Edelyn Seleny Nerio Perez v. Merrick B. Garland

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2434
EDELYN SELENY NERIO PEREZ and A.M.G.N., a minor,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A209-439-310 & A209-439-311
____________________
ARGUED AUGUST 1, 2023 — DECIDED OCTOBER 3, 2023
____________________
Before WOOD, HAMILTON, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Edelyn Seleny Nerio Perez (Nerio)
and her minor daughter, citizens of Guatemala, petition for
review of the denial of their applications for asylum and with-
holding of removal. Nerio sought relief on the basis that she
would be persecuted by her partner’s nephew on account of
her Mayan ancestry. Because substantial evidence supports
the immigration judge’s determination that Nerio failed to
2 No. 22-2434
establish that the Guatemalan government is unable or un-
willing to protect her, we deny the petition.
I
In 2016, Nerio and her minor daughter sought admission
to the United States in Hidalgo, Texas, without the required
authorization, and the Department of Homeland Security in-
itiated removal proceedings. Nerio and her daughter con-
ceded removability. Nerio (and derivatively, her daughter)
applied for asylum and withholding of removal based on her
fear that her partner’s nephew, Walter Ariel Garcia Barrera
(Walter), would harm them if they returned.
At a hearing before an immigration judge, Nerio testified
that she and her partner, Yuny Marlon Garcia y Garcia
(Yuny), have been together for ten years. Around a year after
they met, Nerio became pregnant. Nerio then moved in with
Yuny’s family and gave birth to her daughter. Yuny left Gua-
temala in 2009, but Nerio continued living with, and later
near, Yuny’s family.
Nerio explained that Yuny’s nephew, Walter, discrimi-
nated against her based on her indigenous Mayan heritage,
considering her as his “inferior” and refusing to treat her as a
member of his family. Walter said she was “muddying” the
“bloodline of the Garcia family.” He often referred to her as
“Indian” and “indigenous Indian” and called her “ugly” and
“stupid.” Initially, Walter sought to sabotage Nerio’s relation-
ship with Yuny and his family by making up stories about her
having relationships with other men.
Nerio further testified that around 2015, Walter began try-
ing to physically harm her. Twice that year, he tried to hit her
with his motorcycle. In February 2016, he shot at her with a
No. 22-2434 3
rifle while she was outside her house and called her a “[s]tu-
pid Indian.” After this, Nerio moved in with her parents, a
few miles away. Walter continued to harass Nerio by driving
by her parents’ house very slowly and taunting her. Addition-
ally, Nerio’s daughter once returned from a visit with Yuny’s
mother and told Nerio that Walter had shot at her. Walter and
Nerio then had a confrontation outside his home.
After the confrontation, Walter filed—in Nerio’s words—
a false police report against her. Their attorneys negotiated a
mutual agreement in which they agreed to leave each other
alone. But Walter, on multiple occasions, followed Nerio
when she went to school or into town. Once, Nerio thought
that Walter was going to shoot her because he pulled a gun,
but he drove off because, according to Nerio, there was a po-
lice patrol car behind him.
In September 2016, in the aftermath of these incidents, Ne-
rio sought and obtained a protective order against Walter. Ne-
rio explained that she could have pressed for criminal charges
against Walter, but she chose not to because his family would
say, “[W]e’re family—please stop all of this.”
Three or four days after receiving the protective order, Ne-
rio, still fearful of Walter, left her parents’ house, eventually
arriving in the United States. Word of the protective order in-
furiated Walter, who demanded that Nerio return and with-
draw her underlying report.
In her testimony to the IJ, Nerio asserted that Walter
would try again to kill her if she returned to Guatemala. Wal-
ter’s family told her that he has instigated violence toward
others—he attempted to kill another woman, for instance.
And Nerio said that in the year before the 2019 immigration
4 No. 22-2434
hearing, Walter threatened her (through family) and warned
her not to come back.
Nerio also testified about her fear that the Guatemalan
government could not protect her. She said that “there’s a lot
of corruption” in Guatemala, that Walter told her he had
money and powerful friends, and that law enforcement do
not act “until there’s death,” and even then, “they hardly ever
find the murderers.” Further, she testified about Guatemala’s
history of violence against indigenous communities. Yuny
also testified at the hearing that the Guatemalan authorities
would not be able to protect Nerio because they “sell them-
selves out to whoever pays more.”
The IJ denied Nerio’s applications. The IJ found, first, that
Nerio was credible, that she suffered harm rising to the level
of persecution, and that the harm was on account of Nerio’s
Mayan ancestry. But the IJ concluded that Nerio did not es-
tablish past persecution because she failed to show that the
Guatemalan government was “unable or unwilling” to pro-
tect her. (When the persecutor—like Walter—is a private ac-
tor, the applicant must show that the government is unable or
unwilling to protect her from the persecuting party. See Silais
v. Sessions, 855 F.3d 736, 742 (7th Cir. 2017).) The IJ pointed
out that Nerio had not initially reported Walter to authorities
after he shot at her, that she had reached an amicable settle-
ment with Walter after he reported her to authorities, and that
she obtained a protective order after she reported him to au-
thorities. In a remark that Nerio spotlights in her appeal, the
IJ concluded that Nerio failed to show that the Guatemalan
government “either condones [the persecution] or is helpless
to prevent it.” (quoting Vahora v. Holder, 707 F.3d 904, 908 (7th
Cir. 2013) (alteration in original)). For the same reason, the IJ
No. 22-2434 5
concluded that Nerio did not show a well-founded fear of fu-
ture persecution and did not qualify for withholding of re-
moval.
The Board of Immigration Appeals summarily affirmed
the IJ’s decision.
II
On judicial review, Nerio argues that the IJ erroneously
determined that she had not shown the Guatemalan govern-
ment was unable or unwilling to protect her. Where, as here,
the Board affirms the IJ’s decision without opinion, we review
the IJ’s order. Dai v. Garland, 24 F.4th 628, 634 (7th Cir. 2022).
Our review is deferential; we will uphold the IJ’s findings if
they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (citation
omitted). Because Nerio seeks protection from a private indi-
vidual’s actions, she must show that the Guatemalan govern-
ment is unable or unwilling to control Walter in order to qual-
ify for asylum or withholding of removal. Osorio-Morales v.
Garland, 72 F.4th 738, 742 (7th Cir. 2023); Almutairi v. Holder,
722 F.3d 996, 1002–03 (7th Cir. 2013).
For the first time, Nerio now challenges the standard that
the IJ applied to conclude that the Guatemalan government
was unable or unwilling to protect her. She highlights the
“condones” or “helpless” language that the IJ used to sum up
his opinion and argues that this standard is more stringent
than the “unable or unwilling” standard. See Grace v. Barr,
965 F.3d 883, 898–900 (D.C. Cir. 2020) (criticizing “condoned-
or-completely-helpless standard” in Matter of A-B-I, 27 I. & N.
Dec. 316 (A.G. 2018), as more stringent as well as arbitrary and
capricious).
6 No. 22-2434
But we cannot reach this argument because, as Nerio con-
cedes, she did not raise it in her appeal to the Board.
See 8 U.S.C. § 1252(d)(1); Chavarria-Reyes v. Lynch, 845 F.3d
275, 279 (7th Cir. 2016). To the extent Nerio thinks she should
be excused from having to raise the argument to the Board
(because the Board affirmed the IJ’s decision without opin-
ion), she is mistaken. In cases where the Board affirms a deci-
sion without opinion, we have concluded that a petitioner
waives—on exhaustion grounds—an argument that she did
not raise before the Board. See, e.g., Kithongo v. Garland,
33 F.4th 451, 458 (7th Cir. 2022); see also Cante-Lopez v. Gar-
land, 50 F.4th 255, 258 (1st Cir. 2022) (collecting cases).
Regardless, we see nothing to suggest that the IJ applied
the wrong standard. He referred once to “condone” or “help-
less,” but elsewhere, he repeatedly characterized Nerio’s bur-
den as having to show that Guatemalan authorities were “un-
able or unwilling” to protect her from Walter. True, our opin-
ions at times have recited the language of “condone” or “help-
less.” See, e.g., Vahora, 707 F.3d at 908 (petitioner must show
government “condones” or “is helpless to prevent” persecu-
tion by private actors); Hor v. Gonzales, 421 F.3d 497, 501
(7th Cir. 2005) (same); Chatta v. Mukasey, 523 F.3d 748, 753
(7th Cir. 2008) (petitioner did not show government “con-
doned the persecution or was completely helpless to protect
him”). To the extent that this language suggests a heightened
standard, we clarify—in keeping with our long line of cases
on the matter—that a petitioner need show only that the gov-
ernment is “unable or unwilling” to control the persecutors.
See Osorio-Morales, 72 F.4th at 742; Almutairi, 722 F.3d at 1002–
03; Balogun v. Ashcroft, 374 F.3d 492, 499 n.8 (7th Cir. 2004);
Chitay-Pirir v. I.N.S., 169 F.3d 1079, 1081 (7th Cir. 1999); see
also Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir.
No. 22-2434 7
2017) (en banc); Matter of Pierre, 15 I. & N. Dec. 461, 462 (BIA
1975).
Nerio next argues that, even if the IJ applied the correct
standard, substantial evidence does not support his conclu-
sion about the government’s ability to protect her. The IJ, she
asserts, made too much of her testimony about her hesitancy
to report Walter and her flight shortly after she received the
protective order. She insists that she did not rely on the gov-
ernment’s help because she knew that doing so would be fu-
tile. In support, she points to Walter’s refusal to comply with
their settlement and to more general evidence discussing cor-
ruption in the Guatemalan government (including the police
and judiciary), the failure of police to respond to domestic-
violence calls, and inequities experienced by women and in-
digenous communities.
We take Nerio’s assertions seriously, but the evidence
does not “compel[] a different result.” See Osorio-Morales,
72 F.4th at 742 (citation and emphasis removed). Nerio did
not initially report Walter’s misconduct to law enforcement,
and we have found it “reasonable—even in cases of extreme
violence—to expect asylum seekers to have sought help from
the authorities.” Id. at 743. And when Nerio eventually did
report Walter, the government issued a protective order. In-
deed, the IJ regarded the protective order as a significant legal
penalty, given Walter’s reportedly angry response to it. Addi-
tionally, the IJ reasonably weighed the generalized country-
condition evidence against Nerio’s more particularized testi-
mony, see Sibanda v. Holder, 778 F.3d 676, 681 (7th Cir. 2015),
which reflects that the government responded to her en-
treaties for help by taking steps to protect her.
8 No. 22-2434
Finally, Nerio contends that her circumstances resemble
those in Juan Antonio v. Barr, 959 F.3d 778, 795 (6th Cir. 2020),
which granted the petition of a Guatemalan woman of Mayan
descent who introduced evidence that governmental officials
were unable or unwilling to protect her. But unlike this case,
the petitioner there presented evidence that her assailant vio-
lated a government-issued restraining order and was unde-
terred by a fine, and that the police twice failed to respond
when she sought help from them. See id. at 794.
Because Nerio did not establish that the Guatemalan gov-
ernment was unable or unwilling to protect her, she does not
qualify for asylum or withholding of removal. See Ingmantoro
v. Mukasey, 550 F.3d 646, 652 (7th Cir. 2008). Thus, the petition
for review is DENIED.