UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Wu Z, SAN ANTONIO, SUITE 750
EL PASO, TX 79901

Past) ch Norte
Rlvas, LJnda 1123915
131/ Rio Grande
E1 FASO, TX 79902

IN THE MATTER OF FILE- DAT
CUTIERRE EMILIO

UNABLE TO FORWARD 7 NO ADDRESS PROVIDED

 

Jul 19, 2017

CHED Is A COPY OF THE DECISION OF THE IMMIGRATION THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN an CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APFEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OF THE CLERK

5107 Leesburq P1ke, Suite 2000

FALLS CHURCH, VA 22041

   

ATTACHED IS A CO.Y OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOFEN IS FILED IN ACCORDANCE
WITH SECTION 242E (3) OF THE IMMIGRATION AND NATIONALITY ACT, U.S.C.
SECTION 1252mm (3) IN DEPORTATION PROCEEDINGS 0R SECTION 240m) (67,

8 UTS.C. SECTION 1229ar61 1N REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
To REOPEN, YOUR MOTION MUST DE FILED WITH THIS COURT:

IMMIGRATION COURT
700 E. SAN ANTONIO, SUITE 750
EL PASU, TX 79901

OTHER:

 



CLERK
IMMIGRATION COURT FF
Cc: OF THE CHIEF COUNSEL
11541 MONTANA AVE, STE, 0
EL PASO, TX, 79936

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
700 EAST SAN ANTONIO AVENUE, SUITE 750
EL PASO, TEXAS 799m

IN THE MATTER OF: IN REMOVAL PROCEEDI

 

GUTIERREZ-SOTO, Emilio (Lead); FILE NO.:

GUTIERREZ-SOTO, Oscar Emilio (Rider)

Respondents

DATE: JULY 19, 2017

 

CHARGE: immigrant 7101 in possession ofa valid entry
dacumem at the time of application for admission

APPLICATIONS: (1) Asylum under INA 203;
(2) Withholding of Removal under INA 241mm; and
(3) Protection under Article 3 of the United Nations Convention Against

 

Torture
ON BEHALF OF THE RESPONDENTS: ON BEHALF OF THE GOVERNMENT:
Linda Yzaela Rivas, Esquire Stephany Miranda, Assistant Chief Counsel
Peso Del Norte Department of Homeland Security, ICE
1317 Rio Grande 1154] Montana Avenue, Suite 0
El Paso, Texas 79902 El Paso, Texas 79936

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE
1. Procedural History

Emilio Gutierrez-Soto ("lead respondent") and his son, Oscar Emilio GutierrczASOto
("rider respondent") (collectively "the respondents") are natives and citizens ofMexico, Exit. 
On July 8, 2008, the Government personally served the respondents with Notices to Appear
alleging therein that the respondents: 1) are not citizens or nationals of the United
States; 2) are natives and citizens of Mexico; 3) attempted to enter the United States at the
Antelope Wells Border Crossing Station, in Columbus. NM, on June 16, 2008; and 5) did not
then possess or present a valid immigrant visa, reentry permit, border crossing identification

I Both the lead renord ofpraceeding and the rider record ofproceeding contain on Exhibit The rider respondent's
record of only conlalns one exhibitithe rest of the exhibits in this matter can be round in the lead
respondent's record In both cases, Exhibit is a Notice to Appear.

 Emilio (Lead)
Oscar Emilio (Rider)

card, or other valid entry document. Id. Accordingly, the Government charged the respondents
with inadmissibility pursuant to Section of the [migration and Nationality
Act Id. Jurisdiction vested and proceedings commenced when the Government filed
the lead respondent's NTA with the Court on July 22. 2008 and subsequently filed the rider
respondent's NTA on July 24, zoos. Ia; see 8 can 

On August 11, 2009, the lead respondent's attorney, Mr. Carlos Specter, filed a motion to
consolidate the lead respondent's proceedings with the rider's. The Court granted the motion.
During the same hearing, the lead respondent, through counsel, admitted the allegations and
conceded the charge contained in the Exh. 1. Based on the lead respondent's admissions
and concession, the Court found removability established as charged.3 Because the respondent's
counsel declined to designate a country for removal, the Court designated Mexico. In lieu of
removal, the respondents' counsel submitted a Form 1-589, Application for Asylum and for
Withholding of Removal Exh. 2A. The Court then continued proceedings to allow
time for the respondents' background checks.

On October 27. 2009, the respondents appeared for their scheduled master calendar
hearing, represented by counsel. The Court confirmed that background checks had been
completed and then reset the case for an individual hearing.

On January 21, 2011, before questioning on the merits of the lead respondent's asylum
claim, the respondents, through counsel, requested a closed hearing. The Court granted the
respondents' request, citing 8 C.F.R. 1003.27. The Court then proceeded to review the
submitted exhibits with the parties, hearing objections and making rulings on the admissibility of
certain documents. After reviewing the evidentiary record, the Court continued the matter.

On March 12, 2012, the respondent's attorney, Mr. Carlos Specter, submitted a motion to
withdraw as counsel from the respondents' case, citing irreconcilable differences and a conflict
ofinterest. The Court granted the motion on March 28, 2012.

On October 2012, the lead respondent appeared for his scheduled removal hearing,
accompanied by new counsel, Anomey Jessica Anna Cabot. The Court confirmed with counsel
that pleadings had previously been taken and that applications had been filed in the respondents'
case. Thereafier, the Court scheduled the matter for an individual hearing.

On May 15, 2013, the respondents' attorney submitted a motion for substitution of
counsel, requesting that Attorney Gabriela Contreras be allowed to act as the new counsel of
record. The Court granted the motion on May 20, 2013. Thereafier, Attorney Gabriela
Contreras submitted a motion to withdraw with this Court. The motion ms granted on April 24,
2015.

2 During this hearing. counsel for the DHS indicated that the lead respondent, through counsel, had previously
admitted the factual allegations and conceded the charge ofremovability on September is, 2003. The Cum does not
have record ofthesc pleadings.

3 On September 4, 2003, the rider respondent's counsel admitted the factual allegations and conceded the charge or
removahility contained in the NTA. The respondent was not present for pleadings, as his presence had been waived

GUTIERRELSOTO, Emilio (Lead)
Oscar Emilio (Rider)

On December 3, 2015, the lead respondent appeared telephonically with his new counsel,
Linda Yr Rivas. The respondents' attorney requested a continuance, and the Court granted the
request. Before concluding proceedings, the Court notified the respondents' counsel that a
request to the Department of Homeland Security for prosecutorial discretion would
have to be made by March 2, 2016. The Court then oontinued the matter for a master calendar
hearing, which was held on June 2, 2016. On that date, the Court continued proceedings to an
individual merits hearing.

On November 14, 2015, the respondents appeared, represented by Ms. Linda Rivas, for
their individual merits hearing. Before the questioning began, the parties submitted a joint
motion to terminate proceedings without prejudice. Both parties stated that they preferred that
the respondents' 1-589 be adjudicated by the Citizenship and Immigration Service
rather than before the Court. The Court denied the joint motion, finding it
inappropriate to relinquish jurisdiction over the respondents' removal proceedings. Thereafier,
the Court swore the lead respondent to the contents of his application, and testimony was taken
in support of his applications for relief

In order to allow more time for testimony, the Court continued proceedings to December
7, 2016. Upon completion of testimony, the case was adjourned for the receipt of closing
statements from each party, Atter receiving the closing statements, the Court continued
proceedings to July 13, 2017, stating that it would issue its written decision on that date. The
Court's decision now follows.

II. Statement oprplicahle Law
A. Burden or Proof and Credibility

Because the applicant initially filed his Form [>589 afier May 1 l, 2005, the REAL ID Act
uf2005, Div. B, Pub. L. No. 109 13, 119 Stat. 23], 305 (codified in pertinent parts at 8 U.S.C.
1229a(c), INA 240(c) (forms of relief other than asylum) and U.S.C. 1158(1)), 
208(1)) (asylum)) (the REAL 1D Act), governs these proceedings. Mailer qu-Y-G, 24 
Dec. 260. 262 (BIA 2007), Matter ofS-B-, 24 Dec. 42, 45 (BIA 2006) The applicant has
the burden of proof on the applications for relief. INA 

Consequently, the applicant's credibility may, standing alone, determine the outcome.
The applicant must testify in detail, plausibly. and consistently. INA 
The applicant should satisfactorily explain any material discrepancies or
omissions. The Board has consistently applied the
REAL ID Act's credibility provisions, noting that they "were chosen because they were
identified in case law and therefore would help establish a uniform standard for credibility." J- Y-
C, 24 Dec. at 262, 263-64 (citation and internal quotation marks omitted),

The Court may grant an application solely on the basis of credible testimony, without
further corroboration. INA But the Court will do this only if
it is satisfied that the applicant's "testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate" that the applicant is eligible for the reliefsought. INA 240(c)(4)(l3),

GUTIERREZVSOTO, Emilio (Lead)
comma--sore, Oscar (Rider)

In determining whether the applicant has met the burden of proof, the Court
"may weigh credible testimony along with other evidence of recor INA 
When the Court determines that the applicant should provide evidence that
corroborates otherwise credible testimony, "such evidence must be provided unless the
[respondent] does not have that evidence and cannot reasonably ohtain that evidence." 



In making credibility determinations. the Court must consider the totality of the
circumstances and all relevant factors. INA The Court "may
base a ciedibility determination on demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility ofthe applicant's or witness's account." INA 



[The Court may also consider] the consistency between the applicant's or
witness's written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant's claim.

INA The Court may also consider any other factor relevant to
credibility. INA 

B. Asylum under Section 208 of the INA

In order to qualify as a refugee, an applicant must demonstrate past persecution or a
well-founded fear of persecution on account of one of the five statutory reasons. which include
race, religion, nationality, membership in a particular social group, or political opinion. INA
101(a)(42); ORR. The persecution or fear cfpersecuticn may be the result
of one reason or from a combination. Office of the United Nations High Commissioner for
Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 166 (1992)
[hereinafter Handbook]; see also Girma v. INS, 283 F.3d 664, 667 (5th Cir. 2002) ("The
evidence presented, however, must compel a reasonable fact-finder to conclude that the harm
suffered by an applicant was motivated, at least in part by, a protected ground") (citing ija v,
INS, 175 F.3d 732, 736 (9th Cir. 1999) (en banc)).

The applicant must provide some evidence, direct or circumstantial, that the persecutor
was or would be motivated to persecute because of the victim's actual or imputed status or belief
(not the persecutor's). INS Va Elias-Zacarias, 502 US. 473 (1992); Girma, 283 F.3d at 657.
However, for applications filed on or afier May 11, 2005, the REAL ID act applies and an
applicant must prove that at least one of the five statutorily protected grounds was "at least one
central reason" for the fear of persecution. Matter an-B-N-, 24 MN
Dec. 208 (BIA 2007)

GUTLERREZVSOTO, Emilio (Lead)
GUTIERREZ-SOTO. Oscar Emilio (Rider)

An alien may qualify as a refugee either because he has suffered past persecution or
because he has a well-founded fear of future persecution 8 C.F.R, 1208.130>>. The source of
the persecution must be the government or forces that the government is unwilling or unable to
control. Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992)

C. Withholding Under Section 241mm or the INA

An applicant for withholding must Show that his "life or freedom would be threatened in
that country because of the alien's race, religion, nationality, membership in a particular social
group, or political opinion." INA This requires the applicant to demonstrate that
"it is more likely than not" he would be subject to persecution if required to return to his native
land, a more stringent standard than the "well-founded fear" standard required for asylum. INS
v. Stevie, 467 U.S. 407, 429-30 (1984). This standard of proofis harder to meet than the "well-
founded fear" requirement for asylum. INS Cardozo-Fameca, 480 U.S. at 448750. If the
Immigration Judge grants withholding of removal, the applicant may not he returned to the
country where he would suffer persecution INA Unlike asylum, once an alien
establishes that he qualifies for withholding of removal relief' is mandatory. Shaikh Holder,
588 F. 3d 861, 364 (5th Cir 2009).

An alien convicted of 2 "particularly serious crime" is also ineligible for withholding of
removal. Aggravated felony convictions, where the conviction resulted
in a sentence of at least 5 years of imprisonment, are per se particularly serious crimes in the
withholding context. 241(b)(3).

1). Protection under the Convention Against Torture

Article 3 of the Convention Against Torture forbids an agent of the United
States government to remove an alien to a country where it is "more likely than not" that she
would be tortured. 8 one United Nations Convention Against Torture and
Other Forms of Cruel, lnhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec, 10, 1984, (1A. Res. 39/46, Annex, 39 UN. GAOR Supp. No. 51. at 197, 
Doc. (1984) (entered into force June 25, 1987; for the US. on Apr. 18, 1988).

Unlike an applicant for asylum or withholding of removal under INA 241mm, an
applicant for protection under CAT is not required to demonstrate that he would he tortured on
account of race, religion, nationality, membership in a particular social group, or political
opinion. Matter 22 Dec. at 131 1; Matter ofJ-E-, 23 MM Dec. 291.

An applicant who establishes that he is entitled to CAT protection shall be granted
withholding of removal unless he is subject to mandatory denial of that relief, in which case he
shall be granted deferral of removal. 8 can. An applicant is
subject to mandatory denial of withholding of removal under CAT if he participated in the
persecution of others, if he was convicted of a particularly serious crime, if there me serious
reasons to believe he committed a serious nonpolitical crime outside of the United States, or if
there are reasonable grounds to believe he is a danger to the security of the United States. Id,
see also INA th, an alien's criminal convictions, no mattcr

GUTIERREZ-SOTO, Emilio (Lead)
Oscar Emilia (Rider)

how serious, are not a bar to deferral of removal under CAT, See 8 C.F.R. Matter
afGrAr, 23 Dec. at 368.

If an Immigration Judge determines that the alien is subject to a ground of "mandatory
denial" set forth in INA then the alien's application for withholding of removal
pursuant to CAT shall be denied. 8 C.F.R. (3). If the evidence indicates the
applicability of one or more of the grounds for denial of withholding of removal enumerated in
the Act, the applicant shall have the burden of proving by the preponderance of the evidence that
such grounds do not apply. Id 

Deferral of removal offers only limited relief. If the Court grants deferral, DHS may not
remove the applicant to a country in which it is more likely than not that he would he tortured.
DHS may, however, at any time, file a motion to schedule a hearing to consider whether deferral
should be terminated. Id. The Court shall reopen the proceedings if DHS presents
relevant evidence that was not presented at the previous hearing. Id. Upon reopening, the Court
shall conduct a hearing and make a dc novo determination of the alien's eligibility for deferral.
Id. In addition, deferral may be terminated, at any time, based on diplomatic assurances
forwarded by the Secretary of State. Id. 

To be protected under CAT, the applicant must demonstrate that, if removed, it is more
likely than not that he would be tenured by. or with the acquiescence of, government officials
acting under the color of law in the country of removal. Hakim v, Holder, 628 151, 155
(5th Cir. 2010) (citing 8 C.F.R. Thus, in evaluating CAT claims, the Court must
examine whether the applicant established that:

(1) He or she will he tortured;

(2) By, or with the acquiescence of government officials;

(3) Acting under the color of law;

(4) It is more likely than not that the applicant will face harm based on the
aforementioned elements.

See 8 C.F.R. The Court must first examine the probability of each of the first three
factors listed to determine whether the applicant established the "more likely than not" threshold
required to demonstrate CAT eligibility.

1 . Torture

Torture is defined as "any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person." 8 CFR. In order to constitute
tenure, mental pain or suffering must be "prolonged." Id. It also must be
caused by or resulting from intentional or threatened infliction of severe physical pain or
suffering, threatened or actual administration or application of mind altering substances or
similar procedures, or threatened imminent death. Id. These causes or results can be directed
towards the applicant or another. Id. Torture is an "extreme form of cruel and inhuman
treatment" and does not include pain or suffering arising from lawful sanctions. Id

GUTIERREZSOTO, Emilio (Lead)
GUTIERREZ-SOTO, Oscar Emilio (Rider)

(3). Lawful sanctions do not include any sanctions which defeat the object and
purpose Id, 

In order to qualify as tenure, an act "must be specifically intended to inflict harm."
Matter ofJ-E-, 23 Dec, 291, 298 (BIA 2002). Intentional acts leading to a foreseeable harm
as a likely but unintended consequence are insufficient to constitute torture. Iti The torture must
be inflicted for one of the following purposes: (1) obtaining information or a confession; (2)
punishing for an act committed or suspected of having been committed; (3) intimidating or
coercing; or (4) "any reason based on discrimination of any kind." 8 

2. "willful Acquiescence" of the Government

The Convention Against Torture "requires 'a public official' or 'person acting in a public
capacity' to 'inflict,' 'acquiesce,' or 'give consent' to the torture." Tamara-Gomez v. Gonzales,
447 F.3d 343, 350 (5th Cir. 2006). For an act of torture to give rise to a cognizable CAT claim,
the torturous "act must be dlrected against a person in the offender's custody or physical
control." Iti Additionally, the torturous act must be inflicmd by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an
official capacity. Ontunez-Tursias v. Ashcroft, 303 F.3d 341, 35354 (5th Cir. 2002); 8 C.F.R.
A public official's "acquiescence" to torture "requires that the public official,
prior to the activity constituting torture. have awareness of such activity and thereafier breach his
or her legal responsibility to intervene to prevent such activity." 8 C.F.R. 

The Fifih Circuit addressed the meaning of "acquiescence" in OnturlezeTurrios, 303 F.3d
at 34]. It found that the proper inquiry for "acquiescence" is "willful blindness" or whethcr
public officials "would turn a blind to torture." [d at 354-55. The requisite "acquiescence"
is satisfied by a government's willful blindness of torturous activity. Hakim, 628 F.3d at 155
(citing OntunezeTursios, 303 F.3d at 354). willful blindness occurs when "the government
look[s] the other way" and is "at least complicit in whatever happened to [the applicant] . . . and
perhaps then whatever would happen to [the applicant] that might be seen as torture if the
government were aware of the penalties being meted out and took no action to protect the
applicant." Id. at 156 (citing Chen v, Gonzales, 470 F.3d 1131, 1141-42 (5th Cir. 2006)).

3. Under the Color of Law

The Fifih Circuit has held that "an act is under color of law when it constitutes a
"[m]isuse of power, possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law." Garcia v. Holder, 756 F.3d 885, 891 (5th
Cir. 2014). Actions motivated solely by a police officer's personal objectives may still be
enacted "under color of law," when the officer uses his official capacity to further those
objectives. See generally Townsend v. Maya, 291 F.3d 359, 861-62 (5th Cir. 2002); Marmomto
v. Holder, 376 Fed.Appx. 380, 385 (5th Cir. 2010) (unpublished).

Actions taken by subordinate officials, including police officers, can be under the color of
law even when they are contrary to official state policy. Garcia. 756 F.3d at 891. lf an
individual "misuses or abuses his official power" and "there is a nexus between the victim, the

GUTIERREZSOTO, Emilio (Lead)
GUTIERREZSOTO, Oscar Emilio (Rider)

improper conduct, and [the official's] performance of official duties" then the individual is acting
under color of state law. Id; United Stated v. Causey, 185 F.3d 407, 442 (5th Cir. 1999), "If,
[however,] a state officer pursues personal objectives without using or misusing the power
granted to him by the state to achieve the personal aim, then he is not acting under color of state
law." Harris v. Rhodel', 94 F.3d 196, 197 (5th Cir.1996).

Thus. there are three steps necessary in making a "color of law" determination for CAT
eligibility. An individual is acting "under the color of law" it":

(1) The actor holds a position of power with government authority;
(2) He or she abuses/misuses that power;
(3) A nexus exists between the ot'fieial's position and the harmful conduct.

Garcia, 756 F.3d at 891; see also Causey, 185 F.3d at 442; Bennett v. Pippin, 74 F.3d 578, 589
(5th Cir. 1996); Harris Rhodes, 94 F.3d 196, 197 (5th Cir. 1996). There are two additional
steps required under CAT:

(4) The "not must be directed against a person in the offender's custody or physical
control" as required under C.F.R. and

(5) The actor commits an act that qualifies as torture against the victim.4
4. The Applicant's "More Likely than Not" Burden

An applicant for protection under CAT bears the burden of establishing that it is more
likely than not that he would be tortured if returned to the proposed country of removal. 8 C.F.R.
Mailer aerEr, 23 Dec. at 302. In assessing whether an applicant satisfies
the burden of proof, the Court must consider all evidence relevant to the possibility of future
torture, including: (I) evidence of past torture inflicted upon the applicant; (2) evidence that the
applicant could relocate to a part of the country of removal where he or she is not likely to be
tortured; (3) evidence of gross, flagrant, or mass violations of human rights within the country of
removal; and (4) other relevant information regarding conditions in the country of removal. 8
oak. 1208i16(c)(3); Matter ofGrAr, 23 Dec. 366, 368 (BIA 2002) (finding that the
applicant met his burden where he proved that based on his religion, ethnicity, long stay in the
United States, his drug conviction, and the harsh conditions in Iranian prisons, he would more
likely than not face torture if retumed to Iran).

A pattern of human rights Violations alone, however, is not sufficient to show that a
particular person would be in danger of being subjected to torture upon her return to that country;
specific grounds must exist to indicate that the applicant will be personally at risk of torture.
Matter of SrVr, 22 Dec. at 1313. To meet this burden, an applicant for CAT relief must
establish that someone in his "particular alleged circumstances" is more likely than not to be

The act must adhere to the aforementioned definition ortorture discussed in subsection 1, and it must be inflicted
for one of the following purposes: (I) obtaining or confession; (2) punishing for In not committed or
suspected of having been committed; (3) intimidating or coercing; or (4) "any reason based on discrimination of any
kind." so", lzar lita)(l)

GUTIERREZ--SOTO, Emilio (Lead)
Oscar Emilio (Rider)

tenured in the country designated for removal. Mutter afJ-E-, 23 Dec. at 303-04; Matter of
67A, 23 Dee. at 371-72; Muller 23 Dec. 474, 478-79 (BIA 2002).

Such an analysis should incorporate an evaluation of how the applicant's case compares
to others who are similarly situated and it may provide the Court with a means to analyze the
viability of internal relocation. See Matter of G--A-, 23 Dec. at 371-72 (evaluating the
applicant's claim by considering country conditions in Iran, the documented culture of impunity,
and evidence of harms sustained by individuals who were similarly situated).

Finally, eligibility for CAT relief cannot be established by stringing together a series of
suppositions to show that torture is more likely than not to occur unless the evidence shows that
each step in the hypothetical chain of events is more likely than not to happen. Mailer 
23 Dec. 912, 917-13 (AG. 2006). The applicant must establish that all of the
aforementioned factors will "more likely than not" occur should he return to the country of
removal in order to that relief is merited. 8 C.F.R. 

EvidenceConsidered
A. DocumentaryEvidenee

The Court carefully considered each of the following exhibits, even if not specifically
discussed in this decision:

Exhibit 1: Lead Respondent's Notice to Annex, dated July 8, 2003.5

Exhibit 2: Lead Respondent's Form 1-589, Application for Asylum and for
Withholding of Removal.

Exhibit 2A: Respondents' Submission of Evidence in Support of His Political Asylum
Claim, Withholding of Removal, and Convention Against Torture, Tabs
A-F, received October 31, 2008."

Exhibit2B: Respondents' Second Submission of Evidence, Tabs A-B. received
November 3, 2008.7

Exhibit 2C: Respondents' Third Submission of Evidence, received January 21, 2011_x

3 Seesupru note I.

6 The DHS objected to the foreign documents included in Exhibit 2A. rub c, arguing that they were not properly
authenticated pursuant to C.F.R. 5 1287.6 and alleging that translation errors were apparent in each translated
copy, in response to the DHS's objections regarding authentication, the respondents' counsel argued that 
compliance with the regulntions should not be required, considering the Mexican government would have to
authenticate the documents submitted in support of the respondents' asylum claim. Ultimately, the Court held that,
in the abundance of caution, it would not accept the translations included in Exhibit 2A, Tab c. Later, the Court
curitied that it would disregard all translations In Exhibit 2A. as they appeared to be unreliable.

Additionally, the Conn struck page 123 of Exh, 2A, Tab from the record. Although the DHS objected to Exh. 2A,
Tab o, pp. 154, 168, arguing that original versions of the documents should be provided, the Court held its ruling on
chose objection in obeyuncc. Presently, the Court finds that these documents are admissible.

7 ins Cour! declined to give evidentiary weight to Exh. 213, pp Iooros.

GUTIERRFZ-SOTU, Emilio (Lead)
GUTIERREZ-SDTO. Oscar Emilio (Ride!)

ExhibitZD: Respondents' Fourth Submission of Evidence, Tabs A-D. received
December 20, 2010.9

Exhibit 2E: Respondents' Fifih Submission of Evidence, received December 28,
2010.1"

Exhibit 2F: Respondents' Motion in Response to Government's Request for
Production of Original Publications; Authentication of Foreign Documents
and Revised Translations, received January 28, 2011.

Exhibit 2G: Respondents' Supplemental Submission of Evidence in Support of His
Asylum Claim, received October 14, 2016.

ExhibitZl--l: Respondents' Termination Request, addressed to the Offioe of the
Principal Legal Advisor, U.S. Immigration and Customs Enfotcement,
received December 7, 2016,

Exhibits: Rider Respondent's Form 1-589, Application for Asylum and for
Withholding of Removal.

Exhibit 4: Department of Homeland Security's Background Submission, Tabs A-
UU, received November 17, 2010

Exhibit4A: Department of Homeland Security's Supplemental Background
Submission, Tabs received December 21, 2010.

Exhibit 43: Department of Homeland Security's Background Submission for 2016,
received September 28, 2016.

 

The Court was unable lo locate the respondent's original submission during the January 21, 20! removal hearing.
Accordingly, the Court received a duplicate copy ofthe original submission, and the copy was marked as Group
Exhibit 2c. Pages 1--3, ii-iz, 17--30, 3345, and ss-xs were withdrawn from Exit, 2c. because all were duplicates
of previously submitted evidence. Further, statements made by Carlos Speetor, found on pages 5 and 9 of Exit. 2c
were stricken from the record, aiter the Court infomed ML Spector that he could not be both a witness and the
attorney otreeotd in the respondents' ease.

Additionally, the DHS objected to Exh. 2c, p, be, arguing that there was insutticient backgound information on
The Court chose not to accept Exh. 2C, p. 69, stating that the information could later be nbmined
through expert testimony. The DHS also objected to pages 74, ion, and 101; however. the Court accepted these
documents into the record, stating that they would be given limited evidentiary weight.

The respondents' counsel indicated that three DVDs were submitted with Exh. 2D, The Court was unable to
immediately locate the however, once they were found. the Court stated that it would not accept them into
the record and returned them to the counsel Additionally, alter the Miss objection, the respondents'
counsel withdrew page 198 ofTab and gas 276, 280, 234 orTab from the record. The DHS also objected to
pages 285291 of Tab c, citing the eredi lity of the media source, and the Court held that it would keep these
documents in the evidentiary record but only afford them limited evidentiary weight. The Court also determined
that it would afford no evidentiary weight to Exh. 2D, Tab D, pp, 349457 and only "appropriate weigh to Exh.
20, Tab D, pp. 353-54, 334-37
Although the overall admissibility of Exh. 213 ms originally held in abeyance, the Court will admit the exhibit
into the evidentiary record. Nevertheless, he Court does not admit pages 6-9 and l4-l9, as they were previously
withdrawn horn the record.

 

10

GUTIERREZVSOTO, Emilio (Lead)
Oscar Emilio (Rlder)
E. Testimonial Evidence

The lead respondent, the rider respondent, and Professor Molly Malloy testified in
support or the lead respondent's applications for relief Each individual was crossexamined by
the DHS and questioned by the Court. All testimony was carefully and thoroughly considered by
the Court. The summary ofthe testimony is as follows:

1. Testimony ofthe Lead Respondent
u. Dlrect Examination

The lead respondent (hereinafier "the respondent") testified that he is a single, 53-year-
old native and Citizen of Mexico, born in Nuevo Casas Grandes, Chihuahua, He stated that he
worked as a journalist for El Diaria in Ascension, Chihuahua from 1999 until June 2008. and,
for at least part of his tenure, the respondent's direct supervisor was Jose Martinez Valdez. In
that position, the respondent worked mainly as a correspondent for El Diario, but his duties
ranged from reporting on news events to administrative office tasks.

According to the respondent, El Diario was the only newspaper operating in Ascension, a
town with a population of about 20,000 people. The respondent testified that he was the only
reporter working out of the Ascension office, mainly because his office was relatively small, but
also because he did not need assistance covering his assigned area. The respondent stated that he
had freedom to decide what to report on, and he routinely reported on social events, police
events. and political events.

Once crime began to increase throughout Mexico, the respondent testified that the

company operating the newspaper incorporated policy changes in order to protect individuals
writing about potentially "delicate" issues. As a result of these policy changes, the respondent's
name ms frequently left off the byline of the articles he authored.
The respondent testified that he wrote an article titled, "Demands to Stop lmpumty,"H
dated February 4, 2005. In that article, the respondent criticized the Mexican military's takeover
ofa hotel in Puerto Palomas named La Estrella. Before he wrote the article, the respondent 
directly contacted by the town's mayor, Estanislao Sanchez Bujanda ("the mayor"). According
to the respondent. the mayor provided the respondent with information regarding the military
takeover of La Estrella and requested that he report the incident in the news. The respondent
testified that he did not look into the veracity of the mayor's claims because the event was
known to the community. He also stated that the mayor was a credible person within the
communitywverall, he trusted the mayor to tell the truth,

As previously noted, on January 1 l, 201 l, the Court held that it would not accept the translations included in Exh.
2c into the record, as they appeared to be unreliable. New translations ofthc documentary evidence were submitied
to the Court on January zx, 201 l. Exh. 2r. Notably, the respondents' counsel relied on inadmissible pans or the
record in the questioning of the lead respondent, but the Court notes that the proper muslations are included in
Exhibit 2F, which was entered into the evidentiary record on November 14, 2015.

]l

GUTIERRH-SOTO. Emilio (Lend)
ounamzsoro, Oscar Emilio (Rider)

Afier collecting infomation from the mayor, the respondent wrote the article and
submitted it to his editors. According to the respondent, his editors decided to leave his name off
of the byline.

The respondent testified that, between five and eight days afier the article was published,
he received a call from a Lieutenant Colonel in the Mexican military, Alfonso Martinez Piedra
("Lieutenant Colonel" or 'the Colonel"). During the GBP211, the Lieutenant Colonel informed the
respondent that a superior omeer wanted to meet him. The respondent replied that he was
unavailable, but the Lieutenant Colonel did not give him a choice, stating, "Either you come see
us, or we come get you,"

The respondent testified that he agreed to meet the military men, and they instructed him
to go to El Miami Hotel, in downtown Ascension. The respondent, traveling with his 12-year-
old son, intended to meet the men in the hotel's restaurant between 7:00 and 8:00 pm, but he
was not allowed to enter the restaurant upon his arrival. Instead, the Lieutenant Colonel blocked
his path and re-directed the respondent to a pick-up truck, ordering him to wait there.
Meanwhile, the respondent's son remained in the respondent's vehicle, a few yards away.

The Lieutenant Colonel then informed another man who the respondent later identified as
General Alfonso Garcia Vega ("the General") that the respondent had arrived. The respondent
testified that the General remained in the pick-up truck for a few minutes before getting out and
putting on his military shirt. As the General exited the vehicle, he began to insult the respondent,
citing the investigative work he had done for El Diaria. The respondent claims that the General
exclaimedbitch that's writing these stupidities'!" The respondent
denied that he had reported "stupidities" and attempted to explain how he had obtained the
statements that were published in the article. The General, however, was very angry and said,
"You have written three articles, and there won't be a fourth one?"

According to the respondent, he was surrounded by several men who were armed. He
testified that he was forced to apologize after the General accused him of writing "stupidities,"
exclaimed that the Secretary of Defense was "very upset," informed the respondent that they had
"a lot of work to do in Chihuahua," and warned that the respondent "would not write another
article."

When asked if any specific threats were made, the respondent stated that the General
asked him, "Why don't you write about drug traffickers?" Afler the respondent told the General
that he did not write about traffickers because they are dangerous, the General allegedly replied,
"You don't write about them, but you write about us. We. who get rid of the drug traffickers. I
feel like getting you in my truck to take you to the mountain, so you can become awe of our
workthe drug traffickers." The respondent testified that, at this moment,
the soldiers began to surround him. practically pinning him against the General's truck.
Although he was released unharmed, the respondent speculated that the General allowed him to
leave only because a few people from the community passed by and greeted him.

'1 Although the respondent claims that he wrote three separate articles regarding military matters, the record only
contains one article: "Demands to Stop impunity." Exh. 2A at 162.

12

GUTIERRELSDTO, Emilio (Lead)
GUTIERREZSOTO, Oscar Emilio (Rider)

As soon as the General released him. the respondent claims that he returned to his own
pick-up truck, where his son was waiting, and drove around the town until he was able to contact
his boss, Jose Martinez Valdez. When he finally reached Jose by phone, the respondent
explained the encounter with the military officers. According to the respondent, Jose suggested
that he calm down and determine how to handle the incident on the following day.

The day afier the encounter, the respondent's newspaper released an article titled,
"Members of the Military Threaten Reporter's Life." Exh. 2F at 13. According to the
respondent, this article was written about him, by the editorial staff at El Diario. He stated that
he chose to take a risk and allow his newspaper to publish the article, because he had suffered
such humiliation, and he morally could not allow the military "to wipe [his] human identity and
[his] morals."

instead of reporting this incident to the police, the respondent filed a complaint with the
National Commission ofHuman Rights, Mexico ("Human Rights Commission"). The following
day, he also filed a report with the state prosecutor's office. According to the respondent, atier
he spoke with the prosecutor, he was told that the office would investigate the case, but he never
received a response. The Human Rigits Commission. however, conducted an investigation and,
afier several months, proposed a conciliation agreement to be entered into by the respondent and
the Secretary of National Defense. The respondent testified that he did not know the details of
the agreement, but he consented to it anyway, concluding the matter,

In the three years that followed the Februan/ 2005 incident the respondent did not write
about the Mexican military or the Mexican government. Instead, the respondent continued to
write about politics, police, and spons, taking special care to avoid reporting on military activity.
Although the respondent was not contacted or approached by anyone in the Mexican military for
three years, he testified that he was unable to live normally because he was afraid of
encountering the military. The respondent testified that, between 2005 and 2008, the Mexican
government initiated a campaign called, "The Battle Against Drugs." During this campaign, the
military began searching homes, ranches, and hotels, increasing their presence fltroughout the

country.

on May 5, 2002, the respondent had a second encounter with the Mexican military, He
testified that he was at home with his 14-year-old son, when he heard aloud noise outside of his
home, a little afier midnight. The respondent went to his living room to see what was happening,
and he saw a large group of military officers outside of his home. He testified that the group,
consisting of about 50 people, kicked his front door until they knocked it downr'3 They then
entered the respondent's home and pointed their weapons at him as he stood in his underwent.
The respondent stated that, although he identified himself as a journalist for El Diario, he was
forced to the ground. According to the respondent, the military officers told him, "We are
making an inspection, looking for arms and drugs, based on an anonymous report;" however,
they did not present any documents that would allow them to enter or search the respondent's
home.

'3 The respondent testified that, while the search was "very excessive," it was "something that is normal for them 

13

GUTIERREZ-SOTO, Emilio (Lead)
GUTIERREZ-SOTO, Oscar Emilia (Rider)

One man, who the respondent identified as a Lieutenant, instructed the respondent to
report any information regarding criminal activity, noting that the respondent was a good person.
The respondent testified that the Lieutenant gave him a telephone number to call, in the event he
wished to report criminal acts." He also testified that the Lieutenant told him to "behave," and
he interpreted this order as a reiteration and continuation of the threats he had previously
received in 2005.

Immediately after the military officers lcfi his home, the respondent called the police.
According to the respondent, he told the officer about the raid on his home, and he requested
help. The officer told the respondent that were being dispatched to his home, but they
never arrived, The respondent claims that he called the police a second time, but he was told that
"there was an order from high up not to go to [his] house."

The following day, the respondent informed his boss of the encounter. On May 6, 2008,
El Diario released an article titled, "Soldiers Raid Joumalist's Home." The respondent claims
that he provided the editorial board with details of the raid, and that he assisted in writing the
article. .

Additionally. the respondent, once again, filed a report with the state prosecutor's office
and another complaint with the Human Rights Commission. Despite their prompt adjudication
of his previous grievance, the respondent testified that, this time, the Human Rights Commission
took years to respond."

On June 14, 2008, the respondent noticed that he ms being watched. The respondent
speculated that he was being watched by the Mexican military, based on the men's haircuts and
their methods of observing his home. The respondent stated that he noticed the men watching
him throughout the afternoon, so, when it got dark, he lefi to stay the night at a friend's house.
While he ms at the friend's house, the respondent was contacted by Olga Ofelia Aguirre, a local
teacher. The respondent had aprofessional relationship with Olga, stemming from invitations he
received to report on events occurring at the school Where she worked. The respondent stated
that Olga was very nervous on the phone, and she told him that she needed to discuss an urgent
matter. The respondent told Olga where he was staying, and Olga met him there. In person,
Olga told the respondent that he needed to leave town because "they" were going to murder him.
According to the respondent, Olga's family member who worked for a special unit in the military
was allegedly participating in a "project" to murder the respondent. That soldier infomed Olga
about the "project" so that Olga could notify the respondent.

Immediately alter hearing this information, the respondent stated that he went inside his
friends house to get his son. Olga then drove the respondent and his son about 25 kilometers
from Ascension to a ranch that belonged to the respondent's friend. The respondent and his son

The respondent claims that his boss later verified that the telephone number belonged to the military headquarlers
In Nuevo Casas Grandes.

'5 The respondent testified that the National Commission of Human Rights in the United states recognized the event
that occurred in 2008 and concluded that the respondent's constitutional rights had been violated. He was not asked
and he did not elaborate about his communications with this organiration.

l4

GUTIERRFJ-SOTO. Emilio (Lead)
GUTIERREZ-SOTO, Oscar Emilio (Rider)

stayed at the ranch for two nights, until the respondent decided to enter the United States on June
16, 2008.

The respondent testified that he believed it would be difficult to live a peaceful life as a
journalist in any part of Mexico. He also stated that it would be difficult to hide from the
Mexican military, especially considering he is a "public person." The respondent added that he
personally knows four other journalists who have fled Mexico.

According to the respondent, sin *e entering the United States, he has been interviewed by
both national and international publications, and his opinion has been mentioned in several
articles. He also joined two groups that he states "have helped [him] give [his] public opinion":
Friends of Emilio Committee and Alliance, or Alianza.

b, Crass--Examination

During cross-examination, the respondent confirmed that, while he worked for E1 Diaria
in Ascension, he had the authority to decide what to publish in the paper. He stated that he wrote
about six articles or informative notes on a daily basis, for eight years. He further testified that
he started writing articles that dealt with the military in 2004, and he estimated that he wrote at
least five articles about the military in the eight years he worked for El Diarin.

The respondent confirmed that his name was not printed on the El Diario articles that
specifically addressed the military. When asked how the military knew who he was and what he
looked like, the respondent stated that he was identifiable because he was the only reporter in the
area.

Although the respondent stated that the Secretary who worked for him ms never
threatened, General Garcia and Colonel Alfonso Martinez Piedla allegedly did threaten his boss,
Jose Martinez Valdez, in the office located in Nuevo Casas Grandes. When asked to elaborate.
the respondent claimed that the military officers forced Jose to agree to a meeting, during which
they told him that the issues they had had with the respondent were a mistake. Allegedly, this
meeting occurred after the respondent filed a complaint with the Human Rights Commission.
According to the respondent, his boss did not tile 2: report; he did not tell anyone else about the
conversation; and he did not provide an affidavit to the Court.

When asked why the record does not contain all three articles that the respondent
allegedly wrote, the respondent explained that, when he left Mexico for the United States, his
office in Ascension disappeared. Therefore, "it was impossible for [the respondent] to find
newspapers, files or articles." Although the respondent claims that he personally had the most
comprehensive set of flies for El Diaria in Nuevo Casas Grandes, he was not able to collect his
personal belongings or files before he lett for the United States.

The respondent confirmed that he was approached by the mayor of Puerto Paiomas to
write the article titled, "Demand to Stop Impunity." The respondent also recalled that despite
being identified as a source, the mayor ms never threatened, and no one ever came atter the
mayor once the article was published, Further, the respondent stated that he had informed the

15

GUTIERREZVSOTO, Emilio (Lead) -
GUTIERREZ-SOTO, Oscar Emilio (Rider)

mayor of the threats he received in the afiermath of publishing the article. He did not, however,
ask the mayor for protection, nor did the mayor offer any to the respondent

Regarding the raid on his home, the respondent reiterated that he was told by the military
officials that his home was being searched based on anonymous reports of drugs and weapons.
The respondent admitted that his neighbor's home across the street was also searched by military
officers. Although he testified that he did not know this neighbor, the respondent did state that
women and children lived in the bouscr that the neighbors were not journalists, and that the
neighbors had not written any articles about the military. When asked if the raid could have been
normal routine operation, the respondent stated: "It became something normal, because in
Mexico, they started a war against drugs" .Those operations became generalized against all the
people that the military believed could be in an illegal situation." The respondent also testified
that neither of the two military officers he encountered in 2005 were present at the raid in 2008.

The respondent also conceded that Olga Ofelia Aguirre, the teacher who warned the
respondent to leave Mexico, would not be testifying or submitting an affidavit to corroborate the
respondent's claims. He further stated that no one else witnessed the conversation that he had
with Olga, days before he fled to the United States.

Finally, the respondent testified that. with the exception of his short stay at the ranch, he
never attempted to relocate within Mexico, despite the threats he experienced. He also
confirmed that military officers did not look for him at the ranch while he was there Since 2005,
the respondent has not had any Contact with either Lieutenant Colonel Alfonso Martinez Piedra
or General Alfonso Garcia Vega. Additionally, no one has threatened the respondent since his
arrival to the United States in 2003.

c. Rte-Direct Examination

0n re-direct, the respondent stated that, when he worked as a journalist, he spent most of
his time working in the field because he preferred being out in the community over being in his
office He stated that, when he was out in the field, he always wore his credential on the outside
of his clothing, and he traveled in a (nick that had the newspaper logo printed on it.

The respondent also clarified that his boss, lose Martinez Valdez, informed him of his
"intervievf' with the military officers on either February 10 or 11, 2005, one day afler the
"interview? occurred. He stated that, to his knowledge, it was the last time military officials
contacted Martinez Valdez.

When asked about the three articles that General Garcia Vega referred to in Febnlary
2005, the respondent described the tWo articles that are not in the record. He testified that in the
first article' he reported on assaults on nrral roads and the people who had been attacked by
armed men with "military aspects." In the second article, he reported on the military takeover of
La Estrella in Puertc Paloma; however, he clarified that this second article was different than the
article that ms published on February 4, 2005.

16

 Emilio (Lead)
Oscar Emilio (Rider)

According to the respondent, he was only able to submit the February 4, 2005 article
because he had a Copy of it in his house in Mexico. The remaining articles were stored in his
main file at his office in Ascension.

Despite his earlier testimony, the respondent stated that he did contact the police afier the
2005 encounter with the Lieutenant Colonel and the General, Additionally. almough he
previously stated that he did not hear from the state prosecutor afler he filed a report with the
office, on redirect, the respondent claimed that three months afler he made the report, the
prosecutor informed him that the military officers could not be reached,

When questioned about the details of the agreement offered by the Human Rights
Commission, the respondent stated that, although the military had denied that they had been
involved in any incidents, they did ages to accept the proposed Conciliation. Following the
conciliation1 the respondent did not write published articles about the military.

Finally, the respondent testified that, in the month afier the raid on his home, he tried to
avoid encountering military personnel, He said this was a difficult task because military officers
were everywhere. The respondent stated that, after he entered the United States, he did not
return to his home, but he heard from neighbors that military officers were camping on his patio.
He was told that the military officers went to his office after learning of the public statements the
respondent made while he was detained at the El Paso Service Processing Center 

d. RemCmi'erxaminatiun

Upon further questioning by the DHS's counsel, the respondent clarified that, while
neither the mayor of Puerto Palomas nor the local police offered him protection, the Human
Rights Commission did offer him private body guards if he chose to return to Mexico. The
respondent testified that a representative from the Human Rights Commission met with him
personally in El Paso, Texas. In that meeting, the representative proposed protection to the
respondent twice, and the respondent refused both times.

Additionally, the respondent explained that he continued to make public statements from
the by contacting E1 Diariu by telephone. He stated that he made the statements as an
individual affected by the Mexican military, and be indicated that the ensuing publication of his
statements identified where he was being held.

Further, when asked if the threats he received in Mexico ever turned physical, the
respondent replied that they were "just about to get there." He specified that he was the subject
of Verbal abuse which he describe as "very harsh."

2. lie-Direct Examination
Regarding the offer or personal body guards made by the Human Rights Commission, the
respondent testified that the offer was only presented verbally, in the presence of his former

counsel, Carlos Spector; the agreement was never given to him in writing. 'lhe respondent
explained that he never felt that he could accept this offer and return to Mexico, because he

17

 Emilio (Lead)
Oscar Emilio (Rider)

believed the security guards would be the Mexican military. He did not feel that he could trust
the security offered, and he did not believe that this type of protection would have kept him alive
in Mexico.

The respondent confirmed that he did submit a petition to the International Commission
for Human Rights, but that he never received a response, and, to his knowledge, there was no
resolution. He further stated that he did not see a response from the Mexican Human Rights
Commission, so he does not know if one exists.

Examination by the Cowl

The Court first asked the respondent about the efforts he had made to obtain all three
news articles related to military matters that he wrote for El Diario, The respondent stated that
he looked in the main files of the company he used to work for, at the library in Nuevo Casas
Grandes, and in a file in Ascension, all to no avail. In conducting these searches, the respondent
received help from his colleagues and friends; however, the respondent claimed that none of
these people provided affidavits attesting to their involvement in the respondent's case because,
they were worried about their own security.

Next, the Court asked the respondent to explain the connection between the events that
occurred in February 2005 and the 2008 incident that occurred in his home. The respondent
stated that the military may wait several years before taking vengeful action against an
individual. When asked why the military would take so much time, the respondent explained
that any immediate action taken by the military would have been very obvious, making it clear
that they were acting directly against him.

The respondent did confirm that the military officers who threatened him in 2005 could
no longer be located in 2008. The Court questioned the respondent as to why he believed that, in
2008, the same officials (the General and the Lieutenant Colonel) were in power, still looking for
him, and ultimately, deciding to take action against him. In response, the respondent simply
recounted the threats made against him. The respondent conceded that the raids in his
neighborhood were part of a generalized military action. He affirmed that his neighbors across
the street experienced a similar raid on their home, and that they were also told by military
officers that they were being searched for and weapons. When asked if the officers could
have also told his neighbor "to behave," the respondent replied that he could not make an
affirmation on his neighbor's behalf.

The Court also asked the respondent if he believed that the military at large has an overall
conspiracy against him or if he believes that only the senior officers he encountered were
involved in any conspiracy. The respondent replied that "they are going to take as long as it is
needed, and they have enough calmness to be able to act." He further emphasized that General
Garcia Vega interpreted the publication that referenced him directly as a great offense. The
Court specifically asked the respondent to elaborate as to why he believes that a Large portion of
the military is still waiting, this day, nearly a decade later, to exact retribution against him. The
respondent simply stated, "lfl go back to Mexico, I won't live."

18

GUTIERREZ-SOTO, Emilio (Lead)
ourmmz-soro, Oscrr Emilio (Rlder)

when asked if it is normal for an individual who feels threatened or harmed by certain
actors in Mexico to receive attention from several organizations and national commissions, the
respondent stated that it is not normal. He added that he believed the organizations and the
media were motivated to get involved in his case because he was the first journalist to come to
the United States seeking asylum. The respondent agreed that his concerns and accusations were
being investigated. He also stated that the agreement he entered into at the prompting of the
Human Rights Commission settled matters for several years. The Court asked the respondent
why he did not allow the Human Rights Commission to take the same amount of time to
investigate his claims in 2008 as they did in 2005. The respondent testified that he did not have
trust in the organization in 2008, and he saw that his personal security was at risk. In sum, he
believed he was at more risk in 2008 than in 2005.

Interestingly, the respondent stated that he agreed to have conversations with
representatives from the Human Rights Commission, even though he never considered tetuming
to Mexico. Although he was offered protection, the respondent claims that he was never
interested in such protection, mainly because he did not trust the organization. The respondent
also mentioned that General Garcia Vega had told him that the military represented the
government; it is unclear how the General was related to any events in 2003.

Next, the Court asked the respondent if he considered himself to he a public official,
either by notoriety, by name, or by picture. The respondent replied that his life in Mexico has
always been public. The respondent then testified that he believes that, if asked, a person in
Mexico would be able to identify him and explain what he did. However, he based this belief on
the fact that Mexican citizens need an official identification card to travel through checkpoints,
military checkpoints, and the entire country, generally. Additionally, when askcd if he has
written articles that would allow people to identify him as somconc who has written about the
military since his arrival to the United States, the respondent stated that he has. He then clarified
that he was not "precisely writing," but he was participating in conferences and in different

groups.

The Court then asked the respondent if he attempted to contact his boss, Jose Martinez
Valdez, in preparation for his mcrits hearing. The respondent stated that he made attempts, but
his boss never retumed his calls. Moreover, the respondent testified that his friends in Mexico
attempted to interview Martinez Valdez, but he never made himself available. According to the
respondent. one of his friends told him that he had not seen Martinez Valdez in a long time. The
respondent also confirmed that newspaper hc previously worked for would not give him
access to copies of his own articles from the paper,

Regarding, Olga Ofelia Aguirre, the respondent testified that she was unwilling to
provido an affidavit to the Court in support of the respondent's asylum claim. According to the
respondent, she lives in Creel, Chihuahua, a very dangerous community where the military has a
broad presence.

The Court also qucsticncd the respondent about an article he wrote for the Grassroots

Press, an internet blog. in February 2010, titled, "Emilio's Story Part 2: Into the Mouth of the
Wolf" Exh, 2D at 281. Afier the article's publication, the respondent stated that he received

19

ourlemz-soro, Emilio (Lead)
Oscar Emilio (Rider)

invitations "to talk and for other interviews." He further stated that, while he did receive
warnings from colleagues in Mexico to cease his discussions of the military, he did not receive
any threats or wamings from military personnel.

After pointing the respondent to a letter, dated July 17, 2008, from the Human Rights
Commision (Exh, 2A at 62), the Court inquired as to how the respondent was able to obtain the
letter if it was mailed to his home in Mexico. The respondent stated that his prior attorney,
Carlos Specter, obtained the letter; he explained that it was first delivered to his house in Mexico
and then sent to Mr. Spector's office. The Court also asked the respondent if he ever provided
testimony, communications, photos, or videos to the Human Rights Commission, as requested in
the letter. The respondent merely stated that the Commission had the opportunity to look at the
information.

The Court also inquired about the respondent's home in Mexico, The respondent stated
that he sold his home [or about a third of its worth, adding that he made the decision to sell
because it was "basically being destroyed." The Court then referenced a September 2010
interview in which the respondent was talking to Julian Aguilar, Exh. 2D at 277. The Court
noted that the respondent had made the following statement: "They take away your house, they
take away your country, and you're supposed to stay quiet?" The Court then asked if this was a
misstatement, based on previous testimony in which the respondent stated he sold his house.
The respondent admitted that he did own two houses: one in Nuevo Casas Grandes and one in
Ascension. He stated that he attempted to sell the house in Nuevo Casas Grandes, but he was
unable to complete the process. Nevertheless, the respondent speculated that statement in
question was the result of a translation error~he confirmed that it was not his testimony that the
Mexican government forcefully took his home.

Finally, the Court requestioned the respondent about an article he wrote in 2010 titled,
"Emilio's Story Part 2: Into the Mouth of the Wolf." Exh. 2D at 22". The Court asked the
respondent if he had recorded the events that occurred in 2005, noting that the article contained
specific quotes from individuals and the story was recounted in great detail. The respondent only
stated that he had to "go back and look at the stuff and get information from other somes."

2. Testimony or0scar Emilio Gutierrez-Soto (Rider Respondent)
a. Direct Examination

Oscar Emilio Gutierrez-Soto stated that he is 23 years old. and he confirmed that the
respondent is his father. Oscar testified that he remembered his father's encounter with the
Mexican military in 2005, but he was unable to state specifically when the encounter occurred.
Oscar stated that, at that time, he believes he was in the fourth grade, although he was not sure.

When asked about the incident, oscar stated that he remembered that his father received
a call from someone named Martinez. Afier the phone call, Oscar recalled that he and his father
traveled to a hotel. upon their arrival, Oscar waited in his father's truck while the respondent
left to meet a group of people. Oscar testified that he waited in the truck the entire time his
father was speaking to the group of people. Although he was unable to hear what was said, he

20

GUTIERREZ-SOTO, Emilio (Lead)
Oscar Emilio (Rider)

did confmn that his father went to a group of people that looked like they belonged to the
military. Specifically, Oscar stated that the men were wearing military uniforms, and that they
had their faces covered.

According to Oscar, the respondent was outside speaking to the group of people for about
20 minutes before he returned to the vehicle where Oscar was miting. Oscar stated that his
father did not tell him what had happened, but he looked worried.

Oscar further testified that he remembered the day in 2008 when the military came to his
home. He slated that he was asleep when heard the military hitting the door. He remembers
seeing about 20 people in his home; he could not see if anyone was outside. Oscar was able to
identify these people as military, based on their camouflage uniforms and their covered faces.
According to Oscar, the raid lasted about 30 minutes. He continued that he and his father came
to the United States one month later.

Oscar stated that he and his father stayed with a friend before traveling to the United
States. At the friend's house. Oscar leamed from his father that the military was looking for him
arid wanted to assassinate him. Upon hearing this from his father, Oscar stated that he was afraid
and in shock. He testified that his father explained that the military wanted to kill him because
of the articles he had Written.

Finally, Oscar testified that his life in Mexico was a lot better than the life he currently
lives in the United States. He explained that in Mexico, his father owned a home, a car, and each
had their own friends. In contrast, in the US, Oscar stated that he and his father are currently
renting a home, meeting new people, and have had to "start everything new." He stated that,
before the threat to his safety, he and his father were happy in Mexico. He does not believe he
could retum to Mexico, even if safety was not an issue.

17, Cross Examination

On cross-examination, Oscar affirmed that he has never been personally threatened. He
further testified that, during the Febniary 2005 encounter, he waited in the truck for his father to
return, but he did not hide. Oscar also stated that he first heard about his father's persecution the
day before he entered the United States.

According to Oscar, the respondent did mention that he had been offered protection in the
event he did return to Mexico. Oscar stated that his father did ask him if he wished to return, but
Oscar told him that he did not.

3. Testimony ofrrofessor Molly Malloy
a. Direct Examination
Professor Molly Malloy testified that she is a Research Librarian and Border and Latin

American Studies Specialist at the New Mexico State University Library. She has
been working as a research librarian at NMSU for 24 years, and, for all of that timc, her specialty

21

 Emilio (Lead)
GUTIERREZ-SOTO, Oscar Emilia (Rider)

has been Latin American studies, Professor Malloy stated that she has provided testimony in
immigration proceedings held in El Paso on five separate oeeasions. Overall, she stated that she
has testified 12 different times, and she has written affidavits of support as well.

Professor Malloy stated that she has worked as a translator for reporters in the past. She
has also served as a fact--checker for jouznalists and publications, verifying whatjournalists have
written through research. Additionally, Professor Malloy indicated that she has also vinitten and
edited articles herselfi

In tracking homicides and general violence in Mexico, Professor Malloy testified that she
focuses on Juarez and Chihuahua. In her research, she primarily utilizes Mexican government
resources and stories emerging from the local press in the region. Specifically, Professor Malloy
testified that the problems faced by journalists in Mexico have brought attention to the Mexican
government's policies and inability to protect the press. She added that the focus on journalists
is something that has been a major effort on the part of human rights organizations in Mexico,
the United States, and other countries around the world. She articulated her belief that
journalists are often targeted for retribution, either by government or criminal forces.

According to Professor Malloy, she first met the respondent in March 2009. She had
previously seen him speak at a press conference in El Paso in February 2009, and shortly
thereafter, a journalist named Charles Bodin arranged an interview with the respondenti
Professor Malloy sen/ed as Bodin's interpreter and fact--checker.

Based on her knowledge of the respondent's experiences, Professor Malloy stated that
she believes the respondent will be in danger if he returns to Mexico. She explained that, in her
opinion, she believes that a threat from the Mexican military is very serious and will be carried
out. Professor Malloy also gave a general ofmilitary operations in Chihuahua, testifying
that military presence and human rights abuses have increased since 2008.

When asked why the military would leave the respondent alone for three years, only to
return and threaten him again, Professor Malloy speculated that by Waiting until 2008, when the
military "incursion" in Mexico began, they military would have been able to carry out their
threat largely unnoticed. She added that, if they had acted in 2005, it would have been much
more difficult for the military to get away with any wrongdoing. Essentially, Professor Malloy
testified that the military likely waited three years to act against the respondent so that they could
do so under cover of the operations taking place in the region in 2008.

Professor Malloy stated her assessment that, as the years have gone by and evidence has
accumulated, it has become clearer that the Mexican military and law enforcement bodies have
been involved in abusing the rights of Mexican citiLens. She opined that the respondent would
not be able to rely on the protection of the Mexican local police, state police, federal police, or
military. In support of this opinion, she cited conditions in Ciudad Juarez and Chihuahua in
2008, and stated that these government entities are unable to control the violence inflicted upon
the community.

22

GUTIERREZ-SOTO, Emilio (Lead)
GUTIEKRELSOTO, Oscar Emilio (Rider)

Finally, Professor Malloy stated that she did not believe that the respondent could safely
move to another part of Mexico without detection from the Mexican military. She emphasized
that the respondent has told his story in Various arenas and that his picture has been published in
magazinesiin short, she stated that his experiences and indictment of the Mexican government
are "very well-known and publicized." She concluded that he would be unable to relocate within
Mexico because of his outspokenness.

Cross--Examination

During cross-examination, Professor Malloy admitted that, although has worked as a
translator, she is not a certified translator. She also stated that she is not accredited by an
organization, because her profession does not require accreditation.

Although she did meet with the respondent "numerous times over the years," Professor
Malloy clarified that she did not base her affidavit on his personal experiences Rather, she
explained, her affidavit was based morc on research into the country conditions in Mexico.

Ra-Dlrecl Examination

0n redirect, Professor Malloy stated that she assisted two different journalists with
corroboration after they interviewed the respondent, Specifically, she testified that a journalist
named Philip Caputo expressed interest in traveling to Nuevo Casas Grandes to collect
corroborative evidence related to the respondent's claims. Professor Malloy and Mr. Caputo
collected names from the respondent and traveled to Nuevo Casas Grandes. Professor Malloy
testified that they attempted to meet with Jose Martinez Valdez, but their attempts were
unsuccessful. Additionally, Professor Malloy stated that she and Mr. Caputo spoke with Victor
Valdovinos, the news director for El Diario. She testified that, after they informed him that they
were interested in talking about the respondent, Mr. Valdovinos looked Very frightened.
According to Professor Malloy, Mr. Valdovinos turned away from them, stating, "You do not
want to talk to me."

Professor Malloy did state that she and Mr. Caputo were successful in interviewing
Fernando Dial, a radio newsperson. The interview was published in the Atlantic Magazine in
2009. Professor Malloy testified that Mr, Diaz had stated that, following the increased military
presence, he was careful to sn'ck to "just the facts" in his radio news reportsil'rofessor Malloy
described this type of reporting as a defense mechanism.

a1 Examination by the Court

In response to the Court's questioning, Professor Malloy stated that the military
operations in Mexico are still ongoing. She testified that the military presence in the country has
been ongoing for many years, and that the Mexican government's justification for the
widespread deployment is the fight against drug cartels. Although she agrees that the Mexican
govemment aims to fight drug cartels, Professor Malloy explained that the methods employed by
the government ofien i volve what she classified as very indiscriminak: actions against members
of the civilian population improperly perceived to be criminals,

23

 Emilio (Lead)
GUTIERREZ-SOTO, Oscar Emilio (Rider)

Additionally, Professor Malloy stated that she did not know of any other journalists who
were attacked in 2008, though she did recall that a journalist was murdered in November 2008.
When the Court asked Professor Malloy if she was aware of any other journalists whose homes
were raided during that period, she stated that she was not. Finally, Professor Malloy continued
that her belief that the respondent's encounters with the military in 2005 and 2008 were related
and connected events was based on speculation.

IV. Findings of the Court Regarding Removability

Based on both the lead and rider rcspondean' admissions, testimony, and the
documentary evidence of record. the Court finds that the respondents are natives and citizens of
Mexico who applied for admission to the United States on or about June 16, 2008. Exh. 1.'6
The respondents have never had lawful status in the United States, and they have never
possessed nor presented any documents that would allow them to lawfully enter or remain in the
United States.

Accordingly. the Court sustains the charge of removability under INA
for both respondents.

V. Legal Analysis and Findings of Law
A. Findings ofthe Court Regarding Credibility

Before determining whether the respondent meets the statutory criteria for the requested
relief, the Court will address the credibility of the respondent and his two witnesses. Churl v. INS,
40 F.3d 76, 79 (5th Cir. 1994). The respondent's application was filed alter May 11, 2005;
therefore, the provisions of the REAL ID Act govern. Matter of S-B-, 24 Dec. 42 (BIA
2006).

1. Respondent'sCredibility

Afier meticulously reviewing the respondent's statements in his 1589 application, his
credible fear interview, and his testimony and cross-examination, the Court finds the respondent
is not credible.

The respondent's testimony was characterized by inconsistencies, implausibilities, and
uncorroborated assertions. Additionally, the respondent did not respond with candor when
questioned by the Court. Moreover, he failed to present any independent evidence that would
reasonably explain, resolve or alleviate significant inconsistencies and implausibilities, and
likewise, the respondent did not offer any independent evidence that would in any way
corroborate his assertions. The Court has noted some but not all of these instances below, as not
all of the inconsistencies were relevant to the respondent's claim for relief or the Court's ultimate
decision in this case.

'6 See supra note I.

24

GUTIERREZ-SOTO, Emilio (Lead)
GUTLERREZVSOTO, Oscar Emilio (Rider)

Inconsistencies

During direct examination, the respondent clearly indicated that he did not report the
incident that occurred in February 2005 to the police. Later, during re-direet examination, in
order to "clarify," the respondent's attemey asked the respondent to confirm that he "reached
out" to the police, the prosecutor's office, and the Commission for Human Rights after the 2005
incident--the respondent did so confirm. Although this may appear to be a minor discrepancy,
the Court notes that the respondent's attorney purposely stated her intent to clarify before listing
the "police, the prosecutor's office, and the Commission for Human Rights" in her question. The
Court finds its troubling that the respondent appeared so steadfast when he asserted mat he did
not contact the police in 2005 but readily confirmed that he did actually contact the police during
re--direct.

Additionally, the respondent testified that, after he filed a report with the state
prosecutor's office regarding the threats he received in February 2005, he did not receive a
response from the office, During rc-direct examination, the respondent indicated that in fact, he
actually did receive a response to that report. He testified that, about three months afier he filed
the report, the prosecutor's office informed the respondent that neither the General nor the
Lieutenant Colonel could be found; therefore, the two men were never put on trial for the events
that occurred in 2005. Admittedly, the respondent may have considered this to be an
unsatisfactory response; the Court notes, however, that it is a response nonetheless.

Moreover, the respondent testified during direct examination that it took "years" for the
Human Rights Commission to respond to the complaint he submitted in 2008. Moments later,
however, the respondent's attorney, referring to Exhibit 2A at 62, asked the respondent if it was
possible that the Human Rights Commission responded to his complaint on July 17, 2003' The
respondent replied, quite assuredly, that the response from the Commission regarding the 2008
events was given "years Later." Afier showing the respondent the referenced document and
asking a few more questions, the respondent conceded that the Commission did send him an
official Correspondence in July 2008.

  

ii. Implausibi 

During cross-examination, the respondent stated that, while he worked for El Diario, he
wrote approximately six articles or informative notes on a daily basis, for eight years. For a few
reasons, the Court finds it implausible that, despite the amount of articles he had written, the
respondent was unable to locate more than one article' to submit to this Court First, the
respondent testified that he maintained "the most Comprehensive files for El Diario" in
Ascension, indicating that he had access to files and articles. He later testified, on more than one
occasion, that this office simply "disappeared." Second, the respondent testified that he, through
his colleagues and friends searched the "files of the company [the respondent] used to work for,
"a file" in Ascension, and the library in Nuevo Casas Grandes for articles that he had written.
The Court finds it implausible that, despite numerous articles written, a comprehensive archive,
and tireless searching, the respondent was unable to find more than one article to present to this
Court, in support of his claim. The Court does not accept the respondent's explanation that his

25

GUTIEWSOTO, Emilio (Lead)
Oscar Emilio (Rider)

office simply "disappeared" when he fled to the United States, leaving him with no way to
access files or information.

Additionally, the respondent testified that his first encounter with the military occurred in
February 2005, outside of El Miami Hotel, in Ascensienl The respondent testified that the
Lieutenant Colonel blocked his entry to the hotel and directed him to where the General's
vehicle was parked. After describing the encounter, the respondent stated that he believed the
General released him only because people from the community were passing by and greeting
him, indicating that this encounter occurred outside, in a place with some degree of exposure to
the public. The Court finds it implausible that the respondent could be threatened and
surrounded by armed military officials allegedly wearing masks, without a significant public
reactionistrikingly, the only reaction the respondent described was cheery waves ofrecognition
as he was pinned to a car by armed military men. The Court also finds it hard to believe that
military officials would threaten the respondent openly in the community if they were, indeed, so
worried about their public persona and angered over public reports of their wrongdoings.

Further. the Court finds it implausible that only the respondent received threats following
the publimtion of the article he wrote in 2005. The respondent testified that the mayor of Puerto
Palomas never received threats, despite publically expressing his anger and disagreement with
the Mexican military. He also testified that his receptionist was never threatened, even though
she worked almost exclusively in the Ascension office. Notably, the respondent did indicate that
his boss, Jose Martinez Valdez, was forced to schedule a meeting with Mexican military
officials; however, in this meeting, the respondent alleges that the military officials claimed that
their problems with the respondent were "a mistake," Rather than threaten Jose, the respondent
claims that the military officers indicated that they "wanted to leave this issue on the side."
Overall, it is implausible that, despite the many actors involved in the publication of El Diario,
and the fact that at least one public official openly denounced the military, the respondent, whose
name never appeared in the byline for the article, was the only individual who suffered threats
against his life.

Finally, during cross--examination, the respondent was asked if he had ever created a
"backup" of articles that he wrote while he was employcd by El Diario. In response, the
respondent stated that he had "the most comprehensive files for El Diario." To the Court, this
appeared to be an indication that the respondent, at the very least, maintained an archive of these
articles. However, during re-direet examination, the respondent testified that he did not have a
"back-up," and that the articles he wrote "just remained there," presumably referring to his office
in Ascension. First, as previously stated, the Court finds it implausible that the office housing
the only newspaper distributed in Ascension would merely vanish from existence without a trace.
It is even more implausible, however, that employees or officials within El Diario would allow
such a "comprehensive" archive of files and articles to simply disappear as well.

Uncarrabaral'ed Assertiom
Nearly all of the testimony provided by the respondent was uneorroborated by

independent sources or documents. To the Court, the following assertions are
directly relevant to the respondent's claims and weigh heavily against his credibility.

26

ourlemzrsoro, Emilio (Lead)
GUTIERREZSOTD, Oscar Emilio (Rider)

First, the respondent alleges that he wrote five different articles pertaining to military
matters while working for El Diario in Ascension. He further testified that, during his February
2005 encounter with military officers, the General specifically referenced three articles and
warned the respondent that there would not be a fourth. The evidentiary record, however, only
contains one article written by the respondent while he was working as ajoumaiist in Ascension:
"Demands to Stop lmpunity." Exh. 2F at 4. Although the record contains several other articles
that directly cite the respondent's personal experiences, these am'eles were not written by the
respondent himself--they were written by the El Diaria editorial board, See e. Exh. 2F at 9.
21 ("Soldiers Raid Jourrlalist's Home"; "Members of the Military Threaten Reporter's Life")

Additionally, during questioning. the respondent was asked to describe the other two
articles the General was referencing when he allegedly threatened the respondent in 2005. The
respondent only gave a vague description of the two articles, emphasizing only that they were
both critiml of the military. He did not provide titles for the articles or indicate when they were
actually written or published. Notably, the description he gave for one of the articles very
closely matched the description of the article titled, "Demands to Stop Impunity," although the
respondent did state that both articles were distinct. Moreover, the respondent did not provide
any affidavits from colleagues or anyone else with direct knowledge of the respondent's work as
a reporter. Although the respondent and Professor Malloy both testified that certain individuals
were unwilling to assist the respondent because they feared for their safety, the Court notes that
it had previously granted the respondent's request for a closed hearing, and the evidentiary
record in this matter is confidential. Overall, the Court does not have sufficient corroboration to
find that the respondent did, indeed, write more than one article criticizing the Mexican military.

Second, the respondent testified that he learned that the Mexican military intended to kill
him from his friend, Olga Ofelia Aguirre. He testified that Ms. Aguirre warned him in person
after calling him on the telephone, and his conversation with her prompted him to prepare to flee
the country. These assertions go directly to the heart of die respondent's claim; however, there is
nothing in the record to corroborate these statements. There are no affidavits in the record from
either Ms. Aguirre, or anyone else who might be knowledgeable of the relevant facts, to
corroborate the respondent's story, The respondent testified that he had communicated with Ms,
Aguirre about a month before his individual merits hearing, but she had refused to provide a
statement to this Court. Nevertheless, the Court finds that the respondent's assertions on this
issue are unreliable without corroboration.

Third, the respondent testified that his office in disappeared after he fled to the
United States. Based on the respondent's testimony, the Court is also wider the impression that
the respondent's archive offiles and articles also disappeared, as the respondent testified that is
the files are completely inaccessible and were once stored in the Ascension omce The
respondent did not offer any affidavits or documentary evidence to corroborate these claims.
Presumably, the respondent could have obtained an objective statement, with relevant ease. from
an El Diario representative to establish that the Ascension office is no longer in operation. In
fact, the respondent likely had an opportunity to collect relevant evidence when Professor Molly
Malloy traveled to Nuevo Casas Grandes with a freelance writer, Philip Caputo. Exh. 2F at 22
(Sworn Affidavit of Molly Malloy). Because the respondent failed to provide any objective
evidence related to this matter, the Court cannot find that his claims are credible.

27

GUTIERREZ-SOTO, Emilio (Lead)
GUTIERREZ-SOTO, Oscar Emilio (Rider)

Founh, from his testimony, it appears that, between 2005 and 2008, the respondent had
one main direct supervisor: Jose Martinez Valdez. The respondent claimed that he informed
Jose of both incidents involving the Mexican military, and he also claimed that Jose was directly
confronted by military officers, The respondent, however, has not submitted an affidavit from
Jose Martinez Valdez to corroborate any of these accounts. The respondent alleges that he
attempted to contact Jose, but his phone calls were never returned; he later testified that he no
longer has contact with his former boss. Overall, the Courl finds it difficult to believe that Jose
was so unwilling to help the respondent after he made quite an effort to be of assistance to him
while the respondent was still in Ascension. Notably, the respondent explained that Jose made
the decision to publish an article about the raid on the respondent's home in 2008, stating that
"he also saw himself in an important momentubecause the military searched the company's
vehicle." Considering the respondent's testimony, it is unclear why, exactly, the respondent was
unable to obtain a statement or evidence from the lose Martinez Valdez, a chief character in the
respondent's narrative.

Finally. when the Court asked the respondent if he cooperated with the Human Rights
Commission's request for evidence dated July 17, 2003. Exh. 2F at 61, he claimed that he had,
stating rather vaguely that "they had the opportunity to look at the information." The record,
however, does not contain any documentary evidence to establish that the respondent did
actually cooperate by "any information of evidentiary Value" to the Conlmission. Id. The Court
therefore, remains uncertain that the respondent was actually cooperative and finds it possible
that his lack of cooperation was a contributing factor to the length of time the Commission took
to investigate the respondent's claims.

iv, Rerpamiveness

In assessing the respondent's credibility, the Court also takes into account his
responsiveness during questioning. Several times during the Court's questioning, the respondent
avoided giving clear, complete answers that directly addressed the Court's inquiry. For example,
when the Court asked the respondent to explain the connection between the military encounters
in 2005 and 2008, the respondent repeatedly answered with his theory that the military is patient
and that they "are going to tslte as long as it is needed. .to be able to act." At no point did the
respondent give a clear, rational explanation that would explain the connection between these
two events. He merely avoided the question. Additionally, when the Court asked the respondent
to clarify why he believed that the entire military, rather than a few soldiers. was targeting him,
the respondent, again, avoided answering the question directly. Instead, he agreed with the Court
that his claim that "the military" is searching for him is a broad statement, but never gave clear,
cognizant reasons to explain why the entire military, and not just a few soldiers, would
unequivocally target him upon his return to Mexico

The Court also asked the respondent how he received correspondence fi'orn the Human
Rights Commission that was addressed to his home in Mexico after his arrival in the US. Exh,
2F at 61. The respondent only stated that he received the correspondence through his former
attorney's office, but did not provide any explanation about how this happened. Although the
Court asked him at least twice to explain how he received the correspondence. the respondent
would not elaborate on his claim that his former attorney received them at his office.

28

 Emilio (Lead)
GUTIERREZ-SOTO. Oscar Emilio (Rider)

Finally, the Court pointed the respondent to an article detailing an interview he gave to
Julian Aguilar in September 2010. Exh, 2D at 277, In that article, the respondent made the
following statement: "They take away your house, they take away your country, and you're
supposed to stay quiet?" Highlighting the respondent's previous testimony in which he stated
that he made the decision to sell is home after he left Mexico, the Court asked the respondent if
this quote was perhaps a "misstatement." The respondent then made a convenient speculation
that he did not believe that his statements had been correctly tIanslatedt He also testified that he
was not previously aware "of this fragmenfl' and he indicated that he did not believe he actually
made the statement.

2. Credibility of Oscar Emilio Gutierrez-Soto (Rider Respondent)

The Court finds the rider respondent, Oscar Emilio Gutierrez-Soto, credible in all
material respects. His testimony was sufficiently consistent and plausible, and, on the whole, his
answers were clear and not evasive,

3. Credibility ofProfessor Molly Malloy

Before her testimony began, the DHS objected to the admissibility of Professor Malloy's
affidavit, arguing that it is based on second and third-hand hearsay. The Dl-ls also stated that it
did not consider Professor Malloy to be an expert witness, Afier evaluating her testimony, the
Court finds Professor Molly Malloy to be credible in all material respects. The Court. however,
does not consider Professor Malloy to be an expert witness. Nevertheless, the Court has
considered her testimony summarizing her knowledge and research relating to the border region
in i5 assessment of the respondent's claims for relief.'7

B. Asylum under Section 208 of the INA

The Court finds that the respondent's evidence does not sufficiently rehabilitate his
testimony or independently satisfy his burden of proof for relief." INA Rul'
Yang v. Holder, 664 F.3d 580, 58687 (5th Cir. 24 Dec. at 263; see generally
Matter 26 Dec. 516 (BIA 2015). Because the respondent's testimony was not
credible and no other evidence independently establishes his burden of proof, he is unable to
establish eligibility for asylum." Therefore, the Court will deny his application.

'7 During the final individual merits hearing on December 7, 2016, the Court infomred the parties ir would not
use the term expert "to any specific degree" when rererring to Professor Mailcy. The Court also concluded that it
would only use the information she provided as appropriate. The respondent's counsel did not state an objection

1' With her closing statemenr, the respondents' counsel submitted newspaper articles, ailidavits, and evidence
documenting the respondent's work as a journalist in the United States, Resp'ts' Closing, Tabs A-C, These
additional documents were not admitted into the evidentiary record, and rhey were not considered by the Court,
"The respondents' counsel briefly mentions in her closing argument that the lead respondent "has been persecuted
on account of his membership in a particular social group, Joumalist,.." Resp'ts' closing at 5. The respondents'
counsel does not, however, provide any legal analysis to explain or establish how her proposed social group
consisting of "qumalist[5]" meets the Fiflh Circuit's requirements of "particularity" and "social visibility."
Oreltana-Momon Holder. 635 F.3d at 511, (Slh Cir. 2012). Counsel also argues that the respondent suffered
past persecution on account ofhls "tamily group" without any nirrlrer elaboration Respt's' Closing at ll.

29

GUTIERREZSOTO, Emilio (Lead)
Oscar Emilio (Rider)

C. Withholding of Removal under Section 24l(h)(3) of the Act

Because the respondent has failed to satisfy the lower burden of proof required for
asylurn, he has also failed to satisfy the clear probability standard of eligibility required for
withholding of removal. See 8 C.F.R. 1240.801); Rui Yang v. Holder, supra, at
583-89; Maid v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). Accordingly, the Court will deny
the respondent's application for withholding of removal.

1). Protection under the Convention Against Torture

Despite the respondent's incredible testimony, the Court must determine if the record of
evidence, alone, can establish that it is more likely than not that the respondent will be tortured20
upon his rctum to Mexico.

In order to qualify for reliefunder the Convention Against Torture an applioinrt
must establish that (1) if removed, it is more likely than not that he will be tortured; and (2) that
there is sufficient state action involved in that torture. Garcia. 756 F.3d at 89]. Acts of torture
conducted by, or with the acquiescence of, the Mexican government or its officials acting under
the color of law is sufficient. Hakim, 628 F.3d at 155 (citing 8 C.F.R. Acting
under the color of die law involves the official using "his official capacity to further [his personal
objectives]." Garcia, 756 F.3d at 892; see also United States V, Causey, 135 F.3d 407, 442 
Cir. 1999) (an act is under color or the law when it is a misuse of power "made possible only
because the wrongdoer is clothed with the authority of state law").

To meet his weighty burden, the applicant may present: (1) evidence of past torture; (2)
evidence that he could not relocate to another part of Mexico to avoid being banned; (3)
evidence of gross, flagrant, or mass violations of human rights within Mexico: and (4) other
relevant information regarding conditions in Mexico. 8 cm. Matter (JG-IL,
23 Dec. at 368. The Court finds the respondent has not met his burden for relief under the
CAT for several reasons.

First, the respondent has not presented evidence of past torture. Although he testified to
being threatened by the Mexican military on two occasions, he has not submitted corroborative
evidence to supplement these claims. Notwithstanding the lack of corroboration, the respondent
ultimately did not establish that the harm he suffered amounted to torture. In fact, he admitted
that he was never physically harmed by anyone in the Mexican military or the Mexican
government. He simply has not established that he experienced severe pain or suffering by any
person in Mexico. Therefore, the Court does not find that the respondent has presented evidence
of torture.

2" The Convention Against Torture defines "torture" as any act by which severe pain or sutrering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtainlng from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is suspected ofhaving
committed. or intimidating or coercing him or a third person. or for any reason based on discrimination or any kind,
when such pain or suffering is inflicted by or at the instigation ofoi with the consent or acquiescence on public
omcial or other person acting in an official capacity, Convention, Article 

30

GUTIERRFJ--SOTO. Emilio (Lead)
GUTIERREZ-SOTD, Oscar Emilio (Rider)

Moreover, the Court finds that the respondent has not established that the harm he fears
upon his return to Mexico would amount to torture within the meaning of the Act. Notably, the
respondent has not experienced any physical harm or severe mental suffering at the hands of the
Mexican military or any other actors within the Mexican govemment. See 8 C.F.R.
1208(a)(2). His brief encounters with Mexican military officers certainly do not
amount to torture, and the record contains insufficient evidence to establish that a member of the
Mexican military would be motivated to carry but torturous attacks against the respondent,
almost ten years aner he led Mexico. Although Professor Malloy did gave credible and
reasonable testimony explaining the history of Chihuahua's military incursions, the Court
cannot, in the first place, find that the respondent is currently or ever was specifically targeted for
torture by the Mexican military. See Matter of S-V-, 22 Dec. 1306, 1313 (BIA 2000).
Therefore, the Court cannot conclude that it is more likely than not that the respondent will be
tenured upon his return to Mexico,

Second, the Com finds that the respondent could reasonably avoid the harm he fears by
relocating to mother part of Mexico. During his testimony, the respondent stated that he never
attempted to relocate within Mexico prior to seeking asylum in the United States Although the
respondent claims that he is well-known throughout Mexico because of his "ouspokenness" on
issues like military action and human rights abuses in Mexico, for several reasons, the Court
finds that relocation is still possible: the respondent testified that his name was ofien omitted
from the bylines of the articles he wrote in his locally distributed paper, hampering potential for
nation-wide recognition; the respondent has not been present in Mexico in over a decade, and he
has not received any threats in that time; the respondent testified that he has not written a news
article or editorizd since 2010. although he has given interviews; and, while he may have gained
recognition in the United States, no actual evidence has been submitted to establish that the
respondent is still recognizable or even a topic of conversation in Mexico. Further, the
respondent and his son are both in good health, and neither testified to any ailments or conditions
that would prevent them from relocating within Mexico, Overall, the Court finds that the option
to internally relocate further diminishes the chance of the respondent's torture. See also Matter
25 Dec. 23 (BIA 2012).

Third, despite evident problems within the Mexican government. there is no basis for
concluding that the Mexican state and its officials would participate in torturing the respondent
either actively or by willful blindness. The standard for protection under the CAT is not whether
the government in the country of removal fully protects its citizens from a particular harm, but
whether it ignores the suffering of the victims of that harm with willful blindness. See Tamara-
Gomez, 447 F.3d at 351; Hakim, 628 F.3d at 155-56. Admittedly, the State Department's
Human Rights Report for 2015 states that the "most significant human problems
included law enforcement and mililary involvement in serious abuses." Exh 4B, Tab A.
However, a pattern of human rights violations within a country is insufficient on its own to
warrant CAT protection. Rather, the applicant must demonstrate "[s]pecific grounds to indicate
that [he] would personally he at risk." Mailer of S--V-, 22 Dec. 1306, 1313 (BIA 2000).
Such spcciflc grounds cannot consist of a "hypothetical chain of events," and, in this matter, that
is all that has been presented. Matter 23 Dec. at 917-18. Indeed, in each of the
exhibits he submitted to this Court, the respondent provided news articles to demonstrate that
journalists generally face great danger in Mexico. Although most ofthese documents do identify

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GUTIERREZ-SOTO, Emilio (Lead)
Oscar Emilio (Rider)

harms that Mexican journalists have suffered, die Court notes that several articles chronicle
personal interviews the respondent has given and provide updates related to his removal
proceedings. See Exh. 2A, Tab D, pp. 95-97, 106, 135-150, 155-169; Exh. 2D, Tab C, pp. 277,
231-283, 285-291, 294-308, 310-3338; Exhi 2Fi These specific documents do not contribute to
a complete, unbiased picture of the harm the respondent faces if he returns to Mexico.

Even considering the evidence the respondent has provided to demonstrate that
journalists are currently experiencing abuses in Mexico, the Court must find that the respondent
failed to establish that the Mexican government would be unable or unwilling to protect him
from tenure. The Mexican government has taken steps to address corruption within law
enforcement and adopted a strong public stance against organized crime. Exh, 43 at 1-3 (listing
prosecutions and investigations into allegations of police and military corruption). The
Department of State Human Rights Report for 2015 reflects that the Mexican government did
prosecute govenunent actors accused of misconduct and even instituted vetting for police
officers. Id. at 15. Notably, in the respondent's case, the Mexican government has a made quite
an effort to cooperate with the respondent and offer him protection. In 2005, afier the respondent
was allegedly threatened by a General in the Mexican military, the National Commission for
Human Rights in Mexico facilitated a conciliation agreement between the respondent and the
Mexican govemment, Exh. 2F at 33-56, Following the conciliation, the respondent testified that
he was not harmed or even bothered by the Mexican military for three years. Additionally,
following the raid on his home in 2008, the respondent again filed a complaint with the National
Commission for Human Rights in Mexico. Exh. 2F at 57-64. Afier he filed this complaint, the
Mexican government investigated the respondent's claims and even offered to provide him
personal body guards if he returned to Mexico. Although the respondent claims that this
agreement was never offered to him in writing, he did indicate that it ms personally presented to
him twice in one meeting, but he refused to accept both times. Nevertheless, the actions and
offers made on behalf of the Mexican government indicate that it was neither unwilling nor
unable to offer protection to the respondent. Therefore, the evidence in the record fails to
support a finding that the respondent would be turtured with the acquiescence of the Mexican
government.

in sum, the respondent has not met his burden to establish that it is more likely than not
that he will be tortured by the Mexican government, either by officials acting under the color of
the law or through their willful blindness. He has not presented evidence of past torture; the
Court finds that relocation is possible for the respondent and his son. and in doing so they btoh
can avoid the harms they fear. Finally, that facts in this case and the country conditions in
Mexico do not compel the Court to conclude that the Mexican government will be unable or
unwilling to protect the respondent.

The Court will therefore deny the respondent's application for protection under the CAT.

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GUTIERREZ-SOTO, Emilio (Lead)
GUTIERREZ-SDTO, Oscar Emilio (Rider)

Conclusion

 

Based on the foregoing, the following orders shall be entered:

IT IS HEREBY ORDERED that the lead respondent's application for
asylum pursuant to WA 208 be DENIED.

IT IS FURTHER ORDERED that the rider respondent's application for
asylum, as a derivative under INA be DENIED.

IT IS FURTHER ORDERED that the lead respondent's application for
withholding of removal pursuant to TNA 241(1))(3) be DENIED.

IT IS FURTHER ORDERED that the lead respondent's request for
protection under the Convention Against Torture be DENIED.

IT IS FURTHER ORDERED that the respondents be REMOVED from
the United States to MEXICO.

 

*7 a 
Date Robert so Hough
US. Immigmtion Judge
El Paso, Texas

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