Rosa Martinez-Lopez v. William Barr, U. S. ( 2019 )

Case: 18-60393 Document: 00515223736 Page: 1 Date Filed: 12/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 4, 2019
No. 18-60393
Lyle W. Cayce
Clerk
ROSA ALBA MARTINEZ-LOPEZ; JOSAFAT NAHUM SIERRA-MARTINEZ,
Petitioners
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before JOLLY, SMITH, and COSTA, Circuit Judges.
PER CURIAM:
Rosa Alba Martinez-Lopez, on behalf of herself and her minor son Josafat
Nahum Sierra-Martinez, seeks review of a Board of Immigration Appeals
decision affirming the denial of their requests for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We
deny the petition.
I.
Martinez-Lopez and her son are from Honduras. They entered the
United States without documentation in October 2015. Each received a notice
to appear before an immigration judge (IJ), but the notices stated that the date
and time of the appearance were “To Be Determined.” A later notice provided
Case: 18-60393 Document: 00515223736 Page: 2 Date Filed: 12/04/2019
No. 18-60393
a date and a time for a hearing in Houston. Martinez-Lopez and her son
appeared at the prescribed time and place.
At a subsequent hearing before the IJ, Martinez-Lopez admitted through
counsel that she and her son were inadmissible aliens. She applied for asylum,
withholding of removal, and relief under the CAT.
In support of her application, Martinez-Lopez related the following
instances of violence and harassment against her and her family in Honduras.
Her brother was murdered after dropping off his son at school. The police did
not investigate his murder, even though Martinez-Lopez’s family filed a police
report. A month later, several of Martinez-Lopez’s relatives were killed too.
This time, police arrested a gang member. Martinez-Lopez also noted that her
father was killed over twenty years ago, and the police never investigated his
murder.
Martinez-Lopez testified that the harassment of her family continued
after her brother’s murder. For example, men in a truck followed Martinez-
Lopez, her mother, and her sisters. Even after Martinez-Lopez relocated to the
United States, men followed her mother and sisters on at least one other
occasion. They have not, however, encountered any problems in over a year.
They now live in another part of Honduras.
Finally, Martinez-Lopez said that gang members harassed her at the cell
phone store where she worked in Honduras. She testified that they came to
the store five days a week and demanded that she and other employees hand
over SIM cards. The gang members threatened to kill the store employees and
their families if they did not cooperate. Again, the police took no action.
As a result of these events, Martinez-Lopez fears returning to Honduras
because she believes the “people who killed [her] brother and the gang
members who made [her] program the sim cards” would find and kill her.
2
Case: 18-60393 Document: 00515223736 Page: 3 Date Filed: 12/04/2019
No. 18-60393
The IJ denied Martinez-Lopez’s application. Although she found
Martinez-Lopez to be credible, the judge determined that Martinez-Lopez’s
testimony did not satisfy the requirements for asylum, withholding of removal,
or protection under the CAT. The Board of Immigration Appeals affirmed the
IJ’s decision without opinion. Martinez-Lopez timely petitioned this court for
review.
II.
Because the Board affirmed the IJ’s decision without opinion, the IJ’s
decision is the final agency determination subject to our review. See Soadjede
v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003) (per curiam). We review an IJ’s
factual determinations for substantial evidence, overturning a finding only
when the evidence compels a contrary result. Zhang v. Gonzales, 432 F.3d 339,
344 (5th Cir. 2005).
III.
As a threshold matter, Martinez-Lopez argues that, under Pereira v.
Sessions, 138 S. Ct. 2105 (2018), the IJ lacked jurisdiction over her case.
Pereira held that “[a] putative notice to appear that fails to designate the
specific time or place of the noncitizen’s removal proceedings is not a ‘notice to
appear under section 1229(a),’ and so does not trigger the stop-time rule.” Id.
at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)). Martinez-Lopez asserts that
the notices sent to her and her son were similarly defective as they too failed
to specify a date and time. Consequently, she says, there was no jurisdiction
because 8 C.F.R. § 1003.14(a) vests jurisdiction in an immigration court only
after the Department of Homeland Security files a proper charging document.
We recently rejected Martinez-Lopez’s argument. See Pierre-Paul v.
Barr, 930 F.3d 684, 689–90 (5th Cir. 2019). Pierre-Paul held that a notice to
appear lacking a date and time is not defective for the purposes of establishing
jurisdiction and that, even if it was, an immigration court could cure that defect
3
Case: 18-60393 Document: 00515223736 Page: 4 Date Filed: 12/04/2019
No. 18-60393
by sending a subsequent hearing notice with the date and time. Id. at 689–91.
Pereira, we explained, hinges on the stop-time rule’s statutory reference to 8
U.S.C. § 1229(a), which requires a notice to appear to include the time and
place of the hearing. Id. at 689; see also 8 U.S.C. § 1229b(d)(1)(A). But 8 C.F.R.
§ 1003.14 does not mention section 1229(a). And for the purposes of a
regulation or statute that is not “textually bonded to 8 U.S.C. § 1229(a),” a
notice to appear does not need to include a date and time to be valid; it need
only satisfy applicable regulations. See Pierre-Paul, 930 F.3d at 690.
The notices Martinez-Lopez and her son received satisfied the relevant
regulations. See 8 C.F.R. §§ 1003.15, 1003.26; see also Santos-Santos v. Barr,
917 F.3d 486, 490 (6th Cir. 2019) (listing regulatory requirements for notices
to appear). Although they did not specify a date and time for the appearance,
the regulations require that information only “where practicable.” 8 C.F.R.
§ 1003.18(b). Moreover, any defect was cured by the notices Martinez-Lopez
and her son received just over a month later. 1 As a result, the notices vested
the IJ with jurisdiction.
IV.
A.
Because the immigration court had jurisdiction, we turn to the merits of
Martinez-Lopez’s petition. An applicant for asylum must demonstrate that she
1 Martinez-Lopez briefly argues that she and her son may be eligible for voluntary
removal under 8 U.S.C. § 1229c(b)(1). A requirement for voluntary removal is that “the alien
has been physically present in the United States for a period of at least one year immediately
preceding the date the notice to appear was served under section 1229(a) of this title.” 8
U.S.C. § 1229c(b)(1)(A). Martinez-Lopez contends that, because she and her son never
received a valid notice to appear, they have satisfied this requirement by living in the United
States for over a year. She requests remand to the IJ to consider whether she and her son
fulfill section 1229c(b)(1)’s other requirements. Pierre-Paul forecloses her argument. The
immigration court cured any defect in the original notices when it sent the notices of hearing
in December 2015, less than two months after Martinez-Lopez and her son entered the
United States. See Pierre-Paul, 930 F.3d at 690–91.
4
Case: 18-60393 Document: 00515223736 Page: 5 Date Filed: 12/04/2019
No. 18-60393
is a “refugee” under the Immigration and Nationality Act. 8 U.S.C.
§ 1158(b)(1)(B)(i). A refugee is a person outside her country of nationality who
“is unable or unwilling to return to . . . that country because of persecution or
a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” Id.
§ 1101(a)(42)(A). Persecution is extreme; it is more than discrimination,
harassment, or threats unaccompanied by physical harm. Eduard v. Ashcroft,
379 F.3d 182, 187 n.4, 188 (5th Cir. 2004). It also must be motivated, at least
in part, by one of the five protected grounds enumerated in the statute. Girma
v. INS, 283 F.3d 664, 667 (5th Cir. 2002) (per curiam).
A petitioner requesting withholding of removal must make a similar
showing but shoulders a greater burden: she must demonstrate a “clear
probability” of persecution on account of one of the five protected grounds if she
returns to her home country. Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir.
2018). The “clear probability” standard requires more certainty than “a well-
founded fear”; it means that persecution upon return is “more likely than not.”
Id.
The IJ denied Martinez-Lopez’s requests for asylum and withholding of
removal. She first determined that Martinez-Lopez’s “unfortunate”
experiences did not amount to persecution. She next found that Martinez-
Lopez had not demonstrated that any future persecution against her would be
motivated by a protected ground.
The evidence does not compel a contrary result. Although Martinez-
Lopez credibly testified about a tragic course of events, there was substantial
evidence to conclude that the hardships she experienced—namely, threats and
men following her—did not constitute past persecution. We have held that
“mere denigration, harassment, and threats” are ordinarily not extreme
enough to be considered persecution. Eduard, 379 F.3d at 188; see also
5
Case: 18-60393 Document: 00515223736 Page: 6 Date Filed: 12/04/2019
No. 18-60393
Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006). Indeed, we have
affirmed IJ determinations that even more severe mistreatment than what
Martinez-Lopez experienced fell short of persecution. See, e.g., Mikhael v. INS,
115 F.3d 299, 304 (5th Cir. 1997) (approving IJ finding of no persecution when
an applicant and his family suffered kidnapping, detention, torture, bombing,
theft, and other violence); see also id. n.4 (collecting cases approving IJ findings
of no persecution despite even more extreme mistreatment).
Recognizing this precedential hurdle, Martinez-Lopez also points to the
deaths of her family members and the economic injury she suffered because
she was forced to leave her employment. But although these kinds of harms
can constitute persecution, the persecutor must inflict them intending to target
the asylum applicant. See Kane v. Holder, 581 F.3d 231, 239 (5th Cir. 2009)
(approving Board ruling that the female genital mutilation of an asylum
applicant’s daughters could not constitute persecution of the applicant unless
done with the purpose of emotionally harming the applicant himself); Ahmed
v. Gonzales, 467 F.3d 669, 674 (7th Cir. 2006) (approving finding that an
asylum applicant’s economic hardships did not constitute persecution, in part,
because no evidence indicated that his difficulties were “the result of deliberate
punishment”). Martinez-Lopez did not testify that her relatives’ murders were
aimed at injuring her, nor did she assert that the gang members who
threatened her at work did so to cause her economic harm. As a result, these
events do not show past persecution.
The record also does not compel a finding that Martinez-Lopez
demonstrated a well-founded fear—much less a clear probability—that her
repatriation would result in persecution based on a protected ground. Because
she did not establish past persecution, she cannot invoke a presumption of
future persecution under 8 C.F.R. § 1208.16(b)(1)(i). Instead, she must “have
a subjective fear of persecution, and that fear must be objectively reasonable.”
6
Case: 18-60393 Document: 00515223736 Page: 7 Date Filed: 12/04/2019
No. 18-60393
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001) (per curiam). She
contends that she will be persecuted because of her membership in a particular
social group 2 (her brother’s family) and her political belief in the rule of law (as
opposed to the rule of gangs).
Assuming the validity of these protected grounds, substantial evidence
supports the IJ’s finding that Martinez-Lopez failed to show a connection
between them and any persecution she has faced or will face. Martinez-Lopez
admitted that she did not know why her brother, relatives, or father were
killed. See Mariscal-Romo v. Sessions, 729 F. App’x 310, 313 (5th Cir. 2018)
(per curiam) (finding that an asylum applicant’s inability to explain the motive
behind her relatives’ murders supported the Board’s determination that she
was not persecuted on account of her family membership). She also did not say
whether the men who followed her and her family were the same people who
killed her brother, nor did she offer a reason as to why the men followed them.
No one ever threatened her or her family because they filed police reports, and
no one spoke directly to her about her brother’s murder.
In addition, Martinez-Lopez did not tie her interactions with gang
members to her brother or her opinions on the rule of law. She admitted that
she did not know if the threats she received at the cell phone store were related
to her brother’s death. To the contrary, she said that the gang members
threatened her and her fellow employees to steal new SIM cards. Gang
members have continued to go to the store to get SIM cards since Martinez-
Lopez left for the United States. See Shaikh v. Holder, 588 F.3d 861, 864 (5th
Cir. 2009) (approving an IJ’s determination that an applicant for withholding
2 For the first time on appeal, Martinez-Lopez argues that the definition of a
“particular social group” is unconstitutionally vague. Because she did not present this
argument to the Board, we lack jurisdiction to review it. See Omari v. Holder, 562 F.3d 314,
318–19 (5th Cir. 2009).
7
Case: 18-60393 Document: 00515223736 Page: 8 Date Filed: 12/04/2019
No. 18-60393
of removal failed to show persecution on account of his religion because the
persecutor “demanded money from all business people in his neighborhood”).
Martinez-Lopez’s testimony thus does not support, let alone require, a finding
that she and her family were “the special targets of brutality.” Majd v.
Gonzales, 446 F.3d 590, 596 (5th Cir. 2006).
The evidence does not compel a finding in Martinez-Lopez’s favor on
either her asylum or withholding of removal requests.
B.
A petitioner seeking protection under the CAT must show that it is more
likely than not that she will be tortured if she returns to her country of origin.
Chen v. Gonzales, 470 F.3d 1131, 1141 (5th Cir. 2006). “Torture is defined as
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . by or at the instigation of or with the
consent or acquiescence of a public official . . . .” 8 C.F.R. § 208.18(a)(1). To
show acquiescence by a public official, a petitioner must demonstrate that the
government is willfully blind to the torture. Chen, 470 F.3d at 1141. Said
differently, an official must be aware of the torture and take no action to
protect the victim. Id. at 1142.
As with Martinez-Lopez’s other claims, there is substantial evidence to
support the IJ’s denial of protection under the CAT. First, Martinez-Lopez has
not shown that it is more likely than not that she will be tortured if she returns
to Honduras. She never alleged that she or her son were the victims of torture
when they lived in Honduras. See 8 C.F.R. § 208.16(c)(3)(i) (listing “[e]vidence
of past torture inflicted upon the applicant” as a factor in assessing a CAT
claim). And she admitted that her mother and sisters had relocated to another
part of Honduras, where they had remained undisturbed for over a year. See
id. § 208.16(c)(3)(ii) (listing “[e]vidence that the applicant could relocate to a
8
Case: 18-60393 Document: 00515223736 Page: 9 Date Filed: 12/04/2019
No. 18-60393
part of the country of removal where he or she is not likely to be tortured” as a
factor in assessing a CAT claim).
Moreover, Martinez-Lopez has not pointed to evidence establishing that
Honduran authorities would acquiesce to the torture of her and her son.
Although the police did not investigate many of the crimes affecting Martinez-
Lopez’s family, they did arrest a gang member in connection with her relatives’
murders. And although the record contains reports of some Honduran
authorities working with gangs, those same reports indicate that the
Honduran government is working to combat both corruption and gang violence.
See Chen, 470 F.3d at 1142. In sum, the general allegations Martinez-Lopez
makes regarding the unwillingness of Honduran police to investigate gang
violence “may weigh against [the IJ’s] conclusion, [but] they do not compel the
opposite conclusion.” Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir.
2015).
V.
For the foregoing reasons, we DENY the petition for review.
9