Esteban-Garcia v. Garland

94 F.4th 186

Sara ESTEBAN-GARCIA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1701

United States Court of Appeals, First Circuit

February 29, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Kristian Robson Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioner.

Nancy Pham, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Corey L. Farrell, Senior Litigation Counsel, Office of Immigration Litigation, and Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for respondent.

Before Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

LYNCH, Circuit Judge.

Sara Esteban-Garcia petitions for review of a decision of the Board of Immigration Appeals dated July 24, 2023, which adopted and affirmed an immigration judge's order denying her application for asylum and claim for withholding of removal under sections 208 and 241(b)(3)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b)(3)(A). The IJ determined that Esteban-Garcia had not met her burden to show that she had suffered from past persecution for a number of reasons, including that she had failed to establish a nexus between the harm that she testified that she had suffered and a statutorily protected ground. As to future persecution, the IJ also found she had failed to meet her burden to establish a well-founded fear of future persecution on account of a protected ground.

Because there was no error of law in the determination that Esteban-Garcia had failed to meet her burden to show a nexus to a protected ground and the record does not compel a contrary conclusion, we deny the petition for review.

I.

A.

Esteban-Garcia is a twenty-nine-year-old native and citizen of Guatemala. She is an indigenous woman of Mam descent who grew up in a small village of indigenous people called Tuichán in Guatemala. She entered the United States without inspection on or about June 1, 2014, at or near Hidalgo, Texas, and was detained shortly thereafter. On June 19, 2014, an asylum officer conducted a credible-fear interview of Esteban-Garcia and determined she had established a credible fear of persecution.

On July 3, 2014, the Department of Homeland Security initiated removal proceedings against Esteban-Garcia, filing a Notice to Appear in immigration court charging her with removability pursuant to section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as a noncitizen not in possession of a valid entry document at the time of her application for admission. On July 21, 2014, Esteban-Garcia, proceeding pro se, admitted the factual allegations contained in the Notice to Appear and indicated her intent to file an application for asylum. She later filed a written pleading through counsel admitting the factual allegations and conceding the charge of removability. She filed an application for asylum on August 1, 2014. On December 10, 2018, represented by counsel, she testified at a hearing before the IJ and submitted written declarations from herself, her brother, and two cousins in support of her asylum application.

In her credible-fear interview, declaration, and testimony before the IJ, Esteban-Garcia stated that she had left Guatemala and feared returning there because a man named Tito¹, with whom she had been romantically involved, told her that he wanted her to become a prostitute or sell drugs to earn money for him and his friends. She met and began dating Tito, who is also indigenous, in April 2014, when she was nineteen years old. Approximately one month later, Tito asked her to meet him in a park in San Marcos -- a town that Esteban-Garcia frequented to see Tito and shop at the local market -- so he could introduce her to his friends. When she arrived, he was with several other men and stated that he wanted her to prostitute herself or sell drugs. He told her that he would become romantically involved with women and then "put[ ] them in contact with these men" and that "this is how we manipulate so that young girls will fall." The men stated that "get[ting] women to do this" was "their business and job." The men said that they wanted her to do this because "they wanted to make money off of women who were able to sell their bodies." She testified that she believed the reason Tito wanted to force her to become a prostitute or drug seller was so that he could "have a better life" from the money she would earn.

When Esteban-Garcia refused, Tito stated, "I have two other male friends [here] and you cannot escape now." The men threatened to kill her if she did not comply and insulted her with "a mountain of bad names," including "you're going to be a slut." Tito also grabbed her arm hard enough to leave bruises, pulled her hair, groped her breast, and "touch[ed] [her] body all over." She stated she was "terrified" and that she was "not physically" harmed during this incident. After she told Tito she would report him to the police, he threatened to kill her and her family. She then told him she would do what he asked, at which point he let her go and she returned home. She stated at her credible-fear interview that this was the only instance in which she was threatened to be forced into prostitution.

Immediately after this encounter, Esteban-Garcia began preparing to flee Guatemala. Although she had blocked his phone number after the incident, Tito called her the next day from an unknown number to ask if she was ready to begin working for him and that he was "going to come and get [her]." After this call, she destroyed her phone and contacted her brother, who lives in the United States. Her brother told her he could help her leave Guatemala and, soon after, sent her money and arranged her travel to the United States. She left Guatemala within days of this incident. Esteban-Garcia testified that her cousin informed her that men in Guatemala then continued to ask about her; the latest such inquiry occurred one month before her December 2018 immigration hearing. Her cousin's declaration stated that "they have been asking for [Esteban-Garcia] in the streets [and] markets."

Upon questioning at her immigration hearing, Esteban-Garcia testified that she did not report this incident to the police because she was afraid of Tito's threats and because she "d[id]n't know" if the police would help her because "they don't do justice." She stated in her credible-fear interview that "the [police] will kill people" and in her declaration that she "cannot count on the military or the police in [her] country." She stated in her declaration that there is no police station in her village and that Tito told her "if the police arrest him, he has connections on the outside that can harm [her]."

Esteban-Garcia testified that she fears that if she returned to Guatemala, Tito "would look for [her]" and possibly "grab [her] by force or maybe he would torture [her]." She stated in her credible-fear interview that she fears they will force her to become a prostitute and that "if I don't want to prostitute myself, they will kill me." She does not know of any other girls or women who were forced to become prostitutes, but she has heard rumors that people "have started to manipulate girls into doing this" and stated, "I think they have grabbed more around."

Before the IJ, Esteban-Garcia submitted evidence that she was diagnosed with, and has received treatment for, major depressive disorder and post-traumatic stress disorder ("PTSD") while in the United States since at least February 2017, several years after the incident with Tito.² In support of her asylum application, she submitted a letter from her therapist regarding her mental health diagnoses and general evidence concerning PTSD. She also submitted general country conditions evidence regarding indigenous persons, sex trafficking, and violence against women in Guatemala.

B.

In a written decision on December 11, 2018, the IJ denied Esteban-Garcia's application for asylum and claims for withholding of removal and protection under the Convention Against Torture ("CAT") and ordered that she be removed from the United States to Guatemala. The IJ found that Esteban-Garcia was a credible witness and that she had timely filed her asylum application. The IJ also found that Esteban-Garcia had failed to meet her burden to show "past persecution or a well-founded fear of future persecution on account of a protected ground" because (1) Esteban-Garcia's experience in Guatemala did not rise to the level of persecution; (2) she had not established that the harm she experienced was "on account of a protected ground"; (3) she had not established that the harm "was the direct result of government action, government-supported action, or the government's unwillingness or inability to control private conduct"; and (4) she had "failed to establish that her life or freedom would be threatened in the future in Guatemala on account of a protected ground." Because Esteban-Garcia failed to meet her burden of proof for asylum, the IJ determined that she had also failed to demonstrate eligibility for withholding of removal and CAT protection.

On January 10, 2019, Esteban-Garcia timely appealed the IJ's decision to the BIA. On July 24, 2023, the BIA adopted the IJ's findings of fact and affirmed its legal conclusions, dismissing Esteban-Garcia's appeal. The BIA noted that she had waived her challenge to the denial of CAT protection because she had "not meaningfully challenge[d] [the IJ's CAT] determination on appeal."³ The BIA also addressed additional issues that Esteban-Garcia had raised on appeal, holding that the IJ did not err by not addressing the cognizable nature of Esteban-Garcia's proposed particular social groups because her claim failed on other grounds and affirming the IJ's determination that Esteban-Garcia "did not submit sufficient...