Graciano Rodriguez-Tovar v. Eric Holder, Jr., et al

Filing

OPINION filed : The petition for review is DENIED. The requests for the case to be held in abeyance or referred to mediation are also DENIED. Decision not for publication. Julia Smith Gibbons and David W. McKeague (AUTHORING), Circuit Judges; S. Thomas Anderson, U.S. District Judge for the Western District of Tennessee, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0687n.06

FILED

Case No. 14-4248
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GRACIANO RODRIGUEZ-TOVAR,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

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Oct 09, 2015
DEBORAH S. HUNT, Clerk

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

OPINION

BEFORE: GIBBONS and McKEAGUE, Circuit Judges; ANDERSON, District Judge.

*

McKEAGUE, Circuit Judge. Graciano Rodriguez-Tovar, a Mexican citizen, seeks
review of the denial by the Board of Immigration Appeals (BIA) of his motion to reopen his
proceedings. The immigration judge denied his petition for withholding of removal under the
Immigration and Nationality Act and his claim for protection under the Convention Against
Torture (CAT). The BIA dismissed his appeal and ordered him to voluntarily depart within sixty
days. He then filed his motion to reopen proceedings, which the BIA denied. Rodriguez-Tovar
contends that he would be persecuted if he returned to Mexico because he is a returning

*

The Honorable S. Thomas Anderson, United States District Judge for the Western
District of Tennessee, sitting by designation.

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deportee. Because we find that the decision of the BIA to deny his motion to reopen was not an
abuse of discretion, we deny Rodriguez-Tovar’s petition.
I
Rodriguez-Tovar is a native and citizen of Mexico. He first illegally entered the United
States in 1998, but he voluntarily returned to Mexico to visit his parents on November 25, 1999.
While attempting to illegally reenter the United States, Rodriguez-Tovar was apprehended by
border patrol agents on February 19, 2000. He again illegally reentered the United States on
February 25, 2000, before returning to Mexico to visit his parents on March 15, 2007. He was
apprehended by border patrol agents on May 16, 2007, while attempting to illegally reenter the
United States. On June 29, 2007, he illegally reentered the United States and was apprehended
one year later by Michigan State Police.
On February 19, 2009, Rodriguez-Tovar conceded his removability as charged during a
hearing before an immigration judge. He sought relief from removal, however, in the form of
withholding of removal under 8 U.S.C. § 1231(b)(3) and protection from torture under CAT. He
conceded that he was statutorily ineligible for asylum because he had not filed his application
within one year of his arrival in the United States.
Hearing Before the Immigration Judge. During a merits hearing before the immigration
judge, Rodriguez-Tovar testified to the following: He was born and raised in San Miguel de
Allende, Guanajuato, Mexico. He was never mistreated or harmed while residing in San Miguel
de Allende. In June 2007, he and his wife traveled fifteen hours by bus from his hometown to
Laredo, Mexico, to illegally reenter the United States. While at a bus station in Laredo, a
smuggler approached them and offered to transport them across the border for $3,000 per person.
He and his wife agreed to obtain money from relatives in the United States to pay the smugglers

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upon their arrival in the United States, and they left the bus station with the smugglers to cross
the border. He believed that the smugglers were kidnapping them when they did not release him
and his wife as promised and instead took them to a house in Laredo, Texas to await payment of
the smuggling fee. The smugglers took the money he and his wife were carrying as well as their
Mexican identification documents. He claimed that the smugglers threatened to shoot them if
they tried to escape before paying. His brother sent the smugglers $2,500, but Rodriguez-Tovar
and his wife still owed the smugglers a few thousand dollars. He claimed that the smugglers
then took him and his wife to a hotel, where they allowed him and his wife to go to a restaurant
to eat breakfast. He and his wife decided to leave without informing the smugglers, and his
brother arranged for an individual to drive his wife and him from Laredo, Texas to Indiana. He
did not report the incident to law enforcement. Neither he nor his wife has had any contact with
the smugglers since they left the hotel in 2007.
Rodriguez-Tovar claimed that he is afraid of returning to Mexico “because of my
children, because they’re from here, and there are so many kidnappings.” A.R. 444. He believed
that the smugglers who kidnapped him in 2007 could kidnap his children now because they had
kept his and his wife’s identification documents. When asked how the kidnappers would know
that he had returned to Mexico, Rodriguez-Tovar answered, “I don’t know. I couldn’t say.”
A.R. 447–48.

Additionally, when asked who else he fears in Mexico, Rodriguez-Tovar

answered, “It’s just that there’s so many people, there’s so many that do harm.” A.R. 448. He
stated that he does not “trust much in the Mexican authorities.” He further testified that he fears
more for his United States citizen children who would accompany him to Mexico than for
himself, explaining that “because people that come from here going there, they think that you

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have money or they think that you have more money, a lot more money, and so there are a lot of
kidnappings because of that.” A.R. 445–446.
In an oral decision issued on August 19, 2013, the immigration judge denied RodriguezTovar’s application for relief and protection and ordered him to be removed to Mexico. The
immigration judge first evaluated Rodriguez-Tovar’s credibility. The immigration judge noted
that Rodriguez-Tovar did not claim any fear of returning to Mexico until more than three years
after his initial hearing, and that “certainly calls into question the validity of that fear.” A.R. 249.
The immigration judge also noted, however, that “in comparing [his] testimony with the
information contained in his written I-589 application, that he basically testified consistent with
that information.” Id. The immigration judge concluded that “based upon the totality of the
circumstances, being very generous to [Rodriguez-Tovar] in its credibility assessment, this Court
will not render an adverse credibility finding in this case.” Id.
The immigration judge then considered and denied Rodriguez-Tovar’s application for
withholding of removal. The immigration judge found that his “proposed social group,
individuals with ties to the United States, which would make him more visible in Mexico, is
simply too broad and too amorphous for this Court to find that it has the requisite particularity.”
A.R. 250. The immigration judge also found that, regardless of whether Rodriguez-Tovar’s
particular social group was cognizable, he “failed to set forth any harm that was brought to him
as a result of him having ties in the United States.” A.R. 251. There was “absolutely no
indication that [his] kidnappers or smugglers targeted [him] because he has family ties to the
United States,” and he had only articulated “a fear of general country conditions in Mexico
brought on by unfortunate rampant crime in many areas in Mexico.” A.R. 252.

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Finally, the immigration judge considered and denied Rodriguez-Tovar’s application for
CAT protection. The immigration judge stated that there was “absolutely no evidence” that he
had suffered past persecution or that the Mexican government would acquiesce to anyone
torturing Rodriguez-Tovar if he returned to Mexico. A.R. 252. The immigration judge further
noted that Rodriguez-Tovar’s testimony regarding his claimed fear that he or his children would
be harmed in Mexico was “vague and equivocating.” A.R. 253.
BIA’s May 28, 2014 Decision.

Rodriguez-Tovar appealed the immigration judge’s

decision to the BIA and filed a motion to remand the case in light of Umana-Ramos v. Holder,
724 F.3d 667 (6th Cir. 2013). The BIA denied Rodriguez-Tovar’s motion to remand and
dismissed the appeal. It conducted de novo review of the immigration judge’s denial of
Rodriguez-Tovar’s application for withholding of removal, and it found that his “proposed social
group consisting of ‘individuals with ties to the United States which would make them more
visible in Mexico’ is too broad and amorphous to constitute a valid social group and thus it lacks
sufficient ‘particularity.’” A.R. 110. The BIA also ruled that he “has not established a nexus
between his alleged membership in this group and the alleged kidnapping of him and his wife by
individuals he hired to smuggle them into the United States.”

Id. Additionally, the BIA

concluded that Rodriguez-Tovar had failed to demonstrate his eligibility for CAT protection.
Rodriguez-Tovar never filed a petition for review of this BIA decision.
BIA’s November 24, 2014 Decision. On July 25, 2014, Rodriguez-Tovar filed a motion to
reopen with the BIA. His motion rested on two grounds: (1) subsequent cases decided by the
BIA that he maintained had changed the “instructions” given to aliens on how to prove a
particular social group, A.R. 52, and (2) four articles that he described as demonstrating changed
country conditions in Mexico. On November 24, 2014, the BIA denied his motion to reopen.

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First, the BIA rejected his claim that the Board’s decisions in Matter of W-G-R-, 26 I.
& N. Dec. 227 (BIA 2014), and Matter of M-E-V-G-, 26 I. & N. Dec. 208 (BIA 2014), mandated
reopening. The BIA held that even if these cases were intervening case law, there was no basis
for remand because “even were we to allow [Rodriguez-Tovar] to formulate a different social
group, we would still find that he has not established a nexus between his membership in such a
group and the alleged harm he suffered.” A.R. 7.
The BIA then considered the four articles that Rodriguez-Tovar proffered with his motion
to reopen. The first article describes the increasing violence committed by gangs in the border
state of Tamaulipas,1 including kidnappings, killings, and theft. A.R. 79–83. The article also
identifies deportees as easy targets for these gangs. Id. The second article discusses Mexican
drug cartels and political corruption, as well as the Mexican government’s efforts to combat
these cartels. A.R. 85–96. It mentions the general danger these cartels pose to deportees. Id.
The third article describes the vulnerability of deportees to cartels committing violent crime in
Tamaulipas, Mexico. A.R. 98–100. The final article generally outlines crime and violence in
Mexico. A.R. 102–07.
As an initial matter, the BIA noted that Rodriguez-Tovar “need not demonstrate changed
country conditions because his motion is timely.” A.R. 7. It then concluded that the information
in the articles was not material to his asylum claim because the articles were too general and did
not establish a nexus between his membership in a particular social group (assuming he could
show such membership) and his fear of persecution. It also found that the articles did not
support a finding that he was eligible for CAT protection, because they did not demonstrate that
he would likely be tortured with the acquiescence of the Mexican government if he returned to
1

Tamaulipas, Mexico is fifteen hours by bus from Rodriguez-Tovar’s hometown of San Miguel de Allende,
Mexico, where he has never been harmed. Resp. Br. at 31.

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Mexico. Thus, the BIA denied Rodriguez-Tovar’s motion to reopen. It is this BIA decision that
he now appeals.
II
We review the BIA’s denial of a motion to reopen for abuse of discretion. Liu v. Holder,
560 F.3d 485, 489 (6th Cir. 2009). An abuse of discretion occurs if the decision to deny a
motion to reopen “‘was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as invidious discrimination against
a particular race or group.’” Id. at 490 (quoting Allabani v. Gonzalez, 402 F.3d 668, 675 (6th
Cir. 2005)). The Attorney General’s discretion to reopen a matter is “broad,” INS v. Doherty,
502 U.S. 314, 323 (1992), and “a party seeking reopening … bears a heavy burden.” Alizoti v.
Gonzalez, 477 F.3d 448, 451 (6th Cir. 2007). The evidence sought to be offered at the reopened
proceeding must be “‘material and … not available and could not have been discovered at the
former hearing.’” Sako v. Gonzalez, 434 F.3d 857, 863 (6th Cir. 2006) (quoting Allabani v.
Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)); see also 8 C.F.R. § 1003.2(c)(1). We apply the
substantial evidence standard to review the BIA’s factual determinations, reversing only if the
evidence “not only supports a contrary conclusion, but indeed compels it.” Klawitter v. INS,
970 F.2d 149, 152 (6th Cir. 1992) (citing INS v. Elias-Zacarias, 502 U.S. 467 (1992)) (emphasis
in original).
There are “‘at least’ three independent grounds on which the BIA might deny a motion to
reopen—failure to establish a prima facie case for the relief sought, failure to introduce
previously unavailable, material evidence, and a determination that even if these requirements
were satisfied, the movant would not be entitled to the discretionary grant of relief which he
sought.” INS v. Doherty, 502 U.S. 314, 323 (1992) (quoting INS v. Abudu, 485 U.S. 94, 104

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(1988)).

Here, the BIA denied the motion to reopen because Rodriguez-Tovar had not

established that he would be entitled to the grant of relief he sought.
A
Rodriguez-Tovar argues that two decisions by the BIA after his proceedings warrant his
case being reopened. Specifically, he points to the BIA’s issuance of Matter of M-E-V-G- and
Matter of W-G-R-. These two decisions, Rodriguez-Tovar argues, change the requisite showing
for particularized social group, an element of both a withholding of removal and an asylum
claim.2

In denying his motion to reopen, the BIA held that “even were we to allow the

respondent to formulate a different social group, we would still find that he has not established a
nexus between his membership in such a group and the alleged harm he suffered.” A.R. 7. And
so, the BIA notes, his claim would fail for the same reason it failed previously. We need not
decide whether Matter of M-E-V-G- and Matter of W-G-R- are intervening case law, because
they do not affect the BIA’s May 28, 2014 alternative holding. And, as discussed below, there is
substantial evidence to support the BIA’s finding that Rodriguez-Tovar failed to establish a
nexus between his alleged social group (returning deportees) and his fear of persecution. The
BIA therefore did not abuse its discretion in denying Rodriguez-Tovar’s motion to reopen upon
finding that Matter of M-E-V-G- and Matter of W-G-R- did not affect its denial of his application
for withholding of removal.
B
Nor did the BIA abuse its discretion in determining that Rodriguez-Tovar had failed to
demonstrate a nexus between his membership in a particular social group and his fear of
persecution. Rodriguez-Tovar provided four articles that described gang violence in Mexico,
2

As Rodriguez-Tovar frames it, he would no longer have to show that his proposed social group was socially visible
to his persecutors, but instead could show that his social group is recognized by Mexican society as a whole. Pet.
Br. 21.

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including violence against returning deportees as evidence of changed country conditions.
Rodriguez-Tovar argues that the BIA used the incorrect burden of proof when considering his
asylum claim. There is nothing in the BIA’s decision that supports such a claim. In fact, the
BIA found the evidence Rodriguez-Tovar presented in his motion to be immaterial because it did
not address his failure to show a nexus. A.R. 7.
There is substantial evidence to support the BIA’s finding that Rodriguez-Tovar did not
demonstrate a nexus between his membership in a particular social group (returning deportees)
and his fear of persecution.

First, Rodriguez-Tovar did not suffer any past persecution.

According to Rodriguez-Tovar, kidnappers held him and his wife for pecuniary reasons, not
because of their perceived ties to the United States. Mistreatment that is not tied to a protected
ground does not constitute persecution, and so Rodriguez-Tovar and his wife were not
persecuted when they were allegedly kidnapped by smugglers he hired. See Bonilla-Morales v.
Holder, 607 F.3d 1132, 1137–38 (6th Cir. 2010).
Additionally, Rodriguez-Tovar has failed to demonstrate a fear of future persecution on
the basis of his membership in a particular social group. Rodriguez-Tovar claims that the BIA
did not consider his fear of future persecution at all, but the BIA’s ruling demonstrates that it did
consider the articles he presented describing “general violence in Mexico on account of
organized crime and gang violence” as well as “violence directed towards returning deportees”
before deciding that “such general articles do not address the respondent’s lack of a nexus
showing as previously stated.” A.R. 7. A generalized fear of violence is insufficient to establish
persecution. Almuhtaseb v. Gonzalez, 453 F.3d 743, 750 (6th Cir. 2006). The BIA found that
the four articles that Rodriguez-Tovar proffered describing gang violence in Mexico and
violence directed towards returning deportees were too “general” and “d[id] not address [his]

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lack of a nexus showing as previously stated.”

A.R. 7. We have no reason to conclude

otherwise. Accordingly, the BIA did not abuse its discretion in denying Rodriguez-Tovar’s
motion to reopen.
C
The Convention Against Torture provides protection to individuals facing removal who
are likely to be tortured if returned to their home county. To prevail on a claim under the CAT,
the petitioner must prove that it is more likely than not that he will be tortured if removed to the
designated country. 8 C.F.R. § 208.16(c)(2); see also Ramaj v. Gonzales, 466 F.3d 520, 532 (6th
Cir. 2006). The regulations define torture as the intentional infliction of pain or suffering “by or
at the instigation of or with the consent or acquiescence of a public official or other person acting
in an official capacity.” 8 C.F.R. § 208.18(a)(1). “‘An applicant for relief need not show that the
harm [he] faces is based on one of the five grounds … required under the INA, but rather must
establish a particularized threat of torture.’” Bi Xia Qu v. Holder, 618 F.3d 602, 610 (6th Cir.
2010) (emphasis in original) (quoting Cruz-Samayoa v. Holder, 607 F.3d 1145, 1155 (6th Cir.
2010)).
The BIA evaluated the four articles Rodriguez-Tovar proffered as the basis for his motion
to reopen because of changed country conditions and ruled that the articles did not support a
likelihood that he “would be tortured in Mexico with the acquiescence of the Mexican
government.” A.R. 7. Rodriguez-Tovar first objects to the BIA’s use of the word “government”
instead of “public official,” as used in the regulations. 8 C.F.R. § 1208.18(a)(1). We have never
held that use of the phrase “public official” rather than the synonym “government” is required,
and we decline to do so here. See, e.g., Palokaj v. Holder, 510 F. App’x 464, 469 (6th Cir. 2013)
(“Petitioner has not asserted any direct conduct by the Albanian government with respect to his

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allegations of torture, nor has he shown any acquiescence or complicity in torture by the
government, because he never even reported the alleged incidents to the authorities.”); PerezMorales v. Holder, 448 F. App’x 585, 589 (6th Cir. 2011) (“He believes that the Guatemalan
government is corrupt and unable or unwilling to protect him and others from gang violence.
Thus[, he believes] … his return … will create a strong likelihood that gang members will torture
him as a result of governmental acquiescence.”); Aoraha v. Gonzales, 209 F. App’x 473, 477
(6th Cir. 2006) (“And because the Aorahas have failed to establish that Iraq’s interim
government instigated, consented to or acquiesced in mistreatment of Christians, the BIA’s
denial of the Convention Against Torture claim was appropriate as well.”).
There is substantial evidence to support the BIA’s determination that Rodriguez-Tovar
has not shown he will likely be tortured if he returns to Mexico. The only evidence RodriguezTovar offered in his motion to reopen were four articles describing general gang violence in
Mexico, some of which is directed towards returning deportees. The BIA ruled that such
evidence failed to show that he would likely be tortured with the acquiescence of Mexican public
officials if removed to Mexico. This determination is not “arbitrary, irrational, or contrary to
law.” Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004). In fact, we agree that this
evidence is insufficient to show that Rodriguez-Tovar is more likely than not to be tortured if he
returns to Mexico. Thus, the BIA did not abuse its discretion when it found that the articles that
Rodriguez-Tovar proffered with his motion to reopen did not establish his eligibility for CAT
protection.
D
Finally, Rodriguez-Tovar asks this court to hold his petition in abeyance or refer it to
mediation until his Deferred Action for Childhood Arrivals application is processed. We note

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that he did not raise this request until his reply brief. “We will generally not hear issues raised
for the first time in a reply brief.” United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001);
see also United States v. Jerkins, 871 F.2d 598, 602 n.3 (6th Cir. 1989). Nonetheless, the record
shows that Rodriguez-Tovar last reentered the United States on June 29, 2007. Continuous
residence since June 15, 2007 is required to be considered for DACA.

Consideration of

Deferred Action for Child Arrivals (DACA), U.S. CITIZENSHIP & IMMIGR. SERVICES,
http://www.ucis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

(last

visited Oct. 8, 2015). Rodriguez-Tovar does not meet this requirement and therefore is not likely
to prevail on his DACA application.

Accordingly, we decline to hold Rodriguez-Tovar’s

petition in abeyance. We also decline to refer this case to mediation.
III
For the foregoing reasons, Rodriguez-Tovar’s petition for review is DENIED.
requests that the case be held in abeyance or referred to mediation are also DENIED.

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His