Heriberta Plancarte Martinez v. MERRICK B. GARLAND, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 6, 2024*
Decided August 8, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-3077
HERIBERTA PLANCARTE
MARTINEZ, et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A206-674-773, A206-674-774, &
A206-674-775
O R D E R
Heriberta Plancarte Martinez and her two minor children, all Mexican citizens,
petition for review of the denial of their motion to reopen removal proceedings based
on “new evidence” calling into question a factual finding that underpinned the
immigration judge’s denial of their asylum application. The immigration judge (“IJ”)
denied the motion to reopen, concluding that Plancarte Martinez failed to show that her
* The parties agreed to submit this case for decision on the briefs. F ED. R. A PP . P.
34(f). We granted petitioners’ motion to waive oral argument.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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evidence was unavailable during the removal proceedings, and the Board of
Immigration Appeals affirmed. Because the record supports the conclusions of the IJ
and Board, we deny the petition.
I
In June 2014, Plancarte Martinez and her children, without the requisite
authorization, entered the United States via the Otay Mesa Port of Entry in San Diego,
California. The Department of Homeland Security initiated removal proceedings.
Plancarte Martinez and her family conceded removability but sought asylum and
withholding of removal based on membership in a particular social group, as well as
protection under the Convention Against Torture.
Plancarte Martinez’s application for asylum, as relevant here, expressed her fear
of abuse from her husband Jonathan, who, she alleged, had sexually assaulted her,
threatened her “almost every day for the years [they] were together,” and tried to
control “every aspect” of her life. Plancarte Martinez added that Jonathan’s efforts to
control her had been aided by his brother William.
In advance of a scheduled merits hearing before an immigration judge, Plancarte
Martinez filed a brief and affidavit reiterating her claims that Jonathan had abused her.
She stated that she feared returning to Mexico because Jonathan—who by this time also
had made his way to the United States—threatened to follow her, and she believed that
“he or some of his friends would hurt or kill [her] or [her] family.”
The merits hearing took place in September 2020, and Plancarte Martinez
testified about Jonathan’s “jealous” and “controlling” nature. She conceded that she had
not been harassed by Jonathan or William during a six-month period in which she had
relocated to the neighboring state of Michoacán but stated that Jonathan—once they
were in the United States—pressured her to move in with him again. They lived
together for less than a month before she left because of his continued attempts to
control her. She added that she believed Jonathan had been jailed in Minnesota on rape
charges.
The IJ denied Plancarte Martinez’s application. The IJ assumed without deciding
that Plancarte Martinez could establish past persecution on account of membership in a
particular social group (Mexican women who could not leave their marital
relationships) but went on to explain that the government had rebutted the
presumption that she would face future persecution if she returned to Mexico. Noting

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her testimony that Jonathan was now in prison in the United States, the IJ concluded
that she failed to show that she could not reasonably relocate within Mexico to stay safe.
Three months later, Plancarte Martinez moved to reopen proceedings based on
purportedly new evidence showing that Jonathan was no longer in the United States
and had returned to Mexico. She supplemented her motion with an affidavit describing
her recent discovery that Jonathan had been removed to Mexico. She recounted that her
elder daughter, who—because of the family’s strife—always wanted to conceal her
relationship with her father, had showed her text messages exchanged with Jonathan’s
mother in early 2019, stating that Jonathan was “in ICE, waiting for deportation.”
Plancarte Martinez also described receiving Facebook messages from a woman in
Mexico who confided that she had been in a relationship with Jonathan, that he had
sexually abused her, and that he was “spying” on Plancarte Martinez through
Facebook. In the motion, Plancarte Martinez argued that the information concerning
Jonathan’s whereabouts was not available at the time of the hearing: (1) the daughter’s
messages were unavailable because the daughter “always wanted to keep her
relationship with her father secret” and “was troubled by being caught between” her
parents; and (2) the Facebook messages were unavailable because she had blocked the
sender upon receiving them and hadn’t thought to further investigate them until
learning of the daughter’s text messages.
The IJ denied the motion to reopen proceedings, concluding that Plancarte
Martinez had not met her burden of demonstrating that the messages were
“unavailable, undiscoverable, and unpresentable” for purposes of the merits hearing.
The judge explained that the matter of Jonathan’s whereabouts had been discussed at
the merits hearing, and Plancarte Martinez had failed to pursue available “avenues”
beforehand to communicate with her daughter and to track down the Facebook
messages received earlier in 2020.
Plancarte Martinez appealed to the Board, arguing that the IJ had failed to
consider her argument that the daughter’s messages were unavailable because the
daughter was too “traumatized” by the conflict between Plancarte Martinez and
Jonathan to reveal them. The Board upheld the IJ’s decision. The Board explained, first,
that Plancarte Martinez’s daughter—as a respondent, herself, in the removal
proceedings—bore some responsibility “for ensuring that the evidence presented in
support of the applications for relief [was] accurate and complete.” And Plancarte
Martinez offered no evidence supporting the notion that her daughter had been too
traumatized to disclose the information earlier. As for the Facebook messages, the

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Board explained that Plancarte Martinez’s decision to block the sender rather than
investigate the messages did not render them unavailable.
II
Plancarte Martinez petitioned this court for review of the Board’s order denying
her motion to reopen removal proceedings. Our scope of review is, thus, limited to that
order. See Melesio-Rodriguez v. Sessions, 884 F.3d 675, 678 (7th Cir. 2018). Where, as here,
the Board affirms and supplements the IJ’s decision, we review the IJ’s decision together
with the Board’s additional reasoning. See Cojocari v. Sessions, 863 F.3d 616, 621 (7th Cir.
2017). We review the decision to deny a motion to reopen removal proceedings for an
abuse of discretion. I.N.S. v. Abudu, 485 U.S. 94, 107–08 (1988). We review legal issues—
misinterpretations of law, application of the wrong legal standard, and failure to
exercise discretion at all—de novo. Aparicio-Brito v. Lynch, 824 F.3d 674, 681, 686
(7th Cir. 2016).
Plancarte Martinez’s brief generally repeats the arguments she raised before the
IJ and Board. She concedes that her purportedly new evidence existed at the time of her
merits hearing but maintains that the Board wrongly rejected her argument that the
daughter’s age and “trauma” rendered the evidence “unavailable” for purposes of the
merits hearing. Plancarte Martinez relies on two seemingly adverse cases: Krougliak v.
I.N.S., 289 F.3d 457 (7th Cir. 2002) (purportedly new evidence was not unavailable,
because petitioner did not show that the evidence could not have been sent to him
before hearing) and Malik v. Holder, 546 F. App’x 590 (7th Cir. 2013) (unpublished)
(affidavit of petitioner’s ex-wife was not unavailable, because petitioner did not show
that he had attempted to contact ex-wife before hearing).
Plancarte Martinez’s reliance on these cases is unpersuasive. For purposes of a
merits hearing, evidence is considered unavailable if it “could not by the exercise of due
diligence have been discovered earlier.” Krougliak, 289 F.3d at 460 (quoting Matter of
Coelho, 20 I. & N. Dec. 464, 472 n.4 (BIA 1992)) (cleaned up). Here, both the IJ and Board
examined Plancarte Martinez’s proffered evidence and concluded that she had failed to
show it could not have been discovered through due diligence. That conclusion was not
an abuse of discretion: Although Plancarte Martinez attested that her daughter kept her
relationship with Jonathan secret, nothing in the record demonstrates that the daughter
was traumatized at all—much less that she was too traumatized to share, in the exercise
of due diligence, evidence bearing on the merits of her family’s asylum application.
And nothing in the record suggests that Plancarte Martinez exercised any diligence to
discover Jonathan’s whereabouts.

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Plancarte Martinez next contends that the IJ and Board legally erred when they
“completely failed” to consider her argument that her daughter’s trauma rendered the
text-message evidence unavailable. But her premise is demonstrably false. The Board
directly addressed and refuted the argument:
The respondents have not presented any evidence supporting their claim
that the daughter was too ‘traumatized’ by the relationship between her
parents to tell her mother the true location of her father. If the daughter
had information reflecting that her father was in Mexico, and not serving a
prison sentence in the United States, it was incumbent on her to present
that information in relation to the lead respondent’s applications for relief.
And Plancarte Martinez does not identify any abuse of discretion in the Board’s
analysis.
For these reasons, we DENY the petition for review.

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