Petition for Review from the Board of Immigration Appeals.
No. A 088 922 375.
Kathleen C. Kersh, Emily M. Brown, ADVOCATES FOR BASIC LEGAL
EQUALITY, INC., Dayton, Ohio, for Petitioner.
M. Maurer, OFFICE OF IMMIGRATION LITIGATION, Washington,
D.C., for Respondent.
Before: MERRITT, MOORE, and BUSH, Circuit Judges.
K. BUSH, Circuit Judge.
this immigration case, Maribel Trujillo Diaz petitions for
review of an order denying her motion to reopen removal
proceedings. The United States Board of Immigration Appeals
("BIA") ruled that Trujillo Diaz failed to
establish a prima facie case of eligibility for asylum or
withholding of removal under the Immigration and Nationality
Act ("INA" or "Act") because she failed
to show that she would be singled out individually for
persecution based on her family membership. The BIA
reiterated this finding in ruling that Trujillo Diaz failed
to establish a prima facie case of eligibility for protection
under the Convention Against Torture. Because the BIA failed
to credit the facts stated in Trujillo Diaz's
declarations, and this error undermined its conclusion as to
the sufficiency of Trujillo Diaz's prima facie evidence,
we hold that the BIA abused its discretion. We further hold
that the BIA abused its discretion in summarily rejecting
Trujillo Diaz's argument that she could not safely
relocate internally in Mexico for purposes of showing a prima
facie case of eligibility for relief under the Convention
Against Torture. Thus, we vacate the order of the BIA and
remand for further proceedings consistent with this opinion.
Trujillo Diaz is a Mexican citizen who entered the United
States in February 2002. She was apprehended by Immigration
and Customs Enforcement ("ICE") in 2007 and placed
in removal proceedings. On July 11, 2012, Trujillo Diaz had a
merits hearing in her immigration proceeding. She sought
asylum, withholding of removal under the INA, withholding of
removal under the Convention Against Torture, and voluntary
departure. During her hearing, Trujillo Diaz testified that
she feared for her safety in Mexico because she believed the
drug cartel, La Familia, would seek revenge against her and
her family for her brother's refusal to work for them and
his subsequent fleeing to the United States.
immigration judge found that Trujillo Diaz's asylum
application was untimely filed, rendering her ineligible for
asylum and requiring her claim to be assessed under the
higher "clear probability of persecution" standard
for withholding of removal. Although he found Trujillo Diaz
to be a credible witness, the immigration judge ultimately
denied her application for asylum and withholding-of-removal
relief but granted her request for voluntary departure. In
finding that she could not meet her burden of proof to
establish a clear probability of future persecution, the
immigration judge relied on the fact that the cartel had not
harmed or threatened her or anyone else in her immediate
family besides her brother who refused to join the cartel.
Trujillo Diaz filed an appeal, but in May 2014, the BIA
dismissed it, again reiterating that she had not established
a clear probability of persecution in Mexico because
"her parents and two siblings ha[d] not been harmed by
the gang." Trujillo Diaz did not file a petition for
Trujillo Diaz was allowed to remain in the United States
under an ICE order of supervision. She received work
authorization and remained here until April 2017. During this
time, she regularly reported to her prescheduled ICE
February 2017, Trujillo Diaz learned that her father had been
kidnapped by the Knights Templar, a Mexican cartel. According
to Trujillo Diaz's father, during his kidnapping, his
captors told him they were looking for "Omar Daniel,
" Trujillo Diaz's brother, who had previously
refused to join the La Familia cartel. "The men"
told him that they "wanted to find Omar Daniel because
they were upset that he would not work for the gang" and
that "[t]hey were very angry that they could not find
Omar Daniel because he had fled to the United States."
They mentioned Trujillo Diaz by name, telling her father that
they "knew [he] was the father of Omar Daniel and
Maribel, " and that they "knew that Maribel had
gone to the United States too." They threatened to
"hurt the rest of [his] family if they could not get
their hands on Omar Daniel and Maribel."
on this new information, Trujillo Diaz filed a motion to
reopen her immigration proceedings and a motion to stay
removal. Because her motion to reopen was filed years after
her removal proceedings had closed, she sought reopening
under an exception to the time limit based on changed country
conditions in Mexico. Along with her evidence of changed
country conditions, Trujillo Diaz also filed, among other
things, a personal declaration, a declaration from her father
in which he described his kidnapping, and a declaration from
an expert witness concerning the threat of future harm to
Trujillo Diaz at the hands of the Knights Templar because of
her brother's failure to comply with the cartel's
demands. In her motion, Trujillo Diaz alleged that she feared
returning to Mexico because she believed that the Knights
Templar cartel that kidnapped her father was targeting her
and her family to get revenge for her brother's fleeing
the country after refusing to join the La Familia cartel.
days after she filed her motions, ICE apprehended Trujillo
Diaz outside her home, detained her, and scheduled her
removal for April 11, 2017. On April 10, the BIA denied her
stay of removal but took no action on her motion to reopen.
Trujillo Diaz filed a petition for review of the denial of
the stay and an emergency motion to stay removal. This court
denied her motion to stay and dismissed the petition for
review on April 11, 2017. Trujillo Diaz was deported eight
24, 2017, the BIA denied Trujillo Diaz's motion to reopen
her removal proceedings, finding that she had not
demonstrated prima facie eligibility for asylum, withholding
of removal, or protection under the ...