Yolanda Sanchez-Ochoa, et al v. Loretta Lynch

Filing

OPINION filed: The petition for review is DENIED; decision not for publication. Martha Craig Daughtrey, Circuit Judge; Raymond M. Kethledge (AUTHORING), Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

Case: 16-4041

Document: 16-2

Filed: 05/24/2017

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0292n.06
No. 16-4041
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
YOLANDA SANCHEZ-OCHOA, et al.,
Petitioners,
v.
JEFFERSON B. SESSIONS, III, Attorney General,
Respondent.

)
)
)
)
)
)
)
)
)

FILED
May 24, 2017
DEBORAH S. HUNT, Clerk

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

Before: DAUGHTREY, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. Yolanda Sanchez-Ochoa, Jose Perez-Murillo, and their
son Hector Perez-Sanchez—all Mexican citizens—petition for review of a final order of removal
issued by the Board of Immigration Appeals. Specifically, they challenge the Board’s refusal to
grant them asylum, withholding of removal, and protection under the Convention Against
Torture. We deny the petition for review.
In 2012, the petitioners entered the United States using border-crossing cards, which
allow Mexican citizens to visit the United States for a few days at a time. The family did not
plan on returning home to Juarez, Mexico. Instead, they settled in Ohio, where Jose began
working as a waiter. A few months later, he was caught selling alcohol to an underage customer
and pleaded guilty to disorderly conduct.
deportation proceedings against him.

Immigrations and Customs Enforcement began

Yolanda thereafter filed an application for asylum,

withholding of removal, and protection under the Convention Against Torture for herself, Jose,
and their son.

Case: 16-4041

Document: 16-2

Filed: 05/24/2017

Page: 2

No. 16-4041, Sanchez-Ochoa, et al. v. Sessions
An immigration judge held a hearing on that application. Jose testified that he was
worried about returning to Mexico because he believed that a drug cartel was targeting him for
extortion. According to Jose, before the family left Juarez, unidentified men had threatened to
kill him if he did not hand over his truck and 20,000 pesos. Jose said that the threats had
continued even after the family fled to the United States: about a year after they left, one of their
Juarez neighbors told Jose that men in a black truck had come looking for the family. Jose took
these threats seriously, because he knew that other neighbors had been beaten or murdered after
refusing to comply with extortionists’ demands. He believed that a drug cartel was orchestrating
all the extortion attempts, threats, and attacks. The immigration judge found that Jose was
credible, but denied the family’s application. The Board of Immigration Appeals affirmed.
Thereafter, the petitioners filed this petition for review.
We review the Board’s factual findings for substantial evidence, and its legal conclusions
de novo. Marikasi v. Lynch, 840 F.3d 281, 286 (6th Cir. 2016). To prove eligibility for asylum,
applicants must show that they are “refugees” under the Immigration and Nationality Act. Id. at
287; see 8 U.S.C. § 1158(b)(1)(A). The definition of refugee includes persons who have a “wellfounded fear” that, if they returned to their home country, they would be persecuted “on account
of . . . [their] membership in a particular social group[.]” 8 U.S.C. § 1101(a)(42). To qualify as
a particular social group, the alleged group must be, among other things, distinct enough “that
the community would recognize it as a discrete class of persons.” Menijar v. Lynch, 812 F.3d
491, 498 (6th Cir. 2015).
Jose and his family argue that, if they returned to Mexico, they would be persecuted
because they belong to a particular social group—one that, they say, encompasses all persons “in
Mexico who are not associated with either a cartel or the Mexican government.” But that group

-2-

Case: 16-4041

Document: 16-2

Filed: 05/24/2017

Page: 3

No. 16-4041, Sanchez-Ochoa, et al. v. Sessions
is not distinct enough to qualify as a particular social group under 8 U.S.C. § 1101(a)(42).
In Umana-Ramos v. Holder, an asylum applicant argued that he belonged to a group of “young
Salvadorans who [had] been threatened because they refused to join” a specific gang. See
724 F.3d 667, 673-74 (6th Cir. 2013). The court held that the group was not particular enough,
“because it could include all Salvadoran youth who are not members” of the gang. Id. Here, the
petitioners’ alleged group appears even broader; it includes all people in Mexico who are neither
cartel members nor government employees. Although the petitioners might have well-founded
fears about returning to Mexico, we may not grant them asylum on the basis of a “country-wide
risk of victimization” through extortion. Lopez-Castro v. Holder, 577 F.3d 49, 54-55 (1st Cir.
2009); cf. Koliada v. I.N.S., 259 F.3d 482, 488 (6th Cir. 2001). Thus, the petitioners’ alleged
social group “does not have sufficient particularity” to satisfy the Act, and their asylum claim
fails. Umana-Ramos, 724 F.3d at 674. The petitioners’ claim for withholding of removal fails
for the same reason. Id.; see 8 U.S.C. § 1231(b)(3)(A).
The petitioners also argue that they are entitled to protection under the Convention
Against Torture. To succeed on this claim, they must show that, “more likely than not,” they
would be tortured if removed to Mexico. Menijar, 812 F.3d at 501 (citation omitted). Torture
includes severe pain and suffering inflicted by government officials, or inflicted by other persons
with the encouragement, consent, or acquiescence of government officials. Id.
The Board rejected the petitioners’ claim under the Convention because they had not
proven that the Mexican government would acquiesce in (or be willfully blind to) a private
person torturing the petitioners. The Board’s conclusion was based on substantial evidence.
Jose admitted that he never called the police to seek their help. And the petitioners presented no
proof that the police were involved in the threats against them or in the attacks on their

-3-

Case: 16-4041

Document: 16-2

Filed: 05/24/2017

Page: 4

No. 16-4041, Sanchez-Ochoa, et al. v. Sessions
neighbors. Instead, the petitioners rely on Jose’s belief that the Juarez police are “the same as
the cartels” and thus would not protect him. The petitioners also emphasize that the United
States Department of State, in a countrywide report on human rights abuses in Mexico,
concluded that the Mexican police and military had been involved in “serious abuses, including
unlawful killings, physical abuse, torture, and disappearances.” But neither Jose’s belief nor a
general countrywide report on police abuses proves that the Juarez police—or any other police
department in Mexico—would be more likely than not to acquiesce in cartel members torturing
the petitioners. See Cruz-Samayoa v. Holder, 607 F.3d 1145, 1155 (6th Cir. 2010). Thus, the
Board reasonably concluded that the petitioners are not entitled to protection under the
Convention Against Torture.
In sum, we do not discount the dangers this family might face upon their return to
Mexico. But those dangers are faced by many people in Mexico; and in any event we have no
lawful basis to set aside the decision of Board. The petition for review is therefore denied.

-4-