Sebastian-Sebastian v. Garland

87 F.4th 838

Ana Sanchez SEBASTIAN-SEBASTIAN; Magdalena Sebastian-Sebastian, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-3059

United States Court of Appeals, Sixth Circuit

Decided and Filed: December 8, 2023

On Petition for Review of an Order of the Board of Immigration Appeals. Nos. A XXX XX4 119; A XXX XX4 121.

ON BRIEF: Ashley Robinson, THE LAW OFFICES OF JAMIE B. NAINI, Memphis, Tennessee, for Petitioners. Christin M. Whitacre, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: MOORE, McKEAGUE, and KETHLEDGE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner Ana Sanchez Sebastian-Sebastian petitions for review of the Board of Immigration Appeals' denial of her application for asylum and withholding of removal under the Immigration and Nationality Act as well as protection under the Convention Against Torture. She also challenges the Board's decision under the Due Process Clause of the Fifth Amendment. In its denial of asylum and withholding of removal under the INA, the Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board's conclusions were not supported by substantial evidence on the record as a whole. Because the Board's failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian's CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian's petition for review in part, DENY in part, VACATE the Board's denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.

I. BACKGROUND

A. Procedural History

Petitioner Ana Sanchez Sebastian-Sebastian is a native and citizen of Guatemala. A.R. at 346 (Sebastian-Sebastian Asylum App. at 1). Rider Petitioner Magdalena Sebastian-Sebastian, Ana Sanchez Sebastian-Sebastian's daughter, is also a native and citizen of Guatemala. A.R. at 347 (Sebastian-Sebastian Asylum App. at 2). Petitioners entered the United States on or about April 20, 2016, and were not admitted or paroled by an immigration officer. Id. On April 13, 2017, Sebastian-Sebastian¹ filed an application for asylum and withholding of removal under the INA as well as protection under the Convention Against Torture and included Magdalena on her application for relief as the unmarried child of an asylum applicant. A.R. at 347, 354 (Sebastian-Sebastian Asylum App. at 2, 9). Magdalena has not filed her own application for relief and seeks derivative asylum only. A.R. at 230-31 (Hr'g Tr. at 51-52).

The Department of Homeland Security initiated removal proceedings against Sebastian-Sebastian and Magdalena Sebastian-Sebastian by serving them both with Notices to Appear. A.R. at 508 (Sebastian-Sebastian Not. to Appear); A.R. at 533 (Magdalena Sebastian-Sebastian Not. to Appear). On February 16, 2018, Sebastian-Sebastian's hearing commenced. A.R. at 229 (Hr'g Tr.). At the hearing, Immigration Judge Rebecca L. Holt heard testimony from Sebastian-Sebastian, Magdalena, and Sebastian-Sebastian's cousin, Elizabeth. Id. In front of Immigration Judge Holt, Sebastian-Sebastian claimed eligibility for asylum and withholding of removal based on her membership in four particular social groups: (1) "Guatemalan Chuj Women in domestic relationships who are unable to leave," (2) "Guatemalan Chuj Women who are viewed as property by virtue of their positions within a domestic relationship," (3) "nuclear family of [Sebastian-Sebastian's late husband]," and (4) "Guatemalan Women perceived as . . . witches." A.R. at 298-99 (Hr'g Tr. at 119-20).

On February 21, 2018, Immigration Judge Holt denied Sebastian-Sebastian's application for asylum, withholding of removal, and CAT protection. A.R. at 149-74 (IJ Dec.). Sebastian-Sebastian appealed. A.R. at 134 (Not. of Appeal). On January 6, 2023, the Board of Immigration Appeals ("Board" or "BIA") dismissed her appeal. A.R. at 3 (BIA Dec. at 1). Sebastian-Sebastian now appeals the Board's dismissal of her application for asylum, withholding of removal, and CAT protection. Pet'r Br. at 2. She also challenges the Board's decision under the Due Process Clause of the Fifth Amendment. Id. at 56.

On April 19, 2023, Sebastian-Sebastian filed an Emergency Motion for Stay of Removal Pending Decision on Appeal in this court. (Pet'r Emergency Mot.). The motion indicated that Sebastian-Sebastian had been detained by the United States Immigration and Customs Enforcement and was facing removal. Id. at 2. The United States Attorney General opposed the stay of removal. (Resp. Opp. to Pet'r Emergency Mot.). On April 28, 2023, a panel of this court denied Sebastian-Sebastian's motion to stay removal. Sebastian-Sebastian v. Garland, No. 23-3059 (6th Cir. Apr. 28, 2023) (order).

B. Factual Background

Ana Sebastian-Sebastian was born on March 25, 1981 in San Sebastian Coatan, Guatemala. A.R. at 346 (Sebastian-Sebastian Asylum App. at 1). In 1998, at seventeen years old, Sebastian-Sebastian married Mateo Sebastian Martin and moved into his parents' house in San Jose, Guatemala. A.R. at 240-41 (Hr'g Tr. at 61-62). Approximately one year later, in 1999, their daughter Magdalena Sebastian-Sebastian was born. A.R. at 239, 242 (Hr'g Tr. at 60, 63).

Following their marriage, Sebastian-Sebastian and her husband lived with her husband's parents due to cultural customs. The couple was "not to decide where [they were] to go to live," but instead "had to go and live with his parents," because "[t]hat's the way it is." A.R. at 241 (Hr'g Tr. at 62).

Shortly into their marriage, Sebastian-Sebastian's husband began abusing her. He would hit her "every week, once a week." A.R. at 243 (Hr'g Tr. at 64). Sebastian-Sebastian's husband hit her with his belt or a stick and would sometimes whip her while she was naked. A.R. at 244-45 (Hr'g Tr. at 65-66). He continued to beat her while she was pregnant with their daughter. Id. Sebastian-Sebastian would sometimes have cuts or bruises from his beatings. Id. Though she may have required medical care from the beatings, her husband "didn't care," and would tell her that "if you die, you die, I don't care." A.R. at 275 (Hr'g Tr. at 96). Sebastian-Sebastian's husband also regularly called her an animal and compared her to a horse. A.R. at 243 (Hr'g Tr. at 64).

In addition to physically and psychologically abusing her, Sebastian-Sebastian's husband also sexually abused her. A.R. at 246-47 (Hr'g Tr. at 67-68). Beginning in 2007, Sebastian-Sebastian's husband raped her approximately five times. Id. Though Sebastian-Sebastian never contracted any diseases as a result of these rapes, she greatly feared "what type of illness [she] could get from him," because "when he goes out in the street and he will find any woman and be with any woman." A.R. at 247 (Hr'g Tr. at 68).

Sebastian-Sebastian's husband also abused their daughter. Starting when Magdalena was six years old, "he would take out his belt and he would start to hit her with the belt." A.R. at 248-49 (Hr'g Tr. at 69-70). On several occasions, Magdalena's nose would bleed after he hit her in the face with his belt. Id. He would also "call her names" and tell Magdalena that she was "not worth anything" and she was "the same as [her] mother . . . like an animal." A.R. at 248 (Hr'g Tr. at 69).

Sebastian-Sebastian's in-laws were present and took part in both her and her daughter's abuse. A.R. at 249 (Hr'g Tr. at 70). Sebastian-Sebastian's husband "usually" hit her because "his mother . . . would tell him [to]." A.R. at 245-46 (Hr'g Tr. at 66-67). Though he "sometimes" hit her because he wanted to, it was most often at his mother's urging. Id. In urging him to hit her, Sebastian-Sebastian's mother-in-law would say that Sebastian-Sebastian should leave and "go back" to her own village. A.R. at 246 (Hr'g Tr. at 67).

Despite this abuse, cultural expectations meant that Sebastian-Sebastian could not leave her domestic relationship; she "had to stay there and just . . . keep . . . taking the beatings." Id. This was typical in Sebastian-Sebastian's culture; she explained that many women are "treated that way" but nonetheless remain with their husband's families. A.R. at 262 (Hr'g Tr. at 83). In 2007, the same year that Sebastian-Sebastian's husband began raping her, Sebastian-Sebastian's in-laws began accusing her of being a witch. A.R. at 273-74 (Hr'g Tr. at 94-95).

On December 12, 2010, Sebastian-Sebastian's husband died. A.R. at 357 (Sebastian-Sebastian Asylum App. at 11). Following his death, because cultural customs allegedly required it, Sebastian-Sebastian and her daughter continued living with her in-laws.² Id.; see also A.R. at 303 (Hr'g Tr. at 124) (Test. of Elizabeth Sebastian-Sebastian) ("[O]ur culture is that if your husband dies that you have to stay and live there."). Her in-laws threatened to hit her and limited her access to drinking water. A.R. at 252 (Hr'g Tr. at 73); see also A.R. at 287 (Hr'g Tr. at 108) (Test. of Magdalena) ("[T]here's running water nearby where we get water but the rest of the people would get mad that we go get water there because they said that we didn't belong there and that we didn't have the right to . . . get water from there."); A.R. at 357 (Sebastian-Sebastian Asylum App. at 11) ("[My mother-in-law] told me that Magdalena and I could no longer use the purified water pump, because it was her and her sons' water."). Sebastian-Sebastian's in-laws did not physically beat her following her husband's death, but "sometimes they wanted to," and Sebastian-Sebastian would have to "hide from them." A.R. at 273 (Hr'g Tr. at 94).

At one point, Sebastian-Sebastian's mother-in-law took...