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Molina v. Whitaker

United States Court of Appeals, Eighth Circuit

December 12, 2018

Maleni Gutierrez Molina; Eduardo Yoneli Guido Gutierrez; Melina Elizabeth Guido Gutierrez; Jorge Javier Guido Gutierrez Petitioners
v.
Matthew G. Whitaker, Acting Attorney General of the United States[1] Respondent

          Submitted: October 17, 2018

          Petition for Review of an Order of the Board of Immigration Appeals

          Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         Maleni Gutierrez Molina and three of her children, Eduardo Yoneli Guido Gutierrez, Melina Elizabeth Guido Gutierrez, and Jorge Javier Guido Gutierrez-natives and citizens of Mexico-petition for review of an order of the Board of Immigration Appeals denying their claims for asylum, withholding of removal, and relief under the Convention Against Torture. This court denies the petition for review.

         I.

         Maleni Gutierrez Molina and her children were paroled into the United States in 2015. The government placed them in removal proceedings. Gutierrez conceded removability, but requested asylum, withholding of removal, and protection under the Convention Against Torture, based on fears that she and her family would be harmed if returned to Mexico.

         "To be eligible for asylum, an applicant must show that she is unable or unwilling to return to her country of origin 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Marroquin-Ochoma v. Holder, 574 F.3d 574, 577 (8th Cir. 2009), quoting 8 U.S.C. § 1101(a)(42)(A). The Gutierrezes seek asylum based on their membership in a particular social group.

         At the removal hearing, Gutierrez and other family members testified that a cartel kidnapped Gutierrez's niece and demanded a ransom. The cartel released her the next day after her mother paid part of the ransom. Gutierrez and her children left Michoacan, Mexico, after the kidnappers demanded the rest of the money and threatened her family. The Gutierrezes recalled several other incidents. Eduardo received a threatening call from an unknown caller demanding money. After turning off his cell phone, he did not receive any more threats. A truck followed Melina once, but after waiting inside a house for 15 to 20 minutes, she walked home safely. Gutierrez testified she witnessed two people getting killed. The immigration judge asked several times why she did not report these crimes to police and questioned whether her husband-a police officer in Mexico-would do anything if someone reported crimes to him.

         During the hearing, Gutierrez's attorney did not elicit testimony identifying any particular social group. Instead, at the close of the hearing, her attorney stated "I do have proposed social groups if the Court would like it." The judge replied:

No, it's not up to you to tell me what the social groups are, it's up to the [Gutierrezes] to do that. . . . [A]t the end of all the testimony and evidence, I don't find it particularly appropriate because you may propose a social group that I don't know anything about and I'm going to have to start asking more questions.

         Her attorney replied, "Nothing further, Your Honor."

         The judge analyzed Gutierrez's application for asylum based on her membership in three potential social groups: family, family members of police officers, and persons who resist gangs in Mexico. The judge found no well-founded fear of future persecution because Gutierrez failed to connect the kidnapping and other incidents to any protected ground. She also failed to demonstrate past persecution because her family experienced only unfulfilled threats lacking specificity and immediacy. Because they failed to establish their eligibility for asylum, the judge denied their claims for asylum and withholding of removal. The judge also denied relief under the Convention Against Torture.

         Gutierrez appealed to the BIA, arguing the immigration judge violated the Due Process Clause and erred in finding no past persecution or well-founded fear of future persecution. The BIA rejected Gutierrez's due ...


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