Maleni Gutierrez Molina; Eduardo Yoneli Guido Gutierrez; Melina Elizabeth Guido Gutierrez; Jorge Javier Guido Gutierrez Petitioners
Matthew G. Whitaker, Acting Attorney General of the United States Respondent
Submitted: October 17, 2018
Petition for Review of an Order of the Board of Immigration
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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.
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.
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.
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
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.
attorney replied, "Nothing further, Your Honor."
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.
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 ...