Maleni Gutierrez Molina v. Matthew G. Whitaker

Maleni Gutierrez Molina and three of her children, Eduardo Yoneli Guido

Gutierrez, Melina Elizabeth Guido Gutierrez, and Jorge Javier Guido

Pursuant to 1 Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney

General Matthew G. Whitaker is automatically substituted for former Attorney

General Jefferson B. Sessions, III as the respondent in this case.

Gutierrez—natives and citizens of Mexico—petition for review of an order of the

Board of Immigration Appeals denying their claims for asylum, withholding of

removal, and relief under the Convention Against Torture. This court denies the

petition for review.

I.

Maleni Gutierrez Molina and her children were paroled into the United States

in 2015. The government placed them in removal proceedings. Gutierrez conceded

removability, but requested asylum, withholding of removal, and protection under the

Convention Against Torture, based on fears that she and her family would be harmed

if returned to Mexico.

“To be eligible for asylum, an applicant must show that she is unable or

unwilling to return to her country of origin ‘because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.’” Marroquin-Ochoma v. Holder, 574

F.3d 574, 577 (8th Cir. 2009), quoting 8 U.S.C. § 1101(a)(42)(A). The Gutierrezes

seek asylum based on their membership in a particular social group.

At the removal hearing, Gutierrez and other family members testified that a

cartel kidnapped Gutierrez’s niece and demanded a ransom. The cartel released her

the next day after her mother paid part of the ransom. Gutierrez and her children left

Michoacan, Mexico, after the kidnappers demanded the rest of the money and

threatened her family. The Gutierrezes recalled several other incidents. Eduardo

received a threatening call from an unknown caller demanding money. After turning

off his cell phone, he did not receive any more threats. A truck followed Melina

once, but after waiting inside a house for 15 to 20 minutes, she walked home safely.

Gutierrez testified she witnessed two people getting killed. The immigration judge

asked several times why she did not report these crimes to police and questioned

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whether her husband—a police officer in Mexico—would do anything if someone

reported crimes to him.

During the hearing, Gutierrez’s attorney did not elicit testimony identifying any

particular social group. Instead, at the close of the hearing, her attorney stated “I do

have proposed social groups if the Court would like it.” The judge replied:

No, it’s not up to you to tell me what the social groups are, it’s up to the

[Gutierrezes] to do that. . . . [A]t the end of all the testimony and

evidence, I don’t find it particularly appropriate because you may

propose a social group that I don’t know anything about and I’m going

to have to start asking more questions.

Her attorney replied, “Nothing further, Your Honor.”

The judge analyzed Gutierrez’s application for asylum based on her

membership in three potential social groups: family, family members of police

officers, and persons who resist gangs in Mexico. The judge found no well-founded

fear of future persecution because Gutierrez failed to connect the kidnapping and

other incidents to any protected ground. She also failed to demonstrate past

persecution because her family experienced only unfulfilled threats lacking

specificity and immediacy. Because they failed to establish their eligibility for

asylum, the judge denied their claims for asylum and withholding of removal. The

judge also denied relief under the Convention Against Torture.

Gutierrez appealed to the BIA, arguing the immigration judge violated the Due

Process Clause and erred in finding no past persecution or well-founded fear of future

persecution. The BIA rejected Gutierrez’s due process arguments and affirmed the

decision of the immigration judge.

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II.

Under the Due Process Clause of the Fifth Amendment, Gutierrez is entitled

to a fundamentally fair hearing. Tun v. Gonzales, 485 F.3d 1014, 1025 (8th Cir.

2007), citing Reno v. Flores, 507 U.S. 292, 306 (1993); Al Khouri v. Ashcroft, 362

F.3d 461, 464 (8th Cir. 2004) (“The Fifth Amendment’s due process clause mandates

that removal hearings be fundamentally fair.”). “For a removal hearing to be fair, the

arbiter presiding over the hearing must be neutral and the immigrant must be given

the opportunity to fairly present evidence, offer arguments, and develop the record.”

Tun, 485 F.3d at 1025, citing 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.10(a)(4).

To establish a due process violation, Gutierrez “must demonstrate both a fundamental

procedural error and resulting prejudice.” Kipkemboi v. Holder, 587 F.3d 885, 890

(8th Cir. 2009). Prejudice requires “a showing that the outcome of the proceeding

may well have been different had there not been any procedural irregularities.” Tun,

485 F.3d at 1026.

Gutierrez alleges two due process violations. This court reviews these “de

novo, as the question of whether an immigration hearing violates due process is a

purely legal issue.” Bracic v. Holder, 603 F.3d 1027, 1032 (8th Cir. 2010).

At the close of testimony, the judge stopped Gutierrez’s attorney from

proposing a particular social group. Gutierrez claims this deprived her of her right

to counsel, violating the Due Process Clause. Even if this were a fundamental

procedural error, she has not demonstrated any resulting prejudice. The judge

analyzed Gutierrez’s asylum claim based on her membership in the social groups of

family, the family of police officers, and opposition to gangs. On appeal, Gutierrez

claims that her attorney would have proposed that she was a member of the particular

social group of people who oppose cartels. In her brief to the BIA, however,

Gutierrez notes that opposition to gangs and opposition to cartels are “similar”

groups. She has not articulated how her proposed social groups would have changed

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the outcome of the proceeding. Without a showing of prejudice, the judge’s socialgroup

ruling is not a due process violation.

Gutierrez also claims the immigration judge violated her due process rights by

repeatedly questioning her about her failure to report to police the crimes she

witnessed, exhibiting a clear bias. Immigration judges shall question witnesses and

develop the record. 8 C.F.R. § 1003.10(b) (“Immigration judges shall administer

oaths, receive evidence, and interrogate, examine, and cross-examine aliens and any

witnesses.”). The judge’s questions whether Gutierrez reported these crimes and how

police respond to reports were relevant to the persecution inquiry. See Shaghil v.

Holder, 638 F.3d 828, 834 (8th Cir. 2011) (“‘[P]ersecution’ is a harm that is ‘inflicted

either by the government of [a country] or by persons or an organization that the

government was unable or unwilling to control.’”) (second alteration in original).

Gutierrez claims, however, that the questions show “a judgment call against” her.

However, judgments or hostility against a party are typically insufficient to prove

bias. A judge’s opinion based on “facts introduced or events occurring in the course

of the current proceedings” and judicial remarks demonstrating hostility to the parties

support a finding of bias when “they display a deep-seated favoritism or antagonism

that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540,

555 (1994). Gutierrez has not alleged the judge formed an opinion of her based on

anything outside the record. The judge’s conduct here does not show a deep-seated

favoritism or antagonism that precludes fair judgment. No violation of due process

occurred.

III.

Gutierrez presents two other arguments: the agency failed to consider her

eligibility for humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii); and her

counsel was ineffective in not presenting evidence of her membership in the social

groups of Mexican females and females unable to leave domestic relationships.

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This “court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§ 1252(d)(1). “Failure to raise an issue before the agency constitutes a failure to

exhaust administrative remedies and deprives this court of jurisdiction to hear the

matter.” Ixtlilco-Morales v. Keisler, 507 F.3d 651, 656 (8th Cir. 2007). Gutierrez

did not seek humanitarian asylum before either the immigration judge or BIA. She

also raises the ineffective assistance claim for the first time on appeal. Because she

did not exhaust all administrative remedies, this court lacks jurisdiction over these

claims.2

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2The motions to supplement the record and to strike references in a brief are

denied as moot.

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The petition for review is denied.