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Juarez-Coronado v. Barr

United States Court of Appeals, Eighth Circuit

March 29, 2019

Oralia Juarez-Coronado, now known as Oralia Magali Marroquin Petitioner
v.
William P. Barr, Attorney General of the United States[1] Respondent Immigration Law Professors Interested party - Amicus on Behalf of Petitioner

          Submitted: October 16, 2018

          Petition for Review of an Order of the Board of Immigration Appeals

          Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

          KELLY, Circuit Judge.

         Oralia Magali Marroquin, formerly known as Oralia Magali Juarez-Coronado, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because we conclude that the BIA's decision was supported by substantial evidence, we deny the petition for review.

         I

         Marroquin is a citizen of Guatemala and is a member of the Mam ethnic group. She entered the United States with her minor daughter on September 25, 2014. After Marroquin was placed in removal proceedings, she sought asylum, withholding of removal, and CAT relief. She claimed that if she were returned to Guatemala she would be persecuted on account of her race, nationality, and membership in the proposed particular social group of Guatemalan women who are unable to leave a domestic relationship.

         At a hearing before an immigration judge (IJ), Marroquin testified that she had suffered domestic violence at the hands of her daughter's father, Melvin, and feared that if she were returned to Guatemala, Melvin would hurt her and take away her daughter. Melvin lived with Marroquin in her family home between 2009 and 2014. During this time, Melvin beat Marroquin approximately 14 times, including when she was pregnant with their child. Over the course of their relationship, Melvin strangled her twice, once to the point where she could not breathe, and raped her four times.

         Marroquin told Melvin to leave in May 2014, but he returned to the house many times, asking her to forgive him and get back together with him. On one occasion in July 2014, Melvin threw her on the ground and attempted to take her clothes off, but he ran away after Marroquin's father and sister-in-law came home. On July 28, after this incident, she filed a police report. A judge issued a restraining order and told Marroquin that it was valid for six months. After the judge issued the restraining order, Melvin continued to come over to the house. If he found Marroquin alone, he would beat and threaten her. He told Marroquin that if she sought help from the police and he was sent to jail, upon his release he would come looking for her and try to kill her. She called the police once, but although they came to look for Melvin they could not find him. She did not call the police again or go back to the judge that issued the restraining order. Marroquin and her daughter left for the United States in September 2014.

         The IJ denied Marroquin's requested relief, finding that Marroquin's testimony was not credible and, in the alternative, that she could not establish eligibility for asylum or withholding of removal because she could not show that the Guatemalan government was and would be unable or unwilling to protect her from Melvin. The IJ also concluded that Marroquin's CAT claim failed for the independent reason that she could not establish that the Guatemalan government would acquiesce to her torture if she were returned to Guatemala. Marroquin appealed to the BIA, and the BIA affirmed.

         The BIA agreed that Marroquin's claims for asylum and withholding failed because she could not show that the Guatemalan government was and would be unable or unwilling to protect her against Melvin, noting that she successfully acquired a restraining order and that the one time she called the police they came to look for Melvin but could not find him. The BIA also upheld the CAT denial on the same grounds relied upon by the IJ. The BIA expressly declined to reach the issue of credibility.

         II

         On appeal, Marroquin argues that the IJ erred in her credibility determination and in denying all relief on the merits. "[B]ecause the BIA did not consider the IJ's credibility findings, that issue is not properly before us." Njong v. Whitaker, 911 F.3d 919, 922 (8th Cir. 2018). And we will not review any claim for relief based on Marroquin's purported fear of persecution on account of her Mam ethnicity, because it was not raised before or considered by the BIA. See Martinez Carcamo v. Holder, 713 F.3d 916, 925 (8th Cir. 2013). Accordingly, we review only the determination that Marroquin failed to establish past persecution or a well-founded fear of future persecution on account of her membership in a proposed particular social group of Guatemalan women who cannot leave a relationship and the denial of CAT relief.

         "We review the BIA's decision, as it is the final agency decision; however, to the extent that the BIA adopted the findings or the reasoning of the IJ, we also review the IJ's decision as part of the final agency action." Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir. 2008). "When reviewing the BIA's factual determinations, we employ the deferential 'substantial evidence' standard." Njong, 911 F.3d at 922 (quoting Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004)). Under that standard, "we must affirm the BIA's factual decisions unless, after having reviewed the record as ...


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