Denicia Roberts v. Mark Berry

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3349
___________________________
Eva Maria Becerril-Sanchez
lllllllllllllllllllllPetitioner
v.
Pamela Bondi,1 Attorney General of the United States
lllllllllllllllllllllRespondent
___________________________
No. 23-3350
___________________________
Yamile Garduno-Becerril
lllllllllllllllllllllPetitioner
v.
Pamela Bondi, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
1Attorney General Bondi is automatically substituted for her predecessor under
Federal Rule of Appellate Procedure 43(c)(2).

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Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: September 24, 2024
Filed: February 6, 2025
[Published]
____________
Before SMITH, ERICKSON, and STRAS, Circuit Judges.
____________
PER CURIAM.
Eva Becerril-Sanchez (Becerril) and her daughter Yamile Garduno-Becerril
(Garduno) (collectively, “petitioners”) seek review of the Board of Immigration
Appeals’s (Board) dismissal of their appeals from the immigration judge’s (IJ)
decisions denying their respective applications for withholding of removal and
protection under the Convention Against Torture (CAT), as well as Garduno’s
application for asylum. Additionally, they challenge the Board’s denial of their
motion to reopen based on changed country conditions. For the reasons discussed
below, we deny the consolidated petition for review.
I. Background
The petitioners are natives and citizens of Mexico who entered the United
States near Eagle Pass, Texas, in July 2016. The Department of Homeland Security
(DHS) determined that it had previously removed Becerril and issued her a Notice of
Intent to Reinstate Prior Removal Order. An immigration officer conducted a
reasonable-fear interview and found Becerril to possess a reasonable fear of
persecution or torture in Mexico; the officer referred Becerril to the IJ for
withholding-only proceedings. Meanwhile, DHS issued Becerril’s daughter, Garduno,
with a Notice to Appear, charging her with removability as a noncitizen present in the
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United States who has not been admitted or paroled. See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Garduno admitted the allegations and conceded the charge of
removability in the notice.
The petitioners applied for withholding of removal and CAT protection.
Garduno also applied for asylum.2 The petitioners testified in support of their
applications at a merits hearing before the IJ. Becerril testified that she originally left
her hometown of Santa Cruz Tepexpan in the Mexican state of Mexico in 2005 to
escape mistreatment by her cousin Juan Pablo, an alleged drug trafficker. According
to Becerril, Juan Pablo was “a member of the cartels in Mexico” or “the boss of the
cartels.” A.R. at 332–33, 334.3 Juan Pablo lived approximately a half mile away from
Becerril. She testified that one night in 2002, Juan Pablo came to her house while
being chased by rivals. He asked Becerril if he could stay at her home. Becerril, who
was seven months pregnant with Garduno, refused his request. She explained to Juan
Pablo that her mother and nephews were in the house, and she feared his rivals would
kill her family if she allowed him inside. According to Becerril, when she refused to
let Juan Pablo inside, he “beat [her], and before beating [her], he threatened [her]
life.” Id. at 333. Juan Pablo hit Becerril “four or five times.” Id. at 344. He hit her in
the face and body. He “pushed [her], and then, while [she] was down, he . . . kicked
[her] about once or twice.” Id. As a result of the attack, Becerril sustained bruises and
scarring to her face. Becerril testified that she did not seek medical treatment because
2“While reinstatement of a prior order of removal prevents an alien from
seeking ‘relief,’ such as asylum, see 8 U.S.C. § 1231(a)(5), withholding of removal
and protection under CAT are considered ‘protection,’ not relief, and are thus not
barred.” Mendez-Gomez v. Barr, 928 F.3d 728, 733 n.2 (8th Cir. 2019) (citing
Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485
(Feb. 19, 1999) (background information to interim rule)). Accordingly, Becerril is
ineligible for asylum but eligible to apply for withholding of removal and CAT
protection.
3Becerril did not know to which cartel Juan Pablo belonged.
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her town did not have any hospital or medical center, though nearby cities did.
Following the attack, Juan Pablo ran into the cornfields.
Becerril recounts that the next day, she went with her parents to report the
incident to the police; the police refused to make a report because they feared Juan
Pablo. Eight days after the attack, the police visited Becerril’s home and advised her
not to “file a report or talk about the case because” she would “have many more
problems” if she did. Id. at 336. Becerril believed that Juan Pablo’s relationship with
the police in her town was “[v]ery close.” Id. at 339. Becerril acknowledged that Juan
Pablo had previously been prosecuted and sentenced to prison; however, she claimed
that he committed crimes with impunity. According to Becerril, “many people in [her]
hometown talk about” Juan Pablo “kill[ing] [a] 13- or 14-year old boy only because
the boy’s father had problems with [Juan Pablo].” Id. at 341. Becerril maintained that
Juan Pablo “came to the United States” for a “short time” to “escape from . . . the
boy’s father,” but he never faced “any consequences for his evil doings.” Id.
Prior to the incident with Juan Pablo, Becerril worked as a teacher. After the
incident, she lost her job. She believed that it was because Juan Pablo’s mother (her
aunt) “was the director of public education” in the area. Id. at 337. Becerril conceded
that she had no direct evidence that her aunt was involved in her termination.
Following Juan Pablo’s attack, Becerril saw him “many times. . . . [O]ne time,
he chased [her] in his car. [She] was in [her] car with [her] mother, and he was
chasing [her] with a gun.” Id. at 338. According to Becerril, Juan Pablo was shouting
“obscenities” and “honking” his horn. Id. The “obscenities” that Juan Pablo shouted
included “f***king b***h, you’re going to pay for this. I’m going to kill you. I’m
going to chase you. I’m going to kill you, b***h.” Id. at 339. Becerril claimed that,
over a three-year period, she was harassed “about three times a week.” Id. at 345.
Becerril testified that “there were . . . a lot of threats with their guns, saying you can’t
go to the police. We’re not going to stop bothering you. You can’t say that. You need
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to go away.” Id. at 345–46 (emphases added). She claimed that “they” told her that
she had to “pay[] for what [she] had done to [Juan Pablo] because he had been hurt”
by his rivals after she refused him entry into her house. Id. at 346.
Becerril confirmed that she remained in Mexico for another three years after
Juan Pablo’s assault with no further incident. According to Becerril, she left Mexico
in 2005 to escape Juan Pablo; however, she returned to Mexico on July 1, 2016, based
on her belief that her daughter Garduno “was in danger.” Id. at 347. According to
Becerril, Juan Pablo again asked to enter Becerril’s house, but her brother refused him
entry. Juan Pablo again claimed that “he was being chased by these people that
wanted to kill him.” Id. at 348. Becerril testified that Juan Pablo then began
threatening Garduno and Becerril’s other relatives by “walking by or past them,
showing them [his] gun, and making verbal threats to . . . the children or to them.” Id.
at 349. Becerril also claimed that Juan Pablo hit two of her nephews. Becerril and
Garduno unsuccessfully attempted to reenter the United States on July 3, 2016.
At the hearing, Becerril conceded that no one “ever threaten[ed] [her] or
harm[ed] [her] when [she] w[as] back in Mexico in 2016.” Id. When asked whether
she “ever tr[ied] to move anywhere else inside of Mexico to avoid [her] problems
with Juan Pablo,” Becerril replied, “I didn’t try, but I thought about it many times, but
I know that organized crime has roots everywhere. I did not feel safe anywhere, and
I just felt that it was a better option, was the distance between Mexico and the United
States, and I felt more protected.” Id. at 349–50.
Becerril’s daughter Garduno, who was 13 years old at the time of the hearing,
also testified. After Becerril entered the United States, Garduno remained with family
members in Mexico. Garduno’s “earliest recollection of threatening behavior by Juan
Pablo perpetrated against [her]” was when Garduno and her cousins were at a
playground. Id. at 356–57. Juan Pablo walked around the playground, stopped, and
then “pointed with his finger showing that he was following” Garduno, her cousins,
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and some friends. Id. at 357. According to Garduno, she also saw Juan Pablo “[t]wo,
three times per week or once a week” outside of her school. Id. On one occasion at
the school, Juan Pablo was outside of his vehicle, while Garduno “was with [her]
uncle and [her] cousin, and [Juan Pablo] lift[ed] up his t-shirt, and he showed . . . a
gun.” Id. at 358.
Garduno testified that she believed that Juan Pablo was there to watch her and
her cousins “[b]ecause he only has problems with us”; however, she admitted that he
never spoke to her personally. Id. Garduno testified that she “felt unprotected because
[her] uncle and aunt . . . were more interested in [protecting] [her] cousin.” Id. at
359–60. She testified that she and her cousins could not “celebrate birthdays” outside
because Juan Pablo was their neighbor, so she mostly stayed in the house. Id. at 360.
Garduno explained that Becerril returned to Mexico in July 2016 to pick up Garduno,
then age 12, after Garduno called Becerril and told her about Juan Pablo’s threats
against their family. Garduno testified that, besides her aunt and uncle, her
grandfather also still lived in Mexico.
In support of their claim, the petitioners submitted documentary evidence. This
evidence included declarations by Becerril, a police officer, and Becerril’s brother,
which confirmed the details of Juan Pablo’s criminal record. His criminal record
included incarceration and prosecution for murder, robbery, assault, and drug
possession, and episodes of criminal behavior and threats. Additionally, the
petitioners provided copies of text messages from Juan Pablo to Becerril’s brother.
In those messages, Juan Pablo threatened that he was “armed,” that his “enemies and
the cops fear[ed] [him],” that he would “kill” Becerril’s brother, and that Becerril’s
brother would not “go alone” because Juan Pablo was “going to do as many as
possible.” Id. at 381 (bold omitted). Finally, the petitioner submitted several news
articles generally reporting on corruption and criminal activity in Mexico, including
kidnapping and crimes against women.
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A. IJ’s Decision
The IJ found Garduno removable as charged and denied both the petitioners’
application for asylum, withholding of removal, and CAT protection.
1. Asylum and Withholding of Removal
First, the IJ found that Becerril failed to establish that she suffered past
persecution. The IJ acknowledged that Becerril “suffered bruising and lacerations
during [Juan Pablo’s] attack” and that Juan Pablo’s “beating [of Becerril] certainly
frightened” Becerril. Id. at 276. But the IJ determined that the attack did not
constitute persecution because it “was a minor beating.” Id. The IJ further stated that
“Juan Pablo’s continuing harassment and threats,” including allegedly threatening her
once in a car chase, bribing police officers to threaten her, and causing his mother to
fire her from her job, did not rise to the level of past persecution because his threats
“appeared vague, non-specific, and lacking in immediacy.” Id. at 276–77. The IJ
noted that Becerril “remained in Mexico without physical harm for several years
despite the threats” and Juan Pablo “liv[ing] next door” to her. Id. at 277. The IJ
reasoned, “If [Juan Pablo] had truly wanted to harm or kill [Becerril], he could have
attacked her any time in her house.” Id. The IJ recognized Garduno’s testimony that
Juan Pablo harassed and indirectly threatened her over several years but found that
Juan Pablo never threatened her in person and had never even spoken with her. The
IJ concluded that “the threats were exaggerated and lacking immediacy,” given that
“Juan Pablo never attempted to fulfill [his] vague threats” and “never physically
harmed [Garduno].” Id. at 301–02.
The IJ also found that the petitioners failed to establish a reasonable fear of
future persecution in Mexico. The IJ noted that several of their relatives remained
safe in Mexico. The IJ acknowledged that the record included “some information
showing that Juan Pablo has threatened and harassed [Becerril’s] brother and his
children as well as [Garduno]”; however, the IJ found “nothing in the record
show[ing] that he has physically attacked” and no evidence existed “that Juan Pablo
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has harmed any of [Becerril’s] other relatives in Mexico.” Id. at 297. Additionally,
the IJ found that “the record fail[ed] to support a finding that Juan Pablo . . . targeted
the family as a whole”; instead, “the record demonstrate[d] that Juan Pablo . . .
threatened and harassed [Becerril] and her brother after they both refused to hide him
from a rival drug cartel.” Id. “Most importantly,” the IJ found no evidence “showing
that Juan Pablo would travel outside of [Becerril’s] hometown to search for her.” Id.
at 298. In fact, the IJ noted, the dispute with “Juan Pablo occurred exclusively in
[Becerril’s] hometown. She never tried to relocate somewhere else in Mexico to avoid
him.” Id. The IJ rejected Becerril’s contention “that Juan Pablo could use his
connections in the cartel to find her [because] she could not name his cartel.” Id. The
IJ also noted Becerril’s failure to “prove[] that Juan Pablo [was] a ‘boss’ in the cartel,
or . . . could leverage his supposed connections in the cartel to find her nationwide
in Mexico.” Id. The IJ further found that “family membership” was not a cognizable
particular social group. Id.
2. CAT Relief
Second, the IJ denied the petitioners’ applications for CAT protection because
they failed to establish they would likely be tortured if removed to Mexico. The IJ
concluded that the petitioners “did not suffer past persecution, much less torture in
Mexico.” Id. at 300; see also id. at 303 (“Because the [c]ourt has already denied
[Becerril’s] claim to CAT protection based upon the same facts, it also denies
[Garduno’s] application following the same reasoning.”). The petitioners were “never
arrested or harmed by police, military, or governmental officials in [Mexico].” Id. at
300. The IJ acknowledged that Becerril experienced a physical assault but also noted
it was a “single beating that she endured in 2002” that did not amount to torture. Id.
And the IJ cited record evidence that the petitioners “could relocate to another area
in Mexico to avoid Juan Pablo,” given that their problems occurred exclusively in
Becerril’s hometown, and Becerril never attempted to move with her daughter to
another part of Mexico to avoid them. Id. The IJ stated that the record failed to
support the petitioners’ assumption that Juan Pablo could find them nationwide.
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Finally, the IJ stated that the petitioners failed to establish a particularized risk of
torture based on general country conditions.
B. Board
1. Initial Decision
The petitioners appealed to the Board. The Board affirmed the IJ’s decision and
dismissed the petitioners’ administrative appeal. As relevant here, the Board affirmed
the IJ’s denial of asylum and withholding of removal based on the petitioners’
concession that their proposed family-based particular social group was not
cognizable under Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 581 (A.G. 2019). The
Board addressed only the petitioners’ request for CAT relief. It determined that the
IJ committed no legal or factual errors in denying CAT relief and dismissed the
appeal.
The petitioners timely petitioned for review in this court. See Becerril-Sanchez
v. Barr, Case Nos. 20-3146, 20-3147 (8th Cir.). In light of the Attorney General’s
intervening decision in Matter of L-E-A- (L-E-A- III), 28 I. & N. Dec. 304 (A.G.
2021), which overruled L-E-A- II, DHS filed an unopposed motion to remand for the
Board to reconsider the petitioners’ proposed family-based particular social group and
the IJ’s alternative findings. This court granted the motion. See Becerril-Sanchez v.
Barr, Case Nos. 20-3146, 20-3147 (8th Cir. July 8, 2021).
2. Decision After Remand
a. Asylum and Withholding of Removal
On remand, the Board issued two separate decisions concerning Becerril and
Garduno. With respect to Becerril, the Board affirmed the IJ’s findings that she did
not suffer harms sufficiently severe to constitute persecution. The Board noted that
Juan Pablo did once physically assault Becerril when she was pregnant in 2002,
resulting in bruising, scratches, and facial scars. Becerril, however, never sought
medical treatment for any of her injuries. The Board acknowledged Juan Pablo’s
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continued harassment of Becerril after the assault but “agree[d] with the [IJ] that the
threats [Becerril] experienced were vague, non-specific, and lacking sufficient
immediacy to constitute past persecution, considering that Juan Pablo did not inflict
further physical harm on [Becerril] despite living a half-mile away from her from
2002 to 2005.” A.R. at 4. As to Garduno, the Board likewise rejected her claim of
past persecution. According to the Board, “[t]he record support[ed] the [IJ’s]
determination that although Juan Pablo harassed and indirectly threatened [Garduno]
by making threatening gestures at her from a distance, he never threatened her in
person or even spoke with her.” Pet’rs’ Addendum at A7 (citations omitted).
The Board found that the petitioners lacked any objectively reasonable fear of
future persecution because Juan Pablo was now dead. Additionally, the Board noted
several of their relatives remained in Mexico and were never harmed; furthermore,
the petitioners failed to show that they could not relocate within Mexico. The Board
affirmed the IJ’s denial of CAT protection for the reasons stated in its prior opinion.
b. Motion to Reopen
While their initial petition for review was pending, the petitioners moved to
reopen their removal proceedings based on changed country conditions. The
petitioners stated that Juan Pablo had “been murdered by other gang members.” A.R.
at 107. According to the petitioners, “[a]lthough [their] case was principally based
upon [Juan Pablo’s] threats, [they] [had] always maintained that the local police in
the area worked in tandem with local cartels.” Id. They alleged that, “[s]ince the
murder of . . . Juan Pablo, narco-trafficker activity ha[d] only increased and there
[was] a rash of kidnapping of females in the area.” Id. Specifically, Becerril argued
that “the recent increase of kidnappings and violence in her native Mexico state,
coupled with the fact that she [had] a young daughter and that police corruption [had]
remained a constant in Mexico, warrant[ed] a reconsideration of the facts through
testimony to be again presented to the I.J.” Id. The petitioners asked the Board to
reopen to consider these new claims based on their female gender. In support of their
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motion, the petitioners attached a new declaration by Becerril explaining her fear of
crime, an affidavit from Becerril’s sister in Mexico describing their “community to
be at high risk” to “young people and girls from [the] community,” id. at 128, and
four news articles describing violence and police corruption in Mexico state.
The Board denied the motion to reopen. It “conclude[d] that the evidence
submitted in support of the motion to reopen demonstrates that Mexico has ongoing
problems with violence and kidnappings, which do not qualify as a material change
in country conditions that would warrant reopening.” Id. at 85; see also Pet’rs’
Addendum at A9. The Board also found that the petitioners’ motion to reopen did not
establish Becerril’s or Garduno’s prima facie eligibility for asylum, withholding of
removal, or CAT protection. The Board determined that, to the extent the petitioners
feared generalized crime in Mexico, this did not provide a basis for obtaining asylum
or withholding of removal. The Board concluded that neither petitioner had shown
specific grounds that she would personally be at risk of torture in Mexico.
II. Discussion
In this consolidated petition for review, the petitioners argue that the Board
erred in affirming the IJ’s denial of their applications for withholding of removal and
CAT protection, as well as Garduno’s asylum application.
We apply the substantial evidence standard of review to “decisions on asylum,
withholding of removal, and CAT protection.” Calvo-Tino v. Garland, 107 F.4th 861,
865 (8th Cir. 2024) (internal quotation marks omitted). We will uphold these
decisions if they are “supported by reasonable, substantial, and probative evidence
based on the record as a whole.” Id. (internal quotation marks omitted). This court
“appl[ies] the substantial evidence standard to both the Board’s factual findings and
its ultimate conclusion that a petitioner failed to prove past persecution or a well-
founded fear of future persecution.” Id. (internal quotation marks omitted). Legal
determinations are reviewed de novo. Id. “Only the Board’s order is subject to our
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review, including the [IJ’s] findings and reasoning to the extent they were expressly
adopted by the Board. We view the administrative factual findings as conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Id. (cleaned up).
A. Withholding of Removal and Asylum
The petitioners argue that the Board legally and factually erred in denying their
applications for withholding of removal and Garduno’s asylum application. They
maintain that they are members of a particular social group—their family. According
to the petitioners, even though this court remanded to the Board for consideration of
their family-based social group, the Board failed to address that issue; instead, it
denied all applications based on its finding that the petitioners did not suffer past
persecution. Alternatively, they argue that even if they did not suffer past persecution,
they demonstrated a clear probability of future prosecution based on their
membership in their family.
A petitioner is eligible for asylum “if the Attorney General ‘determines that
such [petitioner] is a refugee within the meaning of section 1101(a)(42)(A) of this
title.’” Id. (alteration in original) (emphasis omitted) (quoting 8 U.S.C.
§ 1158(b)(1)(A)). Included within the definition of “refugee” is “any person who is
‘unable or unwilling to return to [her country of origin] because of persecution or a
well-founded fear of persecution on account of . . . membership in a particular social
group[.]’” Id. (alterations in original) (quoting 8 U.S.C. § 1101(a)(42)(A)). “An
asylum applicant is entitled to a rebuttable presumption of a well-founded fear of
persecution after demonstrating that the applicant’s past persecution or harm occurred
because of a statutorily protected ground.” Mejia-Lopez v. Barr, 944 F.3d 764, 768
(8th Cir. 2019).
A petitioner is eligible for withholding of removal if she “show[s] ‘a clear
probability that [her] life or freedom would be threatened on the basis of [her
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membership in a particular social group] if removed to [her country of origin.]’”
Calvo-Tino, 107 F.4th at 865 (second, third, and fourth alterations in original)
(quoting Cano v. Barr, 956 F.3d 1034, 1038 (8th Cir. 2020)). “The standard for
withholding of removal is a clear probability of persecution, which is more rigorous
than the well-founded fear standard for asylum. Therefore, an alien who cannot meet
the standard for asylum cannot meet the standard for establishing withholding of
removal.” Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008) (citations omitted).
Persecution is an extreme concept that does not encompass
low-level intimidation and harassment. Minor beatings do not amount
to political persecution, even if government officials are motivated by
political animus. A specific threat of imminent death constitutes
persecution; a threat that is exaggerated, non-specific, or lacking in
immediacy does not.
. . .
Even if an applicant fails to show past persecution, he may be
granted asylum if he demonstrates a well founded fear of future
persecution. A refugee’s well-founded fear must be subjectively genuine
and objectively reasonable. . . . [T]o prove the objective element, [a
refugee] must provide credible, direct, and specific evidence of facts that
show a reasonable person in the alien’s position would fear persecution
if returned to his native country. An applicant does not have a
well-founded fear of persecution if he could avoid persecution by
relocating to another part of the applicant’s country and relocation
would be reasonable.
Molina-Cabrera v. Sessions, 905 F.3d 1103, 1105 (8th Cir. 2018) (cleaned up).
In Molina-Cabrera, we held that an asylum applicant failed to establish past
persecution because the harm that the applicant “suffered was not severe enough to
constitute past persecution.” Id. Specifically, we concluded that the alien did not
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suffer past persecution when, during a 25 to 30 minute meeting with a local politician,
the politician pushed the alien to the ground and kicked him for 5 to 10 minutes after
the alien declined to join the political party, resulting in only “minor physical injuries
[to the alien] from the [single] beating.” Id. at 1105. Additionally, the asylum
applicant failed to prove a well-founded fear of future persecution because the asylum
applicant “could avoid possible future persecution by relocating to another part of
[the country].” Id. at 1106.
The present case is substantially like Molina-Cabrera regarding Becerril’s
claimed past persecution as both cases involved single assaults. Although Becerril
was pregnant with her daughter Garduno at the time, no harm came to Garduno in
utero.
Becerril also testified that Juan Pablo once chased her in a car while armed
with a gun and honked his horn and shouted obscenities at her. Becerril claimed that
she was harassed about three times per week after the initial incident, threatened with
guns, and told not to go to the police. She claimed that “they” told her she had to pay
for what she had done to Juan Pablo because he had been hurt by his rivals after she
refused him entry into her house. A.R. at 346. These threats, however, are insufficient
to show past persecution. See, e.g., Padilla-Franco v. Garland, 999 F.3d 604, 608
(8th Cir. 2021) (“[T]hreats alone constitute persecution in only a small category of
cases, and only when the threats are so menacing as to cause significant actual
suffering or harm.” (internal quotation marks omitted)).
For similar reasons, Garduno’s claim of past persecution likewise fails. First,
as discussed supra, Garduno was not harmed in utero. Second, Garduno testified that
Juan Pablo never directly threatened her in person and had never even spoken with
her. Instead, he had threatened her indirectly by pointing a finger at her and her
cousins while they played at a playground and, on another occasion, by lifting his
shirt and showing her and her uncle and cousin a gun. These threats were not “so
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menacing as to cause significant actual suffering or harm.” Padilla-Franco, 999 F.3d
at 608 (internal quotation marks omitted).
Substantial evidence also supports the Board’s finding that the petitioners had
no well-founded fear of future persecution. There is no dispute that Juan Pablo is
dead; he poses no threat to the petitioners. Additionally, the petitioners could relocate
within their country. See Molina-Cabrera, 905 F.3d at 1106. Becerril testified that
she had not even tried to relocate to avoid her problems with Juan Pablo. She did not
even know which cartel he belonged to or where in the country cartel members had
influence.
Because Garduno’s asylum claim fails, her withholding-of-removal claim
necessarily fails. And, for the reasons explained, Becerril has failed to show a clear
probability of persecution, meaning her withholding-of-removal claim likewise fails.
B. CAT Protection
The petitioners next argue that they are entitled to CAT protection because of
“the past harm and threats they and their family suffered, as well as the country
conditions reports of record.” Pet’rs’ Br. at 14.
An applicant seeking CAT protection must establish that “it is more likely than
not that he or she would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). As part of this burden, the applicant must establish that he
or she will more likely than not face the torture he fears “by, or at the instigation of,
or with the consent or acquiescence of, a public official . . . or other person acting in
an official capacity.” Id. § 1208.18(a)(1).
If the applicant “does not contend that his predicted torture would be by or at
the instigation of or with the consent of [government] officials, he must show that
public officials will acquiesce in his torture.” Garcia v. Holder, 746 F.3d 869, 873
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(8th Cir. 2014). “Acquiescence of a public official requires that the public official,
prior to the activity constituting torture, have awareness of such activity and
thereafter breach his or her legal responsibility to intervene to prevent such activity.”
8 C.F.R. § 1208.18(a)(7). “A government does not acquiesce in the torture of its
citizens merely because it is aware of torture but powerless to stop it, but it does cross
the line into acquiescence when it shows willful blindness toward the torture of
citizens by third parties.” Ramirez-Peyro v. Holder, 574 F.3d 893, 899 (8th Cir. 2009)
(quoting Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007)).
Here, the record contains no evidence that a public official in Mexico would
acquiesce in the torture of the petitioners.
C. Motion to Reopen
Finally, the petitioners argue that the Board abused its discretion in denying
their motion to reopen due to changed country conditions in Mexico. They assert
major changes both in country conditions and in their personal lives between the
original hearing and the time of their motion. Specifically, they note that gang
members murdered Juan Pablo—the main source of past violence and threats against
the petitioners. They contend that his murder has intensified their fear because “his
persecution of them and their familial relationship to him simultaneously provided
a form of protection from the other gang members and criminal elements in Mexico.”
Pet’rs’ Br. at 15.
We review the Board’s denial of a motion to reopen for an abuse of discretion.
Kucana v. Holder, 558 U.S. 233, 242 (2010). “The [Board] abuses its discretion if its
decision is without rational explanation, departs from established policies, invidiously
discriminates against a particular race or group, or where the agency fails to consider
all factors presented by the [noncitizen] or distorts important aspects of the claim.”
Quecheluno v. Garland, 9 F.4th 585, 588 (8th Cir. 2021) (second alteration in
original) (quoting Caballero-Martinez v. Barr, 920 F.3d 543, 549 (8th Cir. 2019)).
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“Motions to reopen removal proceedings are disfavored because there is a strong
public interest in litigation finality.” Singh v. Garland, 93 F.4th 1086, 1089 (8th Cir.
2024) (internal quotation marks omitted). The Board may grant an untimely motion
to reopen “based on changed circumstances arising in the country of nationality or in
the country to which deportation has been ordered, if such evidence is material.” Id.
(quoting 8 C.F.R. § 1003.2(c)(3)(ii) (2020)). We have recognized that “[t]hese new
facts must be such that they would likely change the result in the case.” Id. (internal
quotation marks omitted). “The [Board] does not abuse its discretion when it
determines that new evidence, even if previously unavailable, is not likely to change
the outcome of the proceedings, for example, because it is cumulative.” Id. (internal
quotation marks omitted).
Here, the Board found that the evidence attached to the motion to reopen was
merely cumulative. General evidence that Mexico has ongoing problems with
violence and kidnappings does not show a change in country conditions.
Additionally, Juan Pablo’s death eliminated reasonable fear of persecution or torture
from him.
Nor have the petitioners raised a meritorious due process claim.
Even if [a] hearing contained fundamental errors, it is axiomatic
in this Circuit that an alien’s due process claim must demonstrate both
a fundamental procedural error and prejudice. To establish prejudice,
[the petitioner] must show the outcome of the proceeding may well have
been different had there not been any procedural irregularities.
Ramirez v. Sessions, 902 F.3d 764, 772 (8th Cir. 2018) (cleaned up). Here, the
petitioners argue:
The Board fundamentally misunderstood this situation and instead
used the death of Juan Pablo as equating to an automatic lack of
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reasonable fear on Petitioners’ part. This in itself constitutes error as a
matter of law, an unreasonable factual conclusion unsupported by
substantial evidence, and/or a violation of due process.
Pet’rs’ Br. at 35. But this argument does not mention any procedural errors
committed by the Board; instead, the argument concerns a disagreement with the
Board’s decision. Additionally, the petitioners cannot demonstrate prejudice because
they failed to demonstrate eligibility for relief.
III. Conclusion
Accordingly, we deny the petition for review.
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