Graciano Rodriguez-Tovar v. Loretta E. Lynch

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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

Case No. 14-4248 FILED
Oct 09, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT

GRACIANO RODRIGUEZ-TOVAR, )
)
Petitioner, )
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
LORETTA E. LYNCH, Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)

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.

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 Rodriguez-

Tovar’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.

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.

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.

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.

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.”); Perez-

Morales 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 Rodriguez-

Tovar 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.

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. His

requests that the case be held in abeyance or referred to mediation are also DENIED.

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