A Colombian national seeking protection in the United States has lost her appeal after the Eleventh Circuit Court of Appeals upheld the denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court found that Ginna Alejandra Gutierrez-Mikan failed to meet critical procedural hurdles for her ineffective assistance of counsel claim and that substantial evidence supported the finding that the Colombian government was not acquiescing to the persecution she suffered at the hands of the FARC guerrillas.
The ruling represents the conclusion of a multi-stage legal battle that began when Gutierrez-Mikan and her son entered the U.S. in 2021 and immediately faced deportation proceedings.
Allegations of FARC Violence
Gutierrez-Mikan testified before the immigration judge (IJ) about two decades of persecution by the Revolutionary Armed Forces of Colombia (FARC). She claimed that after her family refused to pay extortion money, FARC raped her, destroyed their vehicle, and murdered two of her uncles who tried to intervene. Despite the family moving several times within Colombia to evade the guerillas, the harassment continued through threats, phone calls, and robbery.
The family reported these incidents to the Colombian police, who placed them in a database for victims of armed conflict. However, the threats persisted. Ultimately, Gutierrez-Mikan and her son fled to the U.S. without authorization.
Initial Denial and Procedural Hurdles
The IJ initially denied all relief, crediting Gutierrez-Mikan’s testimony but concluding she failed on the legal merits. For asylum and withholding, the IJ found she hadn’t proven persecution based on membership in a “valid cognizable particular social group.” For the CAT claim, the IJ determined she hadn’t shown it was “more likely than not” she would face torture by or with the consent or acquiescence of a Colombian public official, noting the evidence didn’t show the government would “look the other way.”
Gutierrez-Mikan appealed to the Board of Immigration Appeals (BIA), raising two main points: ineffective assistance of counsel (IAC) and error in the CAT denial.
The BIA initially agreed with the CAT issue, remanding the case because the IJ’s decision lacked analysis regarding the evidence and the legal requirements for CAT relief.
The Remand and Second Denial
On remand, the IJ reviewed the existing record and added findings. He noted that Colombia had entered peace accords with FARC, outlawed FARC membership, and was actively trying to combat the group. Based on this, the IJ concluded that the government had not consented to or acquiesced in FARC’s activities, thus denying the CAT claim again.
Gutierrez-Mikan appealed this second denial, arguing the IJ erred by not holding a new hearing or taking new evidence. The BIA rejected this, stating that “further proceedings” did not mandate new testimony. Crucially, the BIA also rejected her argument that she had shown a “complete failure by Colombian authorities to provide adequate protection,” adopting the IJ’s finding that she had not demonstrated the necessary “state nexus to torture.”
The Eleventh Circuit’s Review
Before the Eleventh Circuit, Gutierrez-Mikan argued two points: the BIA wrongly dismissed her IAC claim based on procedural rules, and the BIA applied the wrong standard to her CAT claim.
Ineffective Assistance of Counsel Denied
The court first addressed the IAC claim. To bring such a claim in immigration court, applicants must comply with the procedural requirements set out in Matter of Lozada. This generally requires submitting a bar complaint against the attorney or explaining why that wasn’t done, and providing the attorney notice and an opportunity to respond.
The Eleventh Circuit found the BIA was correct to dismiss the claim because Gutierrez-Mikan failed to meet these requirements. She neither submitted a complaint nor explained why she hadn’t.
Gutierrez-Mikan tried to argue that the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo negated the Lozada requirements. The court swiftly dismissed this argument. The court explained that Loper Bright restricted judicial deference to agencies interpreting ambiguous statutes (the Chevron deference doctrine). However, the Lozada requirements for IAC claims are based on the BIA’s administrative discretion in handling motions to reopen, not on interpreting an immigration statute. Therefore, Loper Bright had no impact on Lozada.
Convention Against Torture Claim Upheld
Regarding the CAT claim, the regulation requires an applicant to show it is “more likely than not” they will face severe pain or suffering intentionally inflicted by or with the consent or acquiescence of a public official. Acquiescence means an official must know about the torture beforehand and then fail in their legal duty to stop it.
The Eleventh Circuit found that substantial evidence supported the BIA’s conclusion that the Colombian government was not acquiescing. The record showed the government was actively negotiating peace accords, outlawing violent groups, and documenting victims in a government database. While FARC retaliated against the family for reporting them, the court noted this evidence suggested the government’s efforts were having *some* effect, undermining the claim that the state was willfully ignoring the abuse.
Gutierrez-Mikan also argued the BIA applied an improper, heightened standard by referring to the need to show a “complete failure by Colombian authorities to provide adequate protection.” The court clarified that the BIA was merely describing the arguments Gutierrez-Mikan made on appeal. Ultimately, the BIA adopted the IJ’s finding, which correctly relied on the regulatory definition of acquiescence.
Because the court found no error in the BIA’s handling of the IAC claim or the denial of the CAT relief, the petition for review was denied.