No-_____ IN THE Supreme Court of the United States YOLANDA SANCHEZ-OCHOA, JOSE PEREZ-MURILLO, AND HECTOR PEREZ-SANCHEZ, Petitioners, v. JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI BLAKE P. SOMERS COUNSEL OF RECORD BLAKE P. SOMERS, LLC 114 E. 8th Street Cincinnati, Ohio 45202 513.587.2892 [email protected]Counsel for Petitioners
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No- · 2017-09-17 · No-_____ IN THE Supreme Court of the United States YOLANDA SANCHEZ-OCHOA, JOSE PEREZ-MURILLO, AND HECTOR PEREZ-SANCHEZ, Petitioners, v. JEFFERSON B. SESSIONS,
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KETHLEDGE, Circuit Judge. Yolanda Sanchez-Ochoa, Jose Perez-Murillo, and their son Hector Perez-Sanchez—all Mexican citizens—petition for review ofa final order of removal issued by the Board ofImmigration Appeals. Specifically, they challenge theBoard’s refusal to grant them asylum, withholding of
App. 2
removal, and protection under the Convention AgainstTorture. We deny the petition for review.
In 2012, the petitioners entered the United Statesusing border-crossing cards, which allow Mexicancitizens to visit the United States for a few days at atime. The family did not plan on returning home toJuarez, Mexico. Instead, they settled in Ohio, whereJose began working as a waiter. A few months later, hewas caught selling alcohol to an underage customerand pleaded guilty to disorderly conduct. Immigrationsand Customs Enforcement began deportationproceedings against him. Yolanda thereafter filed anapplication for asylum, withholding of removal, andprotection under the Convention Against Torture forherself, Jose, and their son.
An immigration judge held a hearing on thatapplication. Jose testified that he was worried aboutreturning to Mexico because he believed that a drugcartel was targeting him for extortion. According toJose, before the family left Juarez, unidentified menhad threatened to kill him if he did not hand over histruck and 20,000 pesos. Jose said that the threats hadcontinued even after the family fled to the UnitedStates: about a year after they left, one of their Juarezneighbors told Jose that men in a black truck had comelooking for the family. Jose took these threatsseriously, because he knew that other neighbors hadbeen beaten or murdered after refusing to comply withextortionists’ demands. He believed that a drug cartelwas orchestrating all the extortion attempts, threats,and attacks. The immigration judge found that Josewas credible, but denied the family’s application. The
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Board of Immigration Appeals affirmed. Thereafter,the petitioners filed this petition for review.
We review the Board’s factual findings forsubstantial evidence, and its legal conclusions de novo.Marikasi v. Lynch, 840 F.3d 281, 286 (6th Cir. 2016).To prove eligibility for asylum, applicants must showthat they are “refugees” under the Immigration andNationality Act. Id. at 287; see 8 U.S.C. § 1158(b)(1)(A).The definition of refugee includes persons who have a“well-founded fear” that, if they returned to their homecountry, they would be persecuted “on account of . . .[their] membership in a particular social group[.]” 8U.S.C. § 1101(a)(42). To qualify as a particular socialgroup, the alleged group must be, among other things,distinct enough “that the community would recognizeit as a discrete class of persons.” Menijar v. Lynch, 812F.3d 491, 498 (6th Cir. 2015).
Jose and his family argue that, if they returned toMexico, they would be persecuted because they belongto a particular social group—one that, they say,encompasses all persons “in Mexico who are notassociated with either a cartel or the Mexicangovernment.” But that group is not distinct enough toqualify as a particular social group under 8 U.S.C.§ 1101(a)(42). In Umana-Ramos v. Holder, an asylumapplicant argued that he belonged to a group of “youngSalvadorans who [had] been threatened because theyrefused to join” a specific gang. See 724 F.3d 667, 673-74 (6th Cir. 2013). The court held that the group wasnot particular enough, “because it could include allSalvadoran youth who are not members” of the gang.Id. Here, the petitioners’ alleged group appears evenbroader; it includes all people in Mexico who are
App. 4
neither cartel members nor government employees.Although the petitioners might have well-founded fearsabout returning to Mexico, we may not grant themasylum on the basis of a “country-wide risk ofvictimization” through extortion. Lopez-Castro v.Holder, 577 F.3d 49, 54-55 (1st Cir. 2009); cf. Koliadav. I.N.S., 259 F.3d 482, 488 (6th Cir. 2001). Thus, thepetitioners’ alleged social group “does not havesufficient particularity” to satisfy the Act, and theirasylum claim fails. Umana-Ramos, 724 F.3d at 674.The petitioners’ claim for withholding of removal failsfor the same reason. Id.; see 8 U.S.C. § 1231(b)(3)(A).
The petitioners also argue that they are entitled toprotection under the Convention Against Torture. Tosucceed on this claim, they must show that, “morelikely than not,” they would be tortured if removed toMexico. Menijar, 812 F.3d at 501 (citation omitted).Torture includes severe pain and suffering inflicted bygovernment officials, or inflicted by other persons withthe encouragement, consent, or acquiescence ofgovernment officials. Id.
The Board rejected the petitioners’ claim under theConvention because they had not proven that theMexican government would acquiesce in (or be willfullyblind to) a private person torturing the petitioners. TheBoard’s conclusion was based on substantial evidence.Jose admitted that he never called the police to seektheir help. And the petitioners presented no proof thatthe police were involved in the threats against them orin the attacks on their neighbors. Instead, thepetitioners rely on Jose’s belief that the Juarez policeare “the same as the cartels” and thus would notprotect him. The petitioners also emphasize that the
App. 5
United States Department of State, in a countrywidereport on human rights abuses in Mexico, concludedthat the Mexican police and military had been involvedin “serious abuses, including unlawful killings, physicalabuse, torture, and disappearances.” But neither Jose’sbelief nor a general countrywide report on police abusesproves that the Juarez police—or any other policedepartment in Mexico—would be more likely than notto acquiesce in cartel members torturing thepetitioners. See Cruz-Samayoa v. Holder, 607 F.3d1145, 1155 (6th Cir. 2010). Thus, the Board reasonablyconcluded that the petitioners are not entitled toprotection under the Convention Against Torture.
In sum, we do not discount the dangers this familymight face upon their return to Mexico. But thosedangers are faced by many people in Mexico; and inany event we have no lawful basis to set aside thedecision of Board. The petition for review is thereforedenied.
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APPENDIX B
U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 22041
In re: YOLANDA SANCHEZ OCHOA JOSE PEREZ-MURILLO HECTOR MANUEL PEREZ SANCHEZ
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS:
Blake P. Somers, Esquire
ON BEHALF OF DHS:
Jeremy Santoro Assistant Chief Counsel
APPLICATION: Asylum; withholding of removal;Convention Against Torture
App. 7
The respondents,1 natives and citizens of Mexico,appeal from the January 22, 2015, decision of theImmigration Judge, which denied the respondents’application for asylum and denied the adultrespondents’ applications for withholding of removal,and for protection under the Convention AgainstTorture.2 Sections 208(b)(1)(A) and 241(b)(3)(A) of theImmigration and Nationality Act (Act), 8 U.S.C.§§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c),1208.18. The respondents’ appeal will be dismissed.
We review for clear error the findings of fact,including the determination of credibility, made by theImmigration Judge. 8 C.F.R. § 1003.1(d)(3)(i). We
1 The respondents are a family. The mother is the lead respondent(A205 998 676), and the other respondents, and derivativebeneficiaries are her husband (A205 537 233) and her son (A205998 677) (I.J. at 1-3, 9; Tr. at 7). The application for asylum filedby the lead respondent applies to her husband and her son. See 8C.F.R. § 1208.3(a). Unlike the lead respondent’s son, her husbandhas filed a separate application for withholding of removal andprotection under the Convention Against Torture (CAT). The leadrespondent’s son is not entitled to assert derivative claims forwithholding of removal or protection under the CAT. See Matter ofA-K-, 24 I&N Dec. 275, 279 (BIA 2007) (although section208(b)(3)(A) of the Act provides for derivative asylum, it does notprovide for derivative withholding of removal). All references to“the respondent” refer to the lead respondent’s husband unlessotherwise indicated.
2 The respondents on appeal do not challenge the ImmigrationJudge’s finding them ineligible for voluntary departure (I.J. at 9;Tr. at 3, 28). Therefore, this issue is waived. Matter of R-A-M-, 25I&N Dec. 657, 658 n. 2 (BIA 2012) (when a respondent fails tosubstantively appeal an issue addressed in an Immigration Judge’sdecision that issue is waived before the Board).
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review de novo all other issues, including whether theparties have met the relevant burden of proof, andissues of discretion. 8 C.F.R. § 1003.1(d)(3)(ii).
We affirm the Immigration Judge’s conclusion thatthe respondent did not meet his burden of provingeligibility for asylum (I.J. at 14). Section 208(b)(1)(B)(i)of the Act; 8 C.F.R. §§ 1003.1(d)(3)(ii); 1208.13(a). TheImmigration Judge’s factual findings based on theevidence of record are without clear error. 8 C.F.R.§ 1003.1(d)(3)(i); Matter of J-Y-C-, 24 I&N Dec. 260,263 (BIA 2007) (a factual finding is not “clearlyerroneous” merely because there are two permissibleviews of the evidence). The Immigration Judgeconcluded that although the respondent’s testimonywas credible, he did not meet his burden to establish awell-founded fear of future persecution in Mexico onaccount of his membership in a particular social groupcomposed of “people who are in Mexico who are notassociated with a cartel or the government” (Resp. Br.at 10, 16, 18-19; I.J. at 8-11; Tr. at 27). See section101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42).
As the respondent does not claim past persecution,it is his burden to establish a well-founded fear offuture persecution in Mexico on account of hismembership in a particular social group (Resp. Br. at12; I.J. at 9·10; Tr. at 27·28). See 8 C.F.R.§ 1208.13(b)(1). We agree with the Immigration Judgethat the respondent did not establish a well-foundedfear of persecution by his alleged persecutors in Mexico(I.J. at 10-11, 14). 8 C.F.R. §§ 1003.1(d)(3)(ii),1208.13(b)(2). The Immigration Judge properlyconcluded that there is insufficient evidence in therecord to support the respondent’s claim that he faces
App. 9
a well-founded fear of future persecution. 8 C.F.R.§ 1208.13(b)(2).
We agree with the Immigration Judge that therespondent did not meet his burden to establish thatthe threats or harm he fears would be inflicted eitherby the government or by individuals or groups that areeither aligned with the government or that thegovernment is unable or unwilling to control (I.J. at 13-14). See Khalili v. Holder, 557 F.3d 429, 436 (6th Cir.2009) (to qualify as persecution for the purpose ofasylum, an act must be inflicted either by thegovernment or by individuals or groups the governmentis unable or unwilling to control). The ImmigrationJudge correctly found that the respondent did notreport any of the incidents he or members of his familyexperienced by alleged drug cartel members to thepolice in Mexico (I.J. at 4-5, 14; Tr. at 54-55). Thus, weconclude, based on this record, the Immigration Judge’sfactual findings that the respondent failed to establishthat the Mexican government is unable or unwilling tocontrol the drug cartel is not clearly erroneous, as itwas a permissible view of the evidence. 8 C.F.R.§ 1003.1(d)(3)(i); Matter of D-R-, 25 I&N Dec. 445, 455(BIA 2011) (explaining that an Immigration Judge maymake reasonable inferences from direct andcircumstantial evidence in the record as a whole and isnot required to accept a respondent’s account whereother plausible views of the evidence are supported bythe record).
Further, the Immigration Judge noted that therespondent’s daughter apparently continues to residein Mexico without any indication of being threatenedsince April 2012, physically harmed, or persecuted even
App. 10
though his alleged persecutors asked for herwhereabouts in April 2013, which undercuts hisclaimed fear (I.J. at 4, 6-7, 12; Tr. at 46-48, 55, 57, 72-74, 76). See Bonilla-Morales v. Holder, 607 F.3d 1132(6th Cir. 2010) (no well-founded fear of persecutionwhere family members remained in native countryunharmed). The respondent has not shown that theImmigration Judge’s factual determinations are clearlyerroneous. 8 C.F.R. § 1003.1(d)(3)(i); Matter of Z-Z-O-,26 I&N Dec. 586 (BIA 2015).
The Immigration Judge correctly stated that therespondent has not established membership in acognizable particular social group under the Act (I.J. at11). Section 101(a)(42) of the Act, 8 U.S.C.§ 1101(a)(42). We agree with the Immigration Judgethat the respondent’s group lacks particularity and ashared immutable characteristic (I.J. at 8, 11; Tr. at79). See Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA2014).
Further, contrary to the respondent’s appellateassertion, the record does not show that he belongs toa particular social group because he is believed to havemoney (I.J. at 6, 11; Tr. at 57). Wealth is generally toosubjective to serve as a boundary of a cognizable socialgroup. See Matter of S-E-G-, 24 I&N Dec. 579, 585 (BIA2008). Moreover, “perceived wealth” is not sufficient,without more, to establish membership in a particularsocial group. Matter of S-V-, 22 I&N Dec. 1306, 1310(BIA 2000), overruled on other grounds by Zheng v.Ashcroft, 332 F.3d 1186 (9th Cir. 2003). Therefore, weagree with the Immigration Judge that the respondenthas not established membership in a cognizableparticular social group within the meaning of the Act.
App. 11
The Immigration Judge correctly determined thatthe respondent’s asylum claim lacks the required nexusbetween any feared harm in Mexico and one of theprotected grounds enumerated in the definition of“refugee” (I.J. at 12). Section 101(a)(42) of the Act. Weagree with the Immigration Judge that the respondentdid not present direct or circumstantial evidence thathis alleged membership in a particular social group, orany other protected ground enumerated in the Act,would be at least one centra] reason why his allegedpersecutors would threaten or harm him. Section208(b)(1)(B)(i) of the Act; Umana-Ramos v. Holder, 724F.3d 667, 671 (6th Cir. 2013); Matter of N-M-, 25 I&NDec. 526, 529 (BIA 2011) (an applicant must prove thatrace, religion, nationality, membership in a particularsocial group, or political opinion was or will be at leastone central reason for the claimed persecution); Matterof J-B-N- & S-M-, 24 I&N Dec. 208, 212 (BIA 2007). A“persecutor’s actual motive is a matter of fact to bedetermined by the Immigration Judge and reviewed byus for clear error.” Matter of N-M-, supra, at 532;Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580, 587(BIA 2011).
There is no clear error in the Immigration Judge’sfindings pertaining to the motives of the respondent’salleged persecutors in Mexico. 8 C.F.R.§ 1003.1(d)(3)(i). Based on the evidence of record,including the respondent’s testimony, the respondentsfear criminal extortion threats, which do not constitutea basis for asylum (I.J. at 4-8, 10, 12; Tr. at 44-46, 49-51-53, 60, 64-65, 68-70, 73-74, 76, 78-81). See Matter ofN-C-M-, 25 I&N Dec. 535, 536 n.1 (BIA 2011) (“Victimsof gang violence and unwilling gang recruits do notdescribe a particular social group.”); Matter of V-T-S-,
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21 I&N Dec. 792 (BIA 1997) (holding that evidence thatperpetrators were motivated by their victim’s wealth,in the absence of evidence to suggest other motivations,will not support a finding of persecution within themeaning of the Act); Matter of T-M-B-, 21 I&N Dec. 775(BIA 1997) (extortion by individuals acting in theirpersonal capacity is not persecution on account of anenumerated ground).
As the Immigration Judge found, the evidenceshows that the respondents fear generalized violencefrom drug cartels and crime affecting the population atlarge, which is not sufficient to establish a claim forasylum (I.J. at 7, 12; Tr. at 70, 77, 81). 8 C.F.R.§ 1208.13(b)(2); Umana-Ramos v. Holder, supra, at 674(gang violence is widespread and affects population ofcountry and is not limited to proposed particular socialgroup); see also Matter of M-E-V-G-, supra, at 235(asylum and refugee laws do not protect people fromgeneral conditions of strife, such as crime and othersocietal afflictions; an applicant must be targeted on aprotected basis to establish a claim).3
For these reasons, we affirm the ImmigrationJudge’s determination that the respondent has not methis burden of proof to establish eligibility for asylum.4
3 We need not address the respondent’s arguments regardinginternal relocation (I.J. at 13). The respondent has not otherwisemet his burden of proof with respect to his application for asylum.See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rulecourts and agencies are not required to make findings on issues thedecision of which is unnecessary to the results they reach.”).
4 As the lead respondent is not eligible for asylum, her husbandand her son are not eligible for derivative asylum status.
App. 13
8 C.F.R. § 1208.13(a). As the lead respondent has notestablished eligibility for asylum, the adultrespondents cannot satisfy the more stringent clearprobability standard required for withholding ofremoval (I.J. at 14-15). See 8 C.F.R. § 1208.16(b).
We also agree with the Immigration Judge that theadult respondents did not establish their eligibility forprotection under the CAT (I.J. at 15). The respondenthas not shown that it is more likely than not that theywould be tortured by or at the instigation of or with theconsent or acquiescence or willful blindness of a publicofficial or other person acting in an official capacity inMexico (I.J. at 15). See generally Matter of J-F-F-, 23I&N Dec. 912 (A.G. 2006); see also Amir v. Gonzales,467 F.3d 921 (6th Cir. 2006). The respondent claims onappeal that pursuant to Comollari v. Ashcroft, 378 F.3d694 (7th Cir. 2004), the anticipation of death by drugcartel members can be a source of acute mentalanguish or torture. The respondent’s reliance howeveron a decision from the Seventh Circuit is misplacedbecause we are only bound by precedents from theSixth Circuit when adjudicating cases arising withinthe Sixth Circuit See Matter of Ponce De Leon-Ruiz, 21I&N Dec. 154, 159 (BIA 1996). Further, the generalevidence of country conditions is not sufficient toestablish a claim for protection under the CAT. Therespondent did not establish that specific grounds existwhich indicate the adult respondents would bepersonally at risk of torture. See Matter of J-E-, 23 I&NDec. 291, 303 (BIA 2002), overruled on other grounds byAzanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004).Accordingly, the following order will be entered.
App. 14
ORDER: The respondents’ appeal is dismissed. ____________________________FOR THE BOARD
App. 15
APPENDIX C
IMMIGRATION COURT 801 W. SUPERIOR AVE, STE13-100
CLEVELAND, OH 44113
Case No.: A205-998-676
[Dated January 22, 2015]
In the Matter of SANCHEZ OCHOA, YOLANDA
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered onJANUARY 22, 2015 This memorandum is solely for theconvenience of the parties. If the proceedings should beappealed or reopened, the oral decision will become theofficial opinion in the case.
[X] The respondent was ordered removed from theUnited States to MEXICO or in the alternative.
[ ] Respondent’s application for voluntarydeparture was denied and respondent wasordered removed to MEXICO or in thealternative to.
[ ] Respondent’s application for voluntarydeparture was granted until upon posting a bondin the amount of $ _____ with an alternate orderof removal to MEXICO.
withdrawn. [X ] Withholding of removal was ( ) granted
(X) denied ( ) withdrawn. [ ] A Waiver under Section ___ was ( ) granted
( ) denied ( ) withdrawn. [ ] Cancellation of removal under section 240A(a)
was ( ) granted ( ) denied ( ) withdrawn.Respondent’s application for: [ ] Cancellation under section 240A(b)(1) was
( ) granted ( ) denied ( ) withdrawn. If granted, itis ordered that the respondent be issued allappropriate documents necessary to give effectto this order.
[ ] Cancellation under section 240A(b)(2) was( ) granted ( ) denied ( ) withdrawn. If granted itis ordered that the respondent be issued allappropriated documents necessary to give effectto this order.
[ ] Adjustment of Status under Section __ was( ) granted ( ) denied ( ) withdrawn. If granted itis ordered that the respondent be issued allappropriated documents necessary to give effectto this order.
[X] Respondent’s application of (X) withholding ofremoval ( ) deferral of removal under Article IIIof the Convention Against Torture was( ) granted (X) denied ( ) withdrawn.
[ ] Respondent’s status was rescinded under section246.
[ ] Respondent is admitted to the United States asa ___ until ___.
[ ] As a condition of admission, respondent is topost a $ ___ bond.
App. 17
[ ] Respondent knowingly filed a frivolous asylumapplication after proper notice.
[ ] Respondent was advised of the limitation ondiscretionary relief for failure to appear asordered in the Immigration Judge’s oraldecision.
[ ] Proceedings were terminated. [ ] Other:________________________
Date: Jan 22, 2015
/s/ D. William Evans, Jr. D. WILLIAM EVANS, JR.Immigration Judge
GVT RESPAppeal: Waived Reserved
Appeal Due By: FEBRUARY 23, 2015
[Certificate of Service Omitted in Printing of Appendix.]
App. 18
APPENDIX D
IMMIGRATION COURT 801 W. SUPERIOR AVE, STE13-100
CLEVELAND, OH 44113
Case No.: A205-537-233
[Dated January 22, 2015]
In the Matter of PEREZ-MURILLO, JOSE
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered onJANUARY 22, 2015 This memorandum is solely for theconvenience of the parties. If the proceedings should beappealed or reopened, the oral decision will become theofficial opinion in the case.
[X] The respondent was ordered removed from theUnited States to MEXICO or in the alternative.
[ ] Respondent’s application for voluntarydeparture was denied and respondent wasordered removed to MEXICO or in thealternative to.
[ ] Respondent’s application for voluntarydeparture was granted until upon posting a bondin the amount of $ _____ with an alternate orderof removal to MEXICO.
App. 19
Respondent’s application for: [X ] Asylum was ( ) granted (X) denied ( ) withdrawn. [X ] Withholding of removal was ( ) granted
(X) denied ( ) withdrawn. [ ] A Waiver under Section ___ was ( ) granted
( ) denied ( ) withdrawn. [ ] Cancellation of removal under section 240A(a)
was ( ) granted ( ) denied ( ) withdrawn.Respondent’s application for: [ ] Cancellation under section 240A(b)(1) was
( ) granted ( ) denied ( ) withdrawn. If granted, itis ordered that the respondent be issued allappropriate documents necessary to give effectto this order.
[ ] Cancellation under section 240A(b)(2) was( ) granted ( ) denied ( ) withdrawn. If granted itis ordered that the respondent be issued allappropriated documents necessary to give effectto this order.
[ ] Adjustment of Status under Section __ was( ) granted ( ) denied ( ) withdrawn. If granted itis ordered that the respondent be issued allappropriated documents necessary to give effectto this order.
[X] Respondent’s application of (X) withholding ofremoval ( ) deferral of removal under Article IIIof the Convention Against Torture was( ) granted (X) denied ( ) withdrawn.
[ ] Respondent’s status was rescinded under section246.
[ ] Respondent is admitted to the United States asa ___ until ___.
[ ] As a condition of admission, respondent is topost a $ ___ bond.
App. 20
[ ] Respondent knowingly filed a frivolous asylumapplication after proper notice.
[ ] Respondent was advised of the limitation ondiscretionary relief for failure to appear asordered in the Immigration Judge’s oraldecision.
[ ] Proceedings were terminated. [ ] Other:________________________
Date: Jan 22, 2015
/s/ D. William Evans, Jr. D. WILLIAM EVANS, JR.Immigration Judge
GVT RESPAppeal: Waived Reserved
Appeal Due By: FEBRUARY 23, 2015
[Certificate of Service Omitted in Printing of Appendix.]
App. 21
APPENDIX E
IMMIGRATION COURT 801 W. SUPERIOR AVE, STE13-100
CLEVELAND, OH 44113
Case No.: A205-998-677
[Dated January 22, 2015]
In the Matter of PEREZ SANCHEZ, HECTOR MANUEL
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered onJANUARY 22, 2015 This memorandum is solely for theconvenience of the parties. If the proceedings should beappealed or reopened, the oral decision will become theofficial opinion in the case.
[X] The respondent was ordered removed from theUnited States to MEXICO or in the alternative.
[ ] Respondent’s application for voluntarydeparture was denied and respondent wasordered removed to MEXICO or in thealternative to.
[ ] Respondent’s application for voluntarydeparture was granted until upon posting a bondin the amount of $ _____ with an alternate orderof removal to MEXICO.
App. 22
Respondent’s application for: [X ] Asylum was ( ) granted (X) denied ( ) withdrawn. [X ] Withholding of removal was ( ) granted
(X) denied ( ) withdrawn. [ ] A Waiver under Section ___ was ( ) granted
( ) denied ( ) withdrawn. [ ] Cancellation of removal under section 240A(a)
was ( ) granted ( ) denied ( ) withdrawn.Respondent’s application for: [ ] Cancellation under section 240A(b)(1) was
( ) granted ( ) denied ( ) withdrawn. If granted, itis ordered that the respondent be issued allappropriate documents necessary to give effectto this order.
[ ] Cancellation under section 240A(b)(2) was( ) granted ( ) denied ( ) withdrawn. If granted itis ordered that the respondent be issued allappropriated documents necessary to give effectto this order.
[ ] Adjustment of Status under Section __ was( ) granted ( ) denied ( ) withdrawn. If granted itis ordered that the respondent be issued allappropriated documents necessary to give effectto this order.
[X] Respondent’s application of (X) withholding ofremoval ( ) deferral of removal under Article IIIof the Convention Against Torture was( ) granted (X) denied ( ) withdrawn.
[ ] Respondent’s status was rescinded under section246.
[ ] Respondent is admitted to the United States asa ___ until ___.
[ ] As a condition of admission, respondent is topost a $ ___ bond.
App. 23
[ ] Respondent knowingly filed a frivolous asylumapplication after proper notice.
[ ] Respondent was advised of the limitation ondiscretionary relief for failure to appear asordered in the Immigration Judge’s oraldecision.
[ ] Proceedings were terminated. [ ] Other:________________________
Date: Jan 22, 2015
/s/ D. William Evans, Jr. D. WILLIAM EVANS, JR.Immigration Judge
GVT RESPAppeal: Waived Reserved
Appeal Due By: FEBRUARY 23, 2015
[Certificate of Service Omitted in Printing of Appendix.]
App. 24
APPENDIX F
UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURTCLEVELAND, OHIO
[Filed January 22, 2015]
Files: A205-998-676 A205-537-233 A205-998-677
_______________________________________In the Matters of )
)YOlANDA SANCHEZ OCHOA )JOSE PEREZ-MURILLO )HECTOR MANUEL PEREZ SANCHEZ )
Section 237(a)(1)(B) of the Immigration andNationality Act as amended, in that afteradmission as a non-immigrant under Section101(a)(15) of the Act you have remained in theUnited States for a time longer than permitted.
App. 25
APPLICATIONS:
Asylum, withholding of removal pursuant toSection 241(b)(3)(A) of the Immigration andNationality Act, withholding or deferral ofremoval pursuant to Article 3 of the UnitedNations Convention Against Torture.
ON BEHALF OF RESPONDENTS:
BLAKE P. SOMERS, ESQUIRE
ON BEHALF OF DHS:
MICHAEL TRIPI, ESQUIRE ASSISTANT CHIEF COUNSEL
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondents are, lead respondent, a 44-year-oldfemale born August 13, 1970, she is a native andcitizen of Mexico. The respondent was issued a Noticeto Appear on September 10, 2013, which was served onher by regular mail on September 11, 2013. At amaster calendar hearing conducted February 19, 2014,the respondent appeared with counsel and admittedthe truth of factual allegations 1 through 4 in theNotice to Appear and conceded the 237(a)(1)(B) chargeof removability. Mexico has been designated as thecountry for removal. The rider respondents in the 233case are is a 44-year-old male born October 19, 1970, anative and citizen of Mexico, who was issued a Noticeto Appear on December 6, 2012, which was personallyserved on him on that date. At a master calendarhearing conducted on August 14, 2013 the respondentappeared with counsel and admitted the truth offactual allegations 1 through 4 in the Notice to Appear
App. 26
and conceded the 237(a)(1)(B) charge of removability.Mexico has been designated as the country for removal.With regard to the 677 case, the respondent is a 14-year-old male born August 20, 2000. The respondent isa native and citizen of Mexico. The respondent wasissued a Notice to Appear on September 10, 2013,which was served on him by ordinary United Statesmail on September 11, 2013. At a master calendarhearing conducted on February 19, 2014, therespondent appeared with counsel, he admitted thetruth of factual allegations 1 through 4 in the Notice toAppear, and conceded the 237(a)(1)(B) charge ofremovability. Mexico, again, has been designated as thecountry for removal. The Court finds that removabilityhas been established by clear and convincing evidencewith regard to each respondent. The issues remainingfor a determination by this Court have to do with theapplications for relief.
SUMMARY OF THE EVIDENCE
The evidence in this case consisted of the testimonyof rider respondent Jose Perez-Murillo. In addition tothe testimony of Mr. Murillo the Court has admitteddocumentary evidence into the record, and hasconsidered that documentary evidence in reaching itsdecision. The documentary evidence admitted andconsidered consists of Exhibits 1A through C, thosebeing the respondents’ respective Notices to Appear,Exhibit 2, the I-589 of the rider respondent Mr. Perez-Murillo with 138 pages of attached documents,Exhibit 3, the respondent’s evidentiary submission ofJune 2, 2014 containing pages 140 through 163 underTabs L through R, Exhibit 4, the lead respondent’sForm I-589, and Exhibit 5 consists of conviction
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records, a total of four pages which were submitted bythe Government on June 16, 2014, on the date of theindividual hearing in this matter, this is an evidence ofa conviction for sale of beer to an underaged person.
The respondent, Mr. Perez-Murillo, testified that hewas born October 19, 1970, in Mexico, and last enteredthe United States on May 3, 2012. He testified that heentered the United States at the point of entry at ElPaso, Texas, pursuant to a visa. He testified that hehad been to the United States previously onapproximately six occasions. The actual number ofentries is set forth on page 13 of Exhibit 2. Therespondent testified that prior to his last entry he hadnever overstayed his visa and did not work illegally inthe United States. He testified that the trips to theUnited States were for family parties and get-togethers, and for shopping or visiting friends.
The respondent testified that after the May 3, 2012entry he remained in the United States due toconditions in his home city of Juarez and due to deaththreats that he had received., someone threatening tokill him.
The witness testified that he was employed inMexico by a security company as a security guard, andhad what he described as a good income. He testifiedthat he is married to the lead respondent, Yolanda. Hetestified that she worked as a distributor for a companycalled Herbal Life in Mexico. He testified that he isnow employed in the United States at a Mexicanrestaurant in Cincinnati. His wife is employed at the aTaco Bell restaurant. He testified that neither of themhad work authorization. He testified that his sonHector at the time of the individual hearing was
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13 years of age and attends middle school in Norwood,Ohio.
The witness testified that he has one criminalconviction, this is evidenced by the documents inExhibit 5., hHe inadvertently sold a customer analcoholic drink without checking the person’s ID, andthe customer was in fact under 21 years of age. He hasno other criminal record. Neither his wife nor his sonhas any criminal record. The witness testified that heis an adherent to the Jehovah’s Witness faith.
He testified that, aside from a death threat that hereceived in Mexico, neither he, his wife, nor his sonhave ever had any other problems in Mexico.
The witness testified that in in December of 2011,he received a telephone call. The caller told the witnessthat he wanted the witness’s truck and 20,000 pesos.He was told that if he did not comply, it “will go reallybadly for you and your family.” He testified that thecaller also said “you’re going to die.”
The respondent testified that in October 2011, priorto the threat that he received, his mother-in-law hadreceived a phone call. She told him that the callerasked about the respondent’s wife., tThe caller wanteda “fee” for each car parked in front of the respondent’shome.
In April of 2012, the witness testified that hisdaughter also received a phone call. The caller told herthat he was the “commander,” and told her to “takethese threats seriously.” The caller told her that it wasgoing to go very bad because the respondent had madea complaint about the other telephone calls. Therespondent’s personal statement at page 14 indicates
App. 29
that he did not report the death threat to the police,but the respondent testified that the caller wasmisinformed about whether or not he had made acomplaint to the police.
The respondent testified that he is afraid of thesecallers. He testified that several residents of theirneighborhood had received similar threats and werekilled.
He testified that a neighbor named Rosie refused topay a demand for “rent”. The gang members thenreturned and killed her. There is no death certificate inthe record for this individual.
He testified that a person named Patricia and herhusband were beaten up when they refused to pay the“rent” to the gang members., He testified they werebeaten with a gun butt and; testified that they thenpaid the “rent” and left the area. There are nostatements from these two individuals in the record.
The respondent testified that a neighbor namedCezar refused to pay “rent” and was killed outside hishouse. Exhibit 3 tab P is a video about an individualwho was killed and dismembered by gang members.The video is a copy of media reports about gangkillings.
The respondent testified that in 2011, at his son’sschool, the individuals came to the school about paying“rent.” Children at the school were then put throughtraining as to how to react if a shooter came to theschool. The respondent testified that his wife’s cousinwas also killed in Mexico.
App. 30
Respondent testified that he did not report thesethreats to the police. He explained that to him thepolice are “the same as the cartel.”
Asked about living somewhere other than Juarez,the respondent testified that he could not relocate fromJuarez to another part of Mexico because, in hisopinion, everything is the same everywhere in Mexico.
The witness testified that he is not associated withthe Mexican government in any way., hHe was not inthe military or associated with the military. Hetestified that he is also not associated with any cartelin Mexico.
After May of 2012, he testified that he came to theUnited States and no one called the respondent or hiswife personally. In April of 2013, he was told byneighbors that people in a pickup truck came askingabout the whereabouts of the respondent, his wife, andthe respondent’s daughter.’s whereabouts. Thisneighbor was also asked if the respondent and hisfamily had money. The respondent speculated that thisinquiry was made at the neighbors because therespondent and his family lived in a fairly large houseand had several automobiles.
Exhibit 4 Tab O, page 150, is a photo of therespondent’s house, a satellite photo downloaded fromthe Internet. The circle in the center of the photo iswhere the respondent lived. The circle near the number150 is where the couple who was beaten for not payingthe rent lived. The houses with X’s drawn on them areplaces where neighbors were killed, according to therespondent. The house with one line drawn is wherehis wife’s cousin lived, who was killed. Exhibit 4,
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page 151, the photo at the top of this page is where awoman lives whose son was killed and dismembered.
The respondent testified that if he returns toMexico, he does not know what would happen, but heis worried.
On cross-examination the witness testified that hebelieves that the caller who threatened him inDecember of 2011 was a member of a drug cartel. Hebelieves that they called to extort money from him, andfor no other reason. He testified that these calls startedin October of 2011, but doesn’t know the name of thecaller. The callers never came to his house. He testifiedthat he was at home when this call was received. Thishappened in Ciudad Juarez. Ciudad Juarez is in thestate of Chihuahua. He believes that all of the callswere from drug cartel members, and that these are alsothe people who called his mother-in-law. He believes,according to his testimony, that these people werecalling to extort money from him, and for no otherreason.
He testified that in April of 2012 his daughterreceived a call and, again, believes this was made bydrug cartel members and was to extort money. The callwas for no other reason.
He testified on cross-examination that theneighbors who had problems had problems with drugcartel members and no one else. Their problems alsooccurred in Juarez. He testified that the neighbors thatwere killed were killed due to efforts to extort moneyfrom them.
He testified, however, that President Calderon haddeclared war on drug cartels, and that this curtailed
App. 32
their drug trafficking activities and they turned then tokidnapping and extortion for other sources of money.
He testified that the neighbors that were beaten upleft the area to live in the United States., tThis is whathe was told by other neighbors.
He testified that his mother lives in the UnitedStates., hHowever, his daughter still resides in Mexico,but has moved to a different house across the streetfrom the house where the respondent lived. He testifiedthat no one has called his family since he left Mexico.
He testified that in 2011 his wife’s cousin waskilled. He believes that the killing was performed bydrug cartel members. He believes that he was killedbecause they were trying to extort money, and for noother reason.
After the respondent left Mexico, he was told thatpeople in a black truck came looking for him in April of2013. He believes that these persons were drug cartelmembers, and believes they were looking for him toextort money from, and for no other reason. In responseto questioning by the Court, the respondent testifiedthat there was nothing in the course of the calls orthreats that led him to believe that the caller wasmotivated in any way by the fact that he doesn’t workfor the Mexican government or was not associated withdrug cartels.
The respondent agreed that the population ofMexico was over 100 million people. He is not aware ofhow many of those people work for the Mexicangovernment. He does not know how many of thosepeople might be affiliated in some way with drugcartels.
App. 33
The respondent testified that people whom heknows that were threatened, beaten, or killed had thishappen due to extortion efforts in connection withtrying to extort money from them. Those who didn’tpay were killed. These people were not threatened,beaten, or killed because were not associated with thegovernment. He testified that association with thegovernment has nothing to do with whether or notpeople are targeted for extortion. He testified thatextortionists targeted people because they can getmoney from them.
On redirect examination the witness testified thatgovernment officials can obtain protection that othersin Mexico are unable to obtain.
STATEMENT OF THE LAW
In order to be eligible for asylum under Section 208of the Act, respondents must prove that they arerefugees as that term is defined in Section101(a)(42)(A) of the Immigration and Nationality Act.In other words, they must prove that they eitherunable or unwilling to return to Mexico due to eitherpast persecution or a well-founded fear of futurepersecution on account of race, religion, nationality,membership in a particular social group, or politicalopinion. The respondents have identified membershipin a particular social group defined as “people inMexico who are not associated with either a cartel orthe Mexican government” as basis upon which theyhave been or sure they will be persecuted.
In order to be eligible for withholding of removalpursuant to Section 241(b)(3)(A) of the Immigrationand Nationality Act the respondents must prove that
App. 34
there is a clear probability, in other words that it ismore likely than not, that their lives or freedom wouldbe threatened in Mexico on account of theirmembership in their defined particular social group.
To establish eligibility for withholding or deferral ofremoval pursuant to Article 3 of the United NationsConvention Against Torture the respondents mustprove that it is more likely than not that they would besubjected to torture in Mexico by, at the instigation of,or with the consent or acquiescence of the governmentof Mexico, a public official of that government, or aperson acting in an official capacity.
The respondents, through counsel, concede that therespondents are not eligible for a grant of post-conclusion voluntary departure.
FINDINGS OF THE COURT
The threshold issue with regard to any applicationfor relief from removal has to do with the credibility ofwitnesses. In this case, the rider respondent JosePerez-Murillo was the sole witness, and the Court findsthat he was a credible witness.
ONE-YEAR ISSUE
The Government agrees that the lead respondent,Yolanda Sanchez Ochoa, timely filed her application forasylum, and that Jose Perez-Murillo and HectorManuel Perez Sanchez are derivative applicants underher I-589.
PAST PERSECUTION
The respondents, through counsel, informed theCourt that they make no claim that they were
App. 35
persecuted in the past in Mexico. As the respondentshave not proven that they have been persecuted in thepast on account of a protected characteristic, theytherefore do not gain the benefit of a presumption of awell-founded fear of future persecution. The Courtmust therefore examine the evidence in the record anddetermine whether or not the record contains sufficientcredible evidence upon which to conclude that therespondents have a well-founded fear of futurepersecution in Mexico.
WELL-FOUNDED FEAR
A well-founded fear of future persecution must beshown to be a fear that is both subjectively real andobjectively reasonable.
The respondent’s claim of a well-founded fear offuture persecution is based upon the respondent’s fearthat death threats made to them in connection withextortion attempts will be carried out if they are forcedto return to Mexico. In support of their claim of a well-founded fear of future persecution, the respondentspoint to neighbors and acquaintances who have beenbeaten and/or killed for refusing to comply withextortion requests by cartel members in Mexico.
While it is not clear form the evidence that theextortion attempts and accompanying death threatswere made by cartel members, the Court is satisfiedthat the threats were actually made. The only evidenceof cartel involvement, however, is Jose Perez-Murillo’stestimony that he believes that the threats, beatings,and killings about which he testified were carried outby cartel members. The basis of his belief is not clearfrom his testimony.
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NEXUS
Respondents must prove that any fearedpersecution is on account of a protected characteristic.See INA Section 101(a)(42)(A). The respondents assertmembership in particular social group defined as“people in Mexico who are not associated with either acartel or the Mexican government.” They assert thatthis is the basis upon which they will be persecuted inthe future in Mexico.
A particular social group refers to persons whoshare a common immutable characteristic. See Matterof Acosta, 19 I&N Dec. 211 (BIA 1985). Here therespondent’s particular social group does not set fortha group of persons who share an immutablecharacteristic. The basis of a particular social group isa lack of association with either the Mexicangovernment or a cartel. Associations that people may ormay not have are not immutable. While the fact of pastassociation cannot be changed, future associations area matter of individual choice and subject to change atany time. The Court finds, therefore, that the lack ofassociation with either the Mexican government orcartels is not an immutable characteristic, andtherefore cannot form the basis of a cognizableparticular social group. Consequently, the Court findsthat the respondent’s particular social group defined as“people in Mexico who are not associated with either acartel or the Mexican government” is not a cognizableparticular social group, with the result that therespondent has not proven that any feared persecutionis on account of a protected characteristic.
The Court would also note that this particular socialgroup is, in the judgement of the Court, too broad and
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amorphous to constitute a cognizable particular socialgroup. This group by its terms could include men,women, adults, children, Mexican citizens and non-Mexican citizens, and as a result the Court finds thatthis particular social group does not meet theparticularity requirement of a cognizable particularsocial group. See Matter of W-G-R-, 26 I&N Dec. 208(BIA 2014).
PERSECUTION
Persecution is defined as a threat to the life orfreedom of, or the infliction of suffering or harm uponthose who differ in a way regarded as offensive. SeeMatter of Acosta, 19 I&N Dec. 211 (BIA 1985).
The evidence in support of the respondent’s claim ofa well-founded fear of future persecution is that hisfamily fears that they will become victims of extortionor robbery or kidnapping if returned to Mexico.
The rider respondent, Mr. Perez-Murillo, concededthat extortionists target people whom they believe havemoney. He testified that affiliation with gangs or theMexican government has little or nothing to do with anextortionist’s decision to target any particularindividual.
The respondents have experienced only threats inthe past in Mexico. One of those threats wascommunicated to the respondent’s daughter in April of2012. This daughter continues to reside in Mexico in ahouse across the street from the house where therespondent and his family lived. This daughter has hadno further problems since she received a threateningphone call in April of 2012. This fact, in the judgement
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of the Court, undermines the respondent’s claim of awell-founded fear of future persecution.
The danger that the respondents fear in Mexico isnot persecution. The respondents were not targeted foran extortion attempt because they differed in a wayregarded by the extortionists as offensive. Mr. Perez-Murillo was targeted, as are thousands of others inMexico, because he was thought to have money, notbecause he differed in a way regarded by the callers asoffensive. Therefore, in the judgement of the Court, hehas not experienced persecution as that term is definedin Matter of Acosta.
The respondents justifiably fear that they willbecome victims of extortion and violent crime that ispervasive in Mexico today. The Court is sympathetic tothe respondent’s fears in this regard. However, suchfear does not form the basis of an asylum claim withoutmore. Matter of VTS, 21 I&N Dec. 792 (BIA 1997). Thisfear is no doubt shared by most, if not all, of thehundred million plus people who reside in Mexicotoday.
As the respondents have failed to prove that theyhave been persecuted in the past in Mexico, theytherefore bear the burden of proving that it would notbe reasonable to expect that they relocate to anotherpart of Mexico, thereby avoiding the feared persecution.See 8 C.F.R. 1208.13(b)(B) and 8 C.F.R.1208.13(b)(3)(i). In determining the reasonableness ofinternal relocation the Court considers the fact as setforth at 8 C.F.R. 1208.13(b)(3).
In his testimony Mr. Perez-Murillo only assertedthat they could not live elsewhere in Mexico aside from
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Ciudad Juarez because things are the same all overMexico. This, in the judgement of the Court, does notanswer the question as to whether or not they couldrelocate to another part of Mexico and avoid the fearedpersecution. Consequently, the Court finds that therespondents have not proved that it would beunreasonable to expect that they relocate to anotherpart of Mexico, thereby avoiding the feared persecution.
PRIVATE ACTOR
The respondents claim that they will be persecutedby a private non-governmental actor., tThey must,therefore, therefore prove that the government ofMexico is either unwilling or unable to control theiralleged persecutor.
In this case, the respondents alleged that theirpersecutors are members of cartels whose primaryactivity involves trafficking in controlled substances.The government of Mexico has made substantial effortsto control these organizations, and the prisons ofMexico are filled with persons associated with drugtrafficking cartels. It therefore cannot be said that thegovernment of Mexico is unwilling to take steps tocontrol those whom the respondents fear will persecutethem. While a persons of good faith can differ as to theefficacy of the Mexican government’s efforts in thisregard, certainly their intent is not reasonably open toquestion.
The other question is whether or not thegovernment of Mexico is unable to control those whomthe respondent fears will persecute them. There is nogovernment of which this Court is aware anywhere inthe world today that is able to guarantee the safety of
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its citizens or residents. The practical effect ofgovernments having limited resources is that they areable enabled them to hire limited numbers of lawenforcement agents. This means or results in the factthat the actions of law enforcement are generallyreactive rather than proactive. However, in thejudgement of the Court, this does not compel theconclusion that a government is unable to control thosewho might persecute others.
The respondent Mr. Perez-Murillo testified that hedid not report the threats and extortion attempts to thepolice in Mexico., Consequently, so it is impossible toknow what steps government agents in Mexico mayhave taken in response to the request for aid by therespondents.
The Court finds that there is insufficient evidencein the record upon which to conclude that thegovernment of Mexico is either unable or unwilling tocontrol those whom the respondents fear will persecutethem.
The Court finds that the respondents have provenneither past persecution nor well-founded fear of futurepersecution on account of a protected characteristic.They have therefore failed to prove that they arerefugees as that term is defined in Section101(a)(42)(A) of the Immigration and Nationality Act.Consequently, the Court finds the respondents havefailed to prove their eligibility for a grant of asylum.
As the respondents have failed to meet therelatively low threshold of proof required todemonstrated eligibility for a grant of asylum, itnecessarily follows that they have failed to meet the
App. 41
higher standard of proof necessary to demonstrateeligibility for a grant of withholding of removal, namelythat there is a clear probability, in other words that itis more likely than not, that their lives or freedomwould be threatened in Mexico on account of theirmembership in their defined particular social group.Consequently, the Court finds that the respondentshave failed to demonstrate their eligibility for a grantof withholding of removal pursuant to Section 241(b)(3)(A) of the Immigration and Nationality Act.
The respondents haves not presented evidence toestablish that it is more likely than not that they wouldbe subjected to torture in Mexico today by, at theinstigation of, or with the consent or acquiescence ofthe government of Mexico, a public official of thatgovernment, or a person acting in an official capacity.The evidence in the record, in the judgement of theCourt, does not prove that the government of Mexicomakes a practice of torturing its citizens. Likewise, theevidence does not prove that it is more likely than notthat an official of the Mexican government, havingknowledge that one or more of the respondents wasbeing, or is was about to be tortured would thereafterwillfully turn a blind-eye and allow that torture toeither commence or continue. Consequently, the Courtfinds that the respondents have not proven that it ismore likely than not that they would be subjected totorture in Mexico by, at the instigation of, or with theconsent or acquiescence of the government of Mexico,or a person acting in an official capacity. Therefore,they have not demonstrated their eligibility for a grantof withholding of removal pursuant to Article 3 of theUnited Nations Convention Against Torture.
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ORDERS
IT IS THEREFORE ORDERED that therespondents be removed from the United States toMexico.
IT IS FURTHER ORDERED that the respondent’sapplications for asylum be denied for the reasons setforth above.
IT IS FURTHER ORDERED that the respondent’sapplications for withholding of removal pursuant toSection 241(b)(3)(A) of the Immigration and NationalityAct be denied for the reasons set forth above.
IT IS FURTHER ORDERED that the respondent’sapplications for withholding or deferral of removalpursuant to Article 3 of the United Nations ConventionAgainst Torture be denied for the reasons set forthabove.