A Colombian national seeking refuge in the United States has lost her appeal challenging the denial of her asylum, withholding of removal, and protection under the Convention Against Torture. The Eleventh Circuit Court of Appeals upheld the Board of Immigration Appeals’ (BIA) decision, finding that the petitioner failed to meet key procedural hurdles for her ineffective counsel claim and did not provide sufficient evidence to prove the Colombian government would acquiesce to her torture.
Ginna Alejandra Gutierrez-Mikan and her son entered the U.S. in July 2021 and shortly thereafter faced removal proceedings. During her hearing, Gutierrez-Mikan testified about two decades of persecution by the Revolutionary Armed Forces of Colombia (FARC), a violent guerrilla group. She claimed that after her family refused to pay extortion money, FARC raped her, burned their vehicle, and killed two of her uncles. Despite reporting the violence and threats to Colombian police and moving multiple times within the country, the harassment continued, ultimately leading her to flee to the U.S.
Asylum and Withholding Denied on Group Membership
The Immigration Judge (IJ) initially credited Gutierrez-Mikan’s testimony but denied her applications for asylum and withholding of removal. The IJ concluded that she failed to establish that she was harmed because she belonged to a “valid cognizable particular social group.”
For her claim under the Convention Against Torture (CAT), the IJ found that she had not shown it was “more likely than not” she would face harm amounting to torture by or with the consent or acquiescence of a Colombian public official. The evidence, in the IJ’s view, did not show that the government would “look the other way” regarding FARC’s actions.
Procedural Failure Dooms Ineffective Counsel Claim
Gutierrez-Mikan appealed the IJ’s decision to the BIA, raising two main points: an ineffective assistance of counsel claim and a challenge to the denial of her CAT claim.
Regarding her lawyer, she argued that her attorney had failed to argue she was persecuted based on resisting FARC or her membership in her nuclear family. However, the BIA dismissed this claim because Gutierrez-Mikan failed to comply with the procedural requirements set out in *Matter of Lozada*. Under *Lozada*, an applicant must typically submit a bar complaint against the attorney or explain why they didn’t, and they must give the attorney notice and an opportunity to respond. The BIA found no evidence that Gutierrez-Mikan satisfied either requirement.
On appeal to the Eleventh Circuit, Gutierrez-Mikan argued that the Supreme Court’s recent decision in *Loper Bright Enterprises v. Raimondo* invalidated the *Lozada* requirements. The Eleventh Circuit swiftly rejected this argument. The court explained that *Loper Bright* changed how courts defer to agency interpretations of ambiguous statutes, but *Lozada* requirements stem from the BIA’s procedural discretion in handling motions to reopen, not from interpreting an immigration statute. Therefore, *Loper Bright* had no impact on the continuing validity of *Lozada*. Since Gutierrez-Mikan made no showing of substantial compliance with *Lozada*, her ineffective assistance claim was properly dismissed.
Remand and Final Decision on Torture Claim
The BIA initially agreed with Gutierrez-Mikan that the IJ’s first ruling on the CAT claim lacked necessary analysis, remanding the case for “further proceedings.”
On remand, the IJ reviewed the existing record and added findings: Colombia had peace accords with FARC, outlawed FARC membership, and was actively combating the group. Based on this, the IJ reaffirmed that Gutierrez-Mikan had not shown governmental consent or acquiescence to FARC’s activities.
Gutierrez-Mikan appealed again, arguing the IJ wrongly refused to hold a new hearing or take new evidence. The BIA rejected this, stating that “further proceedings” did not mandate new testimony. More critically, the BIA upheld the IJ’s finding that Gutierrez-Mikan failed to “demonstrate a state nexus to torture,” meaning she hadn’t shown the government acquiesced.
Court Upholds Acquiescence Finding
In her final appeal to the Eleventh Circuit, Gutierrez-Mikan contended the BIA erred in its evaluation of her CAT claim. She argued that the evidence clearly demonstrated the likelihood of torture if she returned, and that the BIA applied an improper, heightened standard when discussing the need for a “complete failure” by Colombian authorities to protect her.
The Eleventh Circuit reviewed the facts under the “substantial evidence” standard, meaning the decision must be supported by reasonable, probative evidence.
The court confirmed that protection under the Convention requires an alien to show they are “more likely than not to be tortured,” and that the torture must be inflicted with the “consent or acquiescence” of a public official. Acquiescence requires an official to be aware of the activity and then breach their legal duty to intervene.
The appellate court found substantial evidence supported the BIA’s conclusion that the Colombian government did not acquiesce. Evidence cited included the government negotiating peace accords, outlawing violent groups, and registering victims in a database. The fact that FARC retaliated against the family when they called the police further suggested the government was actively working against the group, not supporting it.
Regarding the legal standard, the court clarified that the BIA’s reference to a “complete failure” was merely its description of Gutierrez-Mikan’s arguments on appeal. Ultimately, the BIA adopted the IJ’s finding, which was based on the correct regulatory standard under 8 C.F.R. § 1208.18(a)(1).
Because Gutierrez-Mikan failed to satisfy the procedural requirements for her ineffective counsel claim and the factual findings regarding governmental acquiescence were supported by evidence, the Eleventh Circuit denied her petition for review.