Veronica Santana v. Eric Holder, Jr.

Filing

OPINION filed : DENIED, decision not for publication. Alice M. Batchelder, Circuit Judge; John M. Rogers, Authoring Circuit Judge and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0656n.06
No. 14-3663

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
VERONICA SANTANA, aka Veronica Nunez Lino
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

BEFORE:

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FILED
Sep 28, 2015
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BATCHELDER, ROGERS, and COOK, Circuit Judges.

ROGERS, Circuit Judge. Veronica Santana is a Mexican citizen who seeks withholding
of removal. Santana claims that, if she returns to Mexico with her children, she will be targeted
by gangs because of her membership in a “particular social group,” namely “Mexicans who have
been in the United States for [an] extended period of time and are returning to Mexico with
Americanized children.”

The Board of Immigration Appeals denied her application for

withholding of removal, in part because it found that she “has not demonstrated the required
nexus between the harm she fears and her status” in the particular social group alleged. A.R. at
4–5. Because this finding is supported by substantial evidence and her other arguments are
without merit, the Board did not abuse its discretion in dismissing Santana’s appeal.
On November 18, 2010, the Department of Homeland Security (DHS) initiated removal
proceedings against Santana. A.R. at 86. DHS charged her with removability under INA

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§ 212(a)(6)(A)(i) as an alien “present in the United States without having been admitted or
paroled.” A.R. at 326. Santana conceded removability at her first hearing on June 28, 2011,
A.R. at 86, admitting that she had entered the United States at an unknown point of entry without
a valid entry document in 2003. She sought asylum, withholding of removal, and protection
under the Convention Against Torture (CAT) at her second hearing on August 30, 2011.1
Though Santana’s initial application indicated only that she feared returning to Mexico because
of the country’s rampant criminal violence,2 A.R. at 352, Santana later altered her claim to seek
withholding of removal based on the statute that prohibits the Attorney General from removing
an alien to a country if “the alien’s life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A) (emphasis added). Santana claimed that, should she be
removed to Mexico, she would be persecuted because she was a member of a particular social
group, namely “Mexicans who have been in the United States for [an] extended period of time
and are returning to Mexico with Americanized children.”

A.R. at 159; see 8 U.S.C.

§ 1231(b)(3)(A). After Santana’s third hearing on December 10, 2012, the Immigration Judge
(IJ) denied her application for relief.
1

On appeal, Santana waived any challenges to the Board’s denial of her asylum and CAT claims. Appellant’s Br. at
21.
2
On her asylum application, Santana stated:
Insecurity in Mexico is terrible, day by day organized crime cartels kill and torture innocent
people without any compassion[.] [T]he idea terrifies me to think back especially now that the
criminal situation in Mexico is uncontrollable.
I just received the newspapers from my town and there [is] nothing but criminal reports.
I am very afraid to return to Mexico, due to the wave of violence that is living in there.
A.R. at 352. Santana’s generalized fears about the criminal violence in Mexico are consistent with those expressed
by Santana at her first hearing, where Santana indicated that she did not want to return to Mexico “because it’s very
dangerous.” A.R. at 145. Though Santana admitted that she did not necessarily think that someone in particular
would harm her should she return, she had heard that “there [are] a lot of delinquents that hurt people [in Mexico],
and that’s why [she was] scared.” A.R. at 146.

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At the December 10, 2012 hearing, Santana was the sole witness in support of her
application. Santana testified that she feared returning to Mexico “because the crime is very
advanced” and her “children are used to . . . life” in the United States. A.R. at 179, 193. She
feared that something—such as a kidnapping—would happen to her children because, “when
people see you coming from [the United States] to [Mexico,] they believe you’re carrying a lot
of money.” A.R. at 180, 193. According to Santana, her family members had told her that
persons returning to Mexico from the United States were being targeted. A.R. at 182. By way of
example, Santana explained—though failed to corroborate—the story of a family who—after
returning to Mexico from the United States—was allegedly “asked . . . for money.” A.R. at
182−83, 193−94. She also mentioned that the police in Mexico had allegedly beaten up three of
her nephews for “no reason.” A.R. at 199, 334. Santana, however, admitted that her nephews
had never spent any time in the United States, A.R. at 181, and she did not corroborate this
incident. Santana also testified that she did not have any proof that anyone in Mexico had an
interest in harming either her or her children should she return, and stated that she had never had
any problems before. A.R. at 180, 194. In addition to Santana’s testimony, Santana submitted
various documents describing conditions in Mexico, including two State Department reports.
A.R. at 232−316.
At the end of the hearing, the IJ issued an oral decision denying Santana relief. Although
the IJ acknowledged that Santana “was poorly served” by the notario who assisted her in
drafting her application, A.R. at 89, the IJ nevertheless determined that Santana was not credible
because her “testimony was not very detailed” and “was anything but persuasive.” A.R. at 93.
In so finding, the IJ also pointed to Santana’s failure to provide corroborating evidence, stating:

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In the case at bar the respondent claimed to have pictures of one of the nephews
belonging to her husband. She claimed to have some sort of proof that one of the
nephews had filed a complaint with the police. None of these matters were
proffered to the Court. They could have been proffered to the Court, and the fact
that they were not not only demonstrates that she should have provided them but
that also is a factor to be considered in deciding that she is not credible.
A.R. at 94.

Next, the IJ denied Santana’s asylum application as untimely.

A.R. at 95.

Finally, the IJ rejected her requests for relief on the merits, finding that: (1) Santana had not
shown that “Mexicans who [have] been in the United States for an extended period of time and
are returning to Mexico with Americanized children” constituted a social group eligible for
either asylum or withholding of removal, A.R. at 96−97; (2) even assuming arguendo that it was
a viable social group, she had not “presented any evidence indicating that she would be at risk of
being harmed on the basis of the membership in th[e] particular social group,” A.R. at 96−97;
and (3) she “ha[d] not demonstrated a well-founded fear objectively or subjectively of future
persecution,” A.R. at 105−06.
The BIA affirmed. A.R. at 3−6. The Board first determined that a remand was not
necessary to afford Santana an opportunity to provide corroborating evidence relating to her
nephews’ beating because the beating was “not relevant to [Santana’s] asylum claim”; evidence
of the nephews’ beating, which had allegedly occurred for “no reason,” had no bearing on
whether Santana, a returning immigrant with Americanized children, would be persecuted. A.R.
at 3. Second, the Board agreed with the IJ that Santana had not shown membership in a
“particular social group within the meaning of the Act” because the proposed group lacked
particularity and social distinction. A.R. at 5. Third, the Board explained in the alternative that:
Even if the respondent’s proposed group were cognizable under the Act, she has
not demonstrated the required nexus between the harm she fears and her status as
a Mexican who has been in the United States for an extended period of time and is
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returning to Mexico with Americanized [children]. [Santana] has not provided
any evidence to establish that she would be personally targeted in Mexico based
on her proposed group or for any other reason. She has also not demonstrated a
pattern or practice of persecution of a group of similarly situated people on
account of a protected ground. Although the respondent testified that some of her
family members have been victims of violence in Mexico, the record does not
establish that these attacks were anything more than random criminal acts.
Therefore, . . . we concur with the Immigration Judge that [Santana] did not
establish eligibility for withholding of removal.
A.R. at 4−5 (internal citations omitted).
Santana petitions for review. She requests remand in light of two recent decisions of the
BIA concerning the definition of “a particular social group.” Santana alleges that, because
Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), and Matter of W-G-R-, 26 I. & N. Dec.
208 (B.I.A. 2014), established new law in regard to how to show membership in a “particular
social group,” she should be afforded the “opportunity to more properly formulate a ‘particular
social group’ that meets the new guidelines.” Appellant’s Br. at 21, 31. Santana also contends
that the BIA erred in failing to address her argument that the Real ID Act requires immigration
judges to provide immigrants notice and opportunity to produce corroborating evidence, and that
the BIA erred in allowing a one-member, rather than a three-member, panel to review her case.
These arguments lack merit.
Because Santana failed to show that she would likely be persecuted if she returned to
Mexico, it is unnecessary to decide whether she is a member of a particular social group or to
remand the case for that purpose. Substantial evidence supports the BIA’s finding that Santana
was not likely to be persecuted if she returned to Mexico, and in any event not likely to be
harmed because of “her status as a Mexican who has been in the United States for an extended
period of time and is returning to Mexico with Americanized [children].” A.R. at 4. Santana

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admitted that she had never been harmed in Mexico. A.R. at 96, 180. Further, Santana’s
testimony in regard to her fear of returning to Mexico focused not on how members of her
proposed group are persecuted, but rather generally on how “the criminal situation in Mexico is
uncontrollable” and the “crime is very advanced.” A.R. at 179, 334. For instance, she explained
that her nephews had been beaten by the police, yet admitted that they had never been to the
United States and the incident had occurred for “no reason,” not because they were members of
her proposed group. A.R. at 181, 199, 334. Her discussion of the family who—after returning to
Mexico from the United States—was asked for money, lacked any detail and failed to show that
the request for money was made because of the family members’ membership in Santana’s
proposed social group.

Finally, the documents included with Santana’s petition describing

conditions in Mexico painted a frightening picture of the violence and crime prevalent in the
country, but said nothing about the treatment of Mexicans who return to Mexico from the United
States with Americanized children. Considered cumulatively, this evidence supports the BIA’s
finding.
Any remand for reconsideration of whether Mexicans who have been in the United States
for an extended period of time and are returning to Mexico with Americanized children as
alleged by Santana are a “particular social group” is not necessary. Santana requests that her
case be remanded to the IJ for reconsideration in light of recent BIA decisions concerning the
definition of “particular social group,” even though the BIA cited these very precedents. See
Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014); Matter of W-G-R-, 26 I. & N. Dec. 208
(B.I.A. 2014).

Santana argues that these decisions fundamentally changed the standard

applicable to her withholding application and that due process compelled the BIA to remand to
the IJ with the opportunity for Santana to present new arguments and evidence. See Petitioner’s
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Br. at 31−32. However, an agency’s clarification or change in an applicable standard for relief
does not necessarily require a new hearing at a lower level of the agency process before the
agency can rule. In any event, any error concerning whether Mexicans who have been in the
United States for an extended period of time and are returning to Mexico with Americanized
children are a particular social group did not affect the outcome of the proceeding because
Santana did not sufficiently show that she is likely to be persecuted on that basis in Mexico,
which is a necessary element of her claim for withholding of removal. “To prevail on a due
process challenge, an alien must demonstrate not only error, but also substantial prejudice, or
show the alleged violation affected the outcome of the proceeding.” Fayzullina v. Holder,
777 F.3d 807, 815 (6th Cir. 2015). Both the IJ and BIA determined that Santana failed to show
likelihood of persecution based on the asserted category and a change in law concerning the
definition of a particular social group provides no reason to revisit this determination.
Santana also argues extensively that the Board erred in failing to address her argument
that, under the Real ID Act, the IJ was required to give her notice and an opportunity to provide
the corroborating evidence deemed missing. Petitioner’s Br. at 36−48. Santana focuses, in
particular, on the IJ’s failure to afford her an opportunity to provide proof of her nephews’
beating. However, we do not need to address this argument because, as the Board underscored,
the missing corroborating evidence is not relevant to Santana’s claim and thus would not have
changed the IJ’s determination regarding her eligibility for relief.
Finally, whether Santana may challenge the BIA’s decision to refer a case to a singlemember or three-member panel remains an open question before this court. See, e.g., Denko v.
I.N.S., 351 F.3d 717, 732 (6th Cir. 2003). Assuming without deciding that judicial review of the
BIA’s case-management system is appropriate, acceptance of Santana’s argument would in any
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event not require reversal.

The judge’s credibility determination—which Santana claims

was “clearly erroneous,” thus entitling her to a three-member panel under 8 C.F.R.
§ 1003.1(e)(6)(v)—did not affect the Board’s finding that Santana had failed to present sufficient
evidence that she was likely to be persecuted on account of her membership in the proposed
social group. Santana has thus failed to demonstrate that her case should have been reviewed by
a three-member panel of the BIA.
The petition for review is denied.

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