Marla Patricia LOPEZ-DIEGO, Derian Ramirez-Lopez, Petitioners, v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent.
No. 17-3160
United States Court of Appeals, Sixth Circuit.
Filed November 14, 2017
707 F. App‘x 576
Before: GUY, MOORE, and ROGERS, Circuit Judges.
Gregory A. Pennington, Jr., U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Kevin James Conway, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent
KAREN NELSON MOORE, Circuit Judge.
Marla Lopez-Diego and her minor son Derian Ramirez-Lopez, both citizens of Honduras, entered the United States in March 2014. They entered without being admitted or paroled after an inspection by a Department of Homeland Security (“DHS“) immigration officer and were immediately served with Notices to Appear. Lopez-Diego and her son conceded removability and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT“), claiming that they faced discrimination in Honduras as members of a minority group, the specific threat of violence from the killers of Ramirez-Lopez‘s father, and the general threat of violence from the high crime rate in their country.
The Immigration Judge (“IJ“) found that the petitioners were credible, but denied their applications for asylum, withholding of removal, and protection under the CAT. The Board of Immigration Appeals (“BIA“) affirmed the denial on appeal. After reviewing the record under the substantial evidence standard, we conclude that Lopez-Diego and Ramirez-Lopez cannot satisfy their burden of proof for asylum, withholding of removal, or protection under the CAT. We therefore DENY their petitions for review.
I. BACKGROUND
Honduran citizens Lopez-Diego and her minor son Ramirez-Lopez entered the United States on or about March 14, 2014. Administrative Record (“A.R.“) at 483 (Lopez-Diego Notice to Appear at 1); A.R. at 530 (Ramirez-Lopez Notice to Appear at 1). The two entered the country without being admitted or paroled after an inspection by a DHS immigration officer in violation of
At the petitioners’ consolidated removal hearing, both admitted the factual allegations and conceded removability. Id. at 149 (Removal Proceeding Tr. at 9). On April 22, 2015, Lopez-Diego filed an I-589 application for asylum, withholding of removal, and protection under the CAT. Id. Lopez-Diego filed an amended I-589 on September 2, 2015. Id. at 159 (Removal Proceed-
At the removal hearing, Lopez-Diego testified that she was Garifuna, which is a distinct ethnic group in Honduras. Id. at 183 (Removal Proceeding Tr. at 41). The Garifuna have darker skin than other ethnic groups in Honduras, wear different clothing, and speak a distinctive dialect. Id. at 184-85 (Removal Proceeding Tr. at 41-43). Lopez-Diego testified that she lived in Tornabe, Honduras from 2011 to 2013 in her family‘s ancestral home, which was owned by her mother at the time. Id. at 192 (Removal Proceeding Tr. at 50); id. at 201 (Removal Proceeding Tr. at 59). In September 2013, the government evicted Lopez-Diego and her family from their home, along with other members of the local community, in order to build a hotel on the land. Id. at 193 (Removal Proceeding Tr. at 51). Lopez-Diego testified that the Honduran government did not compensate her family. Id. at 195 (Removal Proceeding Tr. at 53). According to Lopez-Diego, the government evicted the local residents from Tornabe because the town is on the coast and well-suited for the development of a tourist resort. Id. at 197 (Removal Proceeding Tr. at 55).
Lopez-Diego testified that she had moved to Tornabe in 2011 after the father of her children, Dionisio Ramirez Marcelino (Ramirez), was murdered in March of that year. Id. at 204-06 (Removal Proceeding Tr. at 62-64). Ramirez was shot while working as a bus driver in San Pedro Sula, Honduras. Id. at 206 (Removal Proceeding Tr. at 64). After the shooting, two individuals visited Lopez-Diego‘s home and asked after her son Derian, who had sometimes accompanied his father Ramirez to work. Id. at 211 (Removal Proceeding Tr. at 69). Lopez-Diego feared that the two individuals were Ramirez‘s murderers and that fear prompted her to flee with her family back to her ancestral home along the coast. Id. at 212 (Removal Proceeding Tr. at 70).
Lopez-Diego testified that she struggled to support her family after Ramirez was killed. Id. at 210 (Removal Proceeding Tr. at 68). According to Lopez-Diego, there is significant discrimination against Garifunas in Honduras, and she was unable to obtain steady employment because employers preferred to hire applicants who were white. Id. at 208-10 (Removal Proceeding Tr. at 66-68). Lopez-Diego testi-
The government agreed to stipulate that Ramirez-Lopez‘s testimony would be the same as his mother‘s regarding their eviction and the discrimination they face in Honduras as Garifunas. Id. at 238 (Removal Proceeding Tr. at 96). Ramirez-Lopez testified for the limited purpose of explaining his fear of further violence from his father‘s murderers. Ramirez-Lopez said that he would visit his father on the bus and Ramirez would introduce him to passengers as his son. Id. at 243 (Removal Proceeding Tr. at 101). Ramirez-Lopez testified that he was afraid that the unknown perpetrators would kill him and would find the rest of his remaining family through him and kill them as well. Id. at 245-46 (Removal Proceeding Tr. at 103-04).
To support their application, petitioners submitted multiple additional documents including the 2014 U.S. Department of State Country Report on Human Rights Practices for Honduras, which discusses the discrimination faced by minority groups in Honduras, including Garifunas. Id. at 364-377 (Resp‘t Ex. 3A at Tab J).
The IJ rendered an oral decision on February 1, 2016. Id. at 99 (IJ Dec. at 1). The IJ found both petitioners to be credible witnesses, but gave little evidentiary weight to the parts of their testimony that were based on unsupported speculation. Id. at 109 (IJ Dec. at 11). The IJ found that Lopez-Diego‘s application for asylum was untimely, but analyzed both Lopez-Diego‘s and Ramirez-Lopez‘s applications as if neither was time-barred. Id. at 110 (IJ Dec. at 12). The IJ found that the petitioners had not established past persecution or a well-founded fear of future persecution. Id. at 111-13 (IJ Dec. at 13-15). Consequently, the IJ denied the petitioners’ applications for asylum. Id. at 115 (IJ Dec. at 17). Because the burden of proof for withholding of removal is higher than that for an asylum application, the IJ also denied the petitioners’ application for withholding of removal. Id. Finally, the IJ found that neither petitioner had suffered physical harm and they could safely relocate within Honduras, and therefore their application for protection under the CAT was also denied. Id. at 116 (IJ Dec. at 18).
The petitioners appealed the IJ‘s decision to the BIA. On January 18, 2017, the BIA dismissed their appeal. Id. at 6 (BIA Dec. at 4). The BIA first found that the IJ‘s determination that the petitioners (respondents below) had not established past persecution or a well-founded fear of future persecution was not clearly erroneous.3 Id. at 3 (BIA Dec. at 1). Second, the BIA affirmed the IJ‘s denial of withholding of removal because they had not satisfied the lower burden of proof required for asylum. Id. at 6 (BIA Dec. at 4). Finally, the BIA affirmed the IJ‘s denial of protection under the CAT. Id. The BIA did not address the IJ‘s finding that Lopez-Diego‘s application for asylum was untimely because the IJ had considered the merits of her underlying claim. Id. at 3 (BIA Dec. at 1 n.2).
II. DISCUSSION
A. Standard of Review
When “the BIA reviews the immigration judge‘s decision and issues a separate
B. Application for Asylum
“The Secretary of Homeland Security or the Attorney General may grant asylum to an alien . . . [if either] determines that such alien is a refugee. . . .”
Persecution is not statutorily defined, but it is well-established that “physical harm is not an essential feature of persecution.” Stserba, 646 F.3d at 972. “Nonphysical persecution can take various forms, including ‘the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment[,] or other essentials of life.‘” Id. (alteration in original) (quoting In re T-Z-, 24 I. & N. Dec. 163, 171 (B.I.A. 2007)). Persecution does, however, “require[] more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” Bi Xia Qu v. Holder, 618 F.3d 602, 606 (6th Cir. 2010) (quoting Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005)). The types of harm that rise to the level of persecution, as opposed to harassment, include: “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.” Stserba, 646 F.3d at 972 (quoting Haider v. Holder, 595 F.3d 276, 286-87 (6th Cir. 2010)). Finally, “the infliction of harm or suffering [must be] by the government, or persons the government is unwilling or unable to control.” Khalili, 557 F.3d at 436 (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004)).
If the asylum applicant establishes past persecution, then she is presumed to have a well-founded fear of persecution. Bi Qing Zheng v. Lynch, 819 F.3d 287, 294 (6th Cir. 2016). If the asylum applicant cannot show evidence of past persecution, she must instead prove her well-founded fear of future persecution.
To do this, the applicant must show that he “actually fear[s] that he will be persecuted upon return to his country, and he
The BIA held that Lopez-Diego had not established that she had suffered past persecution on account of a protected ground. A.R. at 4 (BIA Dec. at 2). That decision was supported by substantial evidence. Lopez-Diego testified, both on direct and cross examination, that her family‘s ancestral home was taken by the government because the home was on the site of a planned tourist development. Id. at 226-27 (Removal Proceeding Tr. at 84-85) (“The only reason [the government took the land] was to build resorts. . . .“); see also id. at 197 (Removal Proceeding Tr. at 55). The petitioners did not establish that a “central reason” behind their eviction was the fact they were Garifuna. Furthermore, the State Department Country Report for Honduras details efforts by both the Honduran government and the Inter-American Court of Human Rights to address claims by various minority groups that their property rights have been violated. Id. at 374 (Resp‘t Ex. 3A at Tab J at 11). Consequently, the record supports the BIA‘s conclusion that the petitioners’ eviction was at most a civil dispute rather than persecution.4
Additionally, there is substantial evidence in the record supporting the BIA‘s conclusion that the discrimination faced by the petitioners as Garifunas does not rise to the level of persecution. Lopez-Diego testified that neither she nor her relatives remaining in Honduras had been physically harmed because they were Garifunas. Id. at 226, 228 (Removal Proceeding Tr. at 84, 86). Additionally, although Lopez-Diego testified that her employment provided insufficient income for her to support her family after the death of Ramirez, her testimony also revealed that both she and Ramirez were able to find jobs. Id. at 206-08 (Removal Proceeding Tr. at 64-66). Economic deprivations must be sufficiently severe in order to constitute persecution. Stserba, 646 F.3d at 976; see also Ljuljdjurovic v. Gonzales, 132 Fed. Appx. 607, 612 (6th Cir. 2005) (holding that aliens’ loss of job, denial of credit, and failure of a business due to the lack of customers were insufficient to constitute economic persecution). Here, the economic deprivations the petitioners have established do not rise to the level of economic persecution in terms of their severity.5
The record also does not compel a contrary conclusion to the BIA‘s holding that the petitioners have not established a well-founded fear of future persecution. The IJ found credible Lopez-Diego and Ramirez-Lopez‘s fears about further di-
Because substantial evidence supports the BIA‘s determination that the petitioners failed to establish a sufficient nexus between their status as Garifunas and the past harm and future harm they endured or fear, we deny their petition for review regarding their claim for asylum.
C. Withholding of Removal
An applicant for withholding of removal must demonstrate that her “life or freedom would be threatened in that country [of removal] because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
D. Relief Under the CAT
To qualify for protection under the CAT, an applicant must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
The record evidence does not compel a conclusion contrary to the BIA‘s holding that Lopez-Diego “has not shown that it is more likely than not that she will be tortured if she returns to Honduras.” A.R. at 6 (BIA Dec. at 4). First, Lopez-Diego testified that neither she nor her relatives remaining in Honduras had ever been physically harmed, let alone tortured. Id. at 226, 228 (Removal Proceeding Tr. at 84, 86). Second, the petitioners did not show that any physical harm they feared was more likely than not to be “inflicted by, instigated by, or done with the consent or acquiescence of a government official or someone acting in [an] official capacity.” Hamida, 478 F.3d at 741. “The CAT does not afford protection to torturous acts inflicted by wholly private actors.” Zaldana Menijar, 812 F.3d at 501. Thus, the record supports the BIA‘s conclusion that the petitioners failed to meet the requirements to qualify for protection under the CAT; we therefore deny their petition for review regarding their application for relief under the CAT.
III. CONCLUSION
Because there is substantial evidence in the record supporting the BIA‘s decision that Lopez-Diego and Ramirez-Lopez have failed to satisfy their burden of proof for asylum, withholding of removal, and protection under the CAT, we DENY their petitions for review of the BIA‘s decision.