Argued
May 15, 2019
Petition for Review of an Order of the Board of Immigration
Appeals. Nos. A208-190-985, A208-190-986, A208-190-987
Before
WOOD, Chief Judge, and Easterbrook and Hamilton, Circuit
Judges.
WOOD,
CHIEF JUDGE.
Juana
Hernandez-Garcia is a citizen of Guatemala. She and two of
her children, Brian and Yeniser Morales-Hernandez, entered
the United States without proper documentation on August 29,
2015. They immediately received Notices to Appear for removal
proceedings, but those Notices did not specify a date and
time for their hearing. Later, when they nonetheless appeared
before an immigration judge, they conceded removability but
filed requests for asylum, withholding of removal, and
protection under the Convention against Torture. As we detail
below, first the immigration judge and then the Board of
Immigration Appeals rejected those requests and ordered
removal. Hernandez-Garcia, on behalf of both her children and
herself, has petitioned this court for review. We conclude
that the Board's decision must be upheld, and so we deny
their petitions for review.
I
In
Guatemala, Hernandez-Garcia and her two youngest children
lived in the village of Chiantla, Huehuetenango. Her husband,
Anacleto Morales-Fuentes, came to the United States illegally
in 2001. He regularly sent $200 to $300 every two weeks to
his wife; in order to obtain access to that money, she took a
bus to a nearby city and withdrew it from a bank. As a result
of the extra funds she received, her home in the village was
larger than those of her neighbors, and she had a higher
standard of living. Until 2013, her oldest son lived with her
and the two youngest children, but that year he left for the
United States and left her on her own.
It was
not long before she began receiving anonymous notes asking
for money and threatening her and the children. She told the
immigration judge that she was certain the notes were from
gang members. At first she did not take them seriously, but
at the end of August 2015 they became more worrisome. One
even threatened death if she did not pay the senders. On
another occasion, someone knocked at the door and left a note
with a vague threat that something bad would happen to her.
Hernandez-Garcia reported these incidents to the police, but
they ignored her. Fearful, she left Guatemala with Brian and
Yeniser on August 27, 2015. When they reached the U.S.
border, Hernandez-Garcia was interviewed by the Border
Patrol. They were promptly served with Notices to Appear, and
on November 2, 2017, an immigration judge held a hearing on
their applications for asylum, withholding of removal, and
protection under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), Dec. 10, 1984, S. Treaty Doc. No. 100-20,
1465 UNTS 114.
Hernandez-Garcia
was designated the lead respondent at the hearing, but all
three applicants testified. Hernandez-Garcia described the
events set forth above, but, as the immigration judge found,
she also admitted that "she told the [Border Patrol]
officer that she had no fear of persecution or torture and
that she had left her country because of the poverty."
Brian, who was 18 years old by that time, recounted that just
before the family left Guatemala he was regularly stopped by
gang members, asked to join the gang, and asked about his
father. No one ever harmed him, but he said that he was
afraid to return because "the people who left the
notes" thought that his family had money. Yeniser, age
16 at the hearing, testified that she lived in fear in
Guatemala because there was no older man in the house. No one
ever approached her personally, but her mother told her about
the threats.
The
immigration judge found all three to be credible, but she
concluded that none of them had described harm that qualifies
as past persecution. The judge acknowledged that the threats
and encounters Hernandez-Garcia described were
"unsettling," but they were nonetheless not
sufficiently imminent or severe to be more than harassment.
In the
alternative, the judge concluded that even assuming that the
threats were severe enough to fall within the definition of
persecution, Hernandez-Garcia's petitions for asylum and
withholding had to be rejected for an independent reason: she
failed to demonstrate a sufficient nexus between the harm she
and her children experienced and a protected ground (race,
religion, nationality, membership in a particular social
group, or political opinion, 8 U.S.C. § 1101(a)(42)(A)).
In addition to her concerns about nexus, the immigration
judge was also skeptical about the two proposed social groups
Hernandez-Garcia proposed: single females with no male
head-of-household, and well-to-do persons opposed to gangs.
Perceived or actual wealth, standing alone, does not form the
basis of a particular social group, the judge said, and the
gangs were extorting Hernandez-Garcia simply because they
thought she could pay.
The
immigration judge wrapped up her opinion with several final
points. First, the judge ruled that Hernandez-Garcia had not
demonstrated a well-founded fear of future persecution, nor
had she shown that she and her children would be singled out
individually for persecution in Guatemala. Furthermore, she
had not shown that they belonged to any group that is
subjected to a pattern or practice of persecution in
Guatemala. Last, the judge found that nothing
Hernandez-Garcia had described amounted to torture, for
purposes of the CAT, see 8 C.F.R. § 1208.18(a), nor did
she have any evidence that a public official would perform or
acquiesce in acts of torture, or that she could not
successfully relocate in the country to avoid harm.
The
Board of Immigration Appeals "adopt[ed] and affirm[ed]
the decision of the Immigration Judge." For the asylum
and withholding petitions, it emphasized the immigration
judge's finding of a lack of a nexus between the
extortion threats and gang harassment she had experienced and
any protected ground for relief. It also agreed with the
immigration judge that Hernandez-Garcia's showing fell
short for purposes of the CAT. Finally, the Board addressed
and rejected Hernandez-Garcia's argument that the
proceedings against her were jurisdictionally barred because
of the absence of date-and-place information in the Notice to
Appear, citing its decision in Matter of
Bermudez-Cota,27 I&N Dec. 441 (BIA 2018).
Hernandez-Garcia did receive a later notice with ...