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Hernandez-Garcia v. Barr

United States Court of Appeals, Seventh Circuit

July 22, 2019

Juana Hernandez-Garcia, et al., Petitioners,
William P. Barr, Attorney General of the United States, Respondent.

          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.


         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 ...

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