian-Sebastian was ineligible for asylum. If, however,
“at least one central reason” for Sebastian-Sebastian’s persecution is a statutorily protected
ground, additional motives do not undermine her claim. 8 U.S.C. § 1158(b)(1)(B)(i); Marku,
380 F.3d at 988 n.10. The BIA rejected Sebastian-Sebastian’s claim without considering that her
persecutors may have had mixed motives for their persecution. The BIA erroneously stopped
short: It found one motive and prematurely ended its analysis there, ignoring the fact that a
“conclusion that a cause of persecution is [personal] does not necessarily imply that there cannot
exist other causes of persecution.” Osorio, 18 F.3d at 1028; see also Bi Xia Qu, 618 F.3d at 608;
Al-Ghorbani, 585 F.3d at 997.
In Al-Ghorbani v. Holder, Al-Ghorbani, a member of “the lowest class in Yemen,” fell in
love with Najla, a member of “the highest kind of families in Yemen.” Al-Ghorbani, 585 F.3d at
984. After Al-Ghorbani and Najla married without her father’s permission, her father came after
Al-Ghorbani and his family and physically attacked, imprisoned, and tortured members of his
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 11
family. Id. at 985–87. The BIA held that Al-Ghorbani had not demonstrated a nexus between
his claimed persecution and a protected statutory ground—namely his social class and his
“opposition to Yemeni paternalistic rights,” id. at 997–98—because there was “no indication that
this is anything other than a personal vendetta that [Najla’s father] has against his son-in-law for
marrying his daughter without his permission,” and denied asylum and withholding of removal,3
id. at 990–91.
This court, in Al-Ghorbani, granted review of the BIA’s decision and held that “the
record compels a finding that [Al-Ghorbani has] proven the required nexus between [the harm]
and [his] membership in a particular social group.” Id. at 998. We explained that, though Al-
Ghorbani’s persecution may have been partially motivated by a personal vendetta, that was not
the “sole motivation,” and Najla’s father’s “personal motives cannot be unraveled from his
motives based on [Al-Ghorbani’s] social class and . . . opposition to Yemeni paternalistic rights.”
Id. at 997–98. Because the persecutor’s “prejudice and traditional views underlay all of his
actions,” we held that “[o]ne cannot fairly distinguish [his] personal vendetta from his prejudice
and traditional views. The motivations are inextricably intertwined.” Id. at 998.
Despite this precedent, the Board here failed to consider that the mother-in-law’s
personal vendetta and her prejudice were similarly intertwined. This was an error. There is little
evidence in the record indicating that the mother-in-law disliked Sebastian-Sebastian based on
her personality, her qualities as an individual, or any other personal reason. Instead, the parties
provided ample evidence for the Board to conclude that Sebastian-Sebastian’s mother-in-law
harmed her, at least in central part, because Sebastian-Sebastian could not leave, a characteristic
that is a core aspect of two of her proposed social groups—Guatemalan Chuj women in domestic
relationships who are unable to leave and who are viewed as property by virtue of their
relationship. The mother-in-law repeatedly kicked Sebastian-Sebastian out, A.R. at 254–55
(Hr’g Tr. at 75–76); A.R. at 261 (Hr’g Tr. at 82), and told Sebastian-Sebastian to leave and “go
3
In Al-Ghorbani, the Board denied asylum on timeliness grounds and denied withholding of removal based
on this nexus determination. The standard for a nexus determination differs for withholding of removal and asylum.
Guzman-Vazquez v. Barr, 959 F.3d 253, 271–74 (6th Cir. 2020) (explaining that a protected ground must be “one
central reason” for persecution to warrant asylum, whereas a protected ground need be only “a reason” for
persecution to warrant withholding of removal). That said, the Al-Ghorbani court’s nexus discussion touches both
asylum and withholding of removal and thus remains informative for this asylum claim.
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 12
back” to her own village as she encouraged Sebastian-Sebastian’s husband to beat her, A.R. at
246 (Hr’g Tr. at 67). Because cultural expectations dictated that a Guatemalan Chuj woman in
her position—both viewed as property and unable to leave by virtue of her domestic
relationship—must stay with her in-laws and have nowhere else to go, Sebastian-Sebastian
refused to leave her mother-in-law’s home. Id.; A.R. at 262 (Hr’g Tr. at 83); A.R. at 303 (Hr’g
Tr. at 124). This is sufficient evidence for the BIA to conclude that Sebastian-Sebastian’s
membership in these groups “underlay[s] all of [her persecutors’] actions.” Al-Ghorbani,
585 F.3d at 998.
Despite this evidence, the Board apparently never considered whether Sebastian-
Sebastian’s mother-in-law had a personal motivation and a particular-social-group-related
motivation that “[were] inextricably intertwined.” Al-Ghorbani, 585 F.3d at 998. The Board
similarly never considered whether Sebastian-Sebastian’s husband’s motives were “inextricably
intertwined” with her particular social groups, because it attributed her husband’s persecution to
her mother-in-law’s personal animosity towards her. The Board’s failure to consider this
possibility was in error.
The Board also held that Sebastian-Sebastian failed to demonstrate a nexus between her
membership in a proposed social group of Guatemalan women perceived as witches and the
harm she faced. A.R. at 5 (BIA Dec. at 3). Unlike the first two proposed social groups, there is
no record evidence indicating that Sebastian-Sebastian faced persecution on account of her status
as a perceived witch, even as a mixed motive. Sebastian-Sebastian did not present any evidence
of potential mixed motives connected to this proposed social group, and so the Board did not err
in concluding that Sebastian-Sebastian failed to prove a nexus here.
As to Sebastian-Sebastian’s particular social group of family members of her late
husband, the Board held that she did not demonstrate a nexus to harm because she relied “on the
existence of the familial relationship” and nothing else. A.R. at 5 (BIA Dec. at 3). Sebastian-
Sebastian argues that “[t]he record clearly demonstrates that the motivations of [her husband]
and his family in harming Petitioner were driven by her kinship ties to [her husband].” Pet’r Br.
at 44. Sebastian-Sebastian, however, fails to point to any specific evidence in the record or
otherwise demonstrate that her membership in the social group of family members of her
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 13
husband was a central reason, or even a reason, for the persecution she faced. Because the
evidence does not compel a finding that Sebastian-Sebastian’s persecution was on account of her
membership in her family group, we will not disturb the Board’s determination on this question.
The BIA, failing to consider possible mixed motives relating to the first two proposed
social groups, thus failed to fully consider whether Sebastian-Sebastian could prove that her
persecution had a nexus to a protected ground. The BIA also declined to address the other
factors necessary for Sebastian-Sebastian to meet her burden of proof for asylum or withholding
of removal. A.R. at 5 (BIA Dec. at 3) (“As nexus to a protected ground is dispositive to the
respondent’s application for asylum and withholding of removal[,] . . . we need not reach her
remaining arguments pertaining to those applications.”). “When the BIA does not fully consider
an issue, as in the instant case, the Supreme Court has instructed that a reviewing court ‘is not
generally empowered to conduct a de novo inquiry into the matter being reviewed.’” Bi Xia Qu,
618 F.3d at 609 (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006)). Instead, the “proper
course, except in rare circumstances, is to remand to the [BIA] for additional investigation or
explanation.” Id. (quoting Thomas, 547 U.S. at 186) (alteration in original). We, accordingly,
remand to the BIA to address whether Sebastian-Sebastian was persecuted based on her
membership in her first two proposed particular social groups and the remaining asylum
considerations.
C. Withholding of Removal
The Board analyzed Sebastian-Sebastian’s application for asylum and application for
withholding of removal under the INA in concert. See A.R. at 4–5 (BIA Dec. at 2–3). In doing
so, the Board stated that it was “unpersuaded [that] the Immigration Judge clearly erred in
finding [that Sebastian-Sebastian] had not established [that] membership in her proposed social
groups was ‘one central reason’ or ‘a reason’ for her past and feared future harm.” A.R. at 5
(BIA Dec. at 3). We have explained that the nexus showing required for withholding of removal
differs from the nexus showing required for asylum. Guzman-Vazquez, 959 F.3d at 272–74.
Whereas an asylum claim requires that a statutorily protected ground be “at least one central
reason” for alleged persecution, id. at 270 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)), a withholding
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 14
of removal claim requires only that a statutorily protected ground be “a reason” for alleged
persecution, id. at 271 (quoting 8 U.S.C. § 1231(b)(3)(C)).
“[W]ithholding of removal is mandatory if the applicant can establish a clear probability
of future persecution.” Mapouya v. Gonzales, 487 F.3d 396, 413–14 (6th Cir. 2007). “A ‘clear
probability’ has been defined as more than a 50 percent likelihood of persecution.” Id. at 414.
When the BIA analyzes asylum and withholding of removal in concert and “does not ‘examine
the evidence and make specific findings regarding the probability’ of persecution with respect to
the withholding of removal claim, this court does not have sufficient grounds to review the
decision under the substantial evidence standard.” Juan Antonio v. Barr, 959 F.3d 778, 797 (6th
Cir. 2020) (quoting Gilaj, 408 F.3d at 289). Instead, when we “remand[] to the agency to
reconsider the asylum claim, the Board ‘should consider on remand whether petitioners are
entitled to withholding of removal based on all of the evidence [in the] record.’” Id. at 797–98
(quoting Gilaj, 408 F.3d at 289). Accordingly, on remand, the Board should consider Sebastian-
Sebastian’s withholding of removal claim.
D. Humanitarian Asylum
Humanitarian asylum may be granted if the applicant demonstrates (1) “‘compelling
reasons for being unwilling or unable to return to the country arising out of the severity of the
past persecution,’ or (2) . . . a reasonable possibility [that] an applicant . . . ‘may suffer other
serious harm upon removal to that country,’ even in the absence of a well-founded fear of future
persecution.” K.H. v. Barr, 920 F.3d 470, 478–79 (6th Cir. 2019) (quoting Mbodj v. Holder, 394
F. App’x 239, 244 (6th Cir. 2010)). “Humanitarian asylum is a form of ‘extraordinary relief’
that is appropriate only ‘in rare instances’ where the applicant has ‘suffered under atrocious
forms of persecution.’” Id. at 479 (quoting Mbodj, 394 F. App’x at 244–45).
Humanitarian asylum “is ‘not a separate form of relief created by the Immigration and
Nationality Act,’ but rather ‘is a discretionary form of relief that may be granted to certain
asylum seekers.’” Juan Antonio, 959 F.3d at 798 (quoting Ordonez-Quino v. Holder, 760 F.3d
80, 95 (1st Cir. 2014)). Because “humanitarian asylum is one avenue to achieve asylum under
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 15
the broader statutory scheme, rather than a distinct form of relief,” on remand, the Board should
consider Sebastian-Sebastian’s humanitarian asylum claim. Id.E. Convention Against Torture
Sebastian-Sebastian also petitions for review of the denial of her claim for relief under
CAT. To succeed on a claim for CAT relief, “an applicant must ‘establish that it is more likely
than not that he or she would be tortured if removed to the proposed country of removal. The
testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without
corroboration.’” Namo v. Gonzales, 401 F.3d 453, 457 (6th Cir. 2005) (quoting 8 C.F.R.
§ 208.16(c)(2)).
Torture is defined as any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession, punishing him or
her for an act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is
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.
8 C.F.R. § 208.18(a)(1).
To assess the risk of torture, the adjudicator must consider: “(i) evidence of past torture
inflicted on the applicant; (ii) evidence that the applicant could relocate to a part of the country
where he is likely not to be tortured; (iii) evidence of gross, flagrant or mass violations of human
rights within the country to which the applicant will be removed; and, (iv) other relevant
information about the country to which the applicant will be removed.” Namo, 401 F.3d at 457;
see also 8 C.F.R. § 208.16(c)(3) (stating that these factors “shall be considered”). A CAT claim
poses a “separate question of the threat of torture” that is considered “without regard to the
enumerated ground for asylum.” Mapouya, 487 F.3d at 414 (quoting Karomi v. Gonzales, 168 F.
App’x 719, 729 (6th Cir. 2006)). An applicant can therefore succeed on a CAT claim even if
they fail on their asylum or withholding of removal claims under the INA. Id.The Board, affirming the IJ’s finding, held that Sebastian-Sebastian “did not establish
that it is more likely than not [that] she will be tortured by or with the acquiescence (including
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 16
the concept of willful blindness) of a public official on removal to Guatemala.” A.R. at 6 (BIA
Dec. at 4). To make that holding, the Board relied on record evidence indicating that Sebastian-
Sebastian’s “husband and father-in-law are now deceased[,] . . . she has only received one threat
from her mother-in-law since she left the family home, and there is no indication [that] her
mother-in-law has searched for her since she left.” Id. The Board also acknowledged Sebastian-
Sebastian’s “arguments that country condition evidence show[ed] a continued high level of
violence against women,” but held that such evidence did not persuade it that she was “more
likely than not to be tortured upon return to Guatemala.” Id.On appeal, Sebastian-Sebastian argues that the IJ failed to consider “the ineffective role
of law enforcement in Guatemala, . . . [and] the fact that [Sebastian-Sebastian’s] brother-in-law
that had her put on trial for being a witch, works for the government.” Pet’r Br. at 52.
Sebastian-Sebastian also states that, because she “would likely be tortured if she returns to
Guatemala, and the government acquiesces to the kind of torture she suffered, she is eligible for
relief under CAT.” Id. at 53.
Contrary to Sebastian-Sebastian’s argument before this court, which focuses entirely on
the IJ, the BIA did address country conditions, including the role of law enforcement, when it
stated that the “country condition evidence showing a continued high level of violence against
women” does not establish that it “is more likely than not [that Sebastian-Sebastian will be]
tortured upon return to Guatemala.” A.R. at 6 (BIA Dec. at 4). As to her brother-in-law’s role in
the government, Sebastian-Sebastian failed to make this argument on appeal to the BIA. See
A.R. 75–78 (Pet’r BIA Br. at 58–61). When an applicant fails to raise an issue before the BIA,
we will not review the issue on appeal. Gilaj, 408 F.3d at 289; Bi Xia Qu, 618 F.3d at 609.
Finally, we are not compelled to conclude that the BIA erred in holding that Sebastian-
Sebastian “did not establish that it is more likely than not [that] she will be tortured” if removed
to Guatemala. A.R. at 6 (BIA Dec. at 4). To be eligible for CAT relief, “an applicant must
‘establish that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.’” Namo, 401 F.3d at 457 (quoting 8 C.F.R. § 208.16(c)(2)).
Despite her conclusory statements that “she would likely be tortured if she returns to
Guatemala,” Sebastian-Sebastian presents no evidence whatsoever that she is more likely than
No. 23-3059 Sanchez Sebastian-Sebastian v. Garland Page 17
not to be tortured if removed. Pet’r Br. at 53. On this record, there is substantial evidence to
support the Board’s findings on Sebastian-Sebastian’s CAT claim.
F. Due-Process Claim
Sebastian-Sebastian contends that the BIA violated her right to due process when it
“fail[ed] to address several issue[s] that were raised on appeal,” and when the BIA and the IJ
“failed to consider all factors present.” Pet’r Br. at 57–58. “Due process requires that an
[immigrant] be afforded a full and fair hearing.” Mapouya, 487 F.3d at 415–16. “To prevail on
a due process claim, a petitioner must demonstrate actual prejudice, and that the alleged
prejudice materially affected the outcome” of their case. Id.
Sebastian-Sebastian argues that, given the evidence, “it is apparent that [her] life, safety,
and freedom would be in danger, and she would be subjected to torture if she is removed to
Guatemala.” Pet’r Br. at 58. Sebastian-Sebastian continues that, “[a]s such, it is clear that a
defect in the removal proceedings existed due to the failure of the IJ to consider the effect of
Petitioner’s removal and the BIA’s failure to address all issues raised on appeal.” Id. The IJ and
the Board’s disagreement with her view of the evidence, however, is not a violation of due
process. See Gil-Cerqueda v. Rosen, 841 F. App’x 815, 822 (6th Cir. 2021). Sebastian-
Sebastian’s “failure to identify the factors allegedly not taken into account” further means that
she “cannot show that [s]he was prejudiced by the purported defect.” Id. The Board and the IJ
did not violate Sebastian-Sebastian’s right to due process.
III. CONCLUSION
For the foregoing reasons, we GRANT Sebastian-Sebastian’s petition for review in part,
DENY in part, VACATE the Board’s denial of her application for asylum and withholding of
removal, and REMAND to the Board for reconsideration consistent with our opinion.