Marla Lopez-Diego v. Jefferson B. Sessions, III , 704 F. App'x 576 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0631n.06
No. 17-3160 FILED
Nov 14, 2017
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
MARLA PATRICIA LOPEZ-DIEGO, )
DERIAN RAMIREZ-LOPEZ, )
)
ON PETITION FOR REVIEW
Petitioners, )
OF A FINAL ORDER OF THE
)
BOARD OF IMMIGRATION
v. )
APPEALS
)
JEFFERSON B. SESSIONS, III, U.S. )
ATTORNEY GENERAL, )
OPINION
)
Respondent. )
)
Before: GUY, MOORE, and ROGERS, Circuit Judges.
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
No. 17-3160, Lopez-Diego et al. v. Sessions
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 8 U.S.C. § 1182(a)(6)(A)(i). Id. at 483 (Lopez-Diego Notice to Appear at 1); id. at
530 (Ramirez-Lopez Notice to Appear at 1). They were detained for two days and were then
released. Id. at 232 (Removal Proceeding Tr. at 90). Subsequently, Lopez-Diego and her son
moved to Columbus, Ohio. Id. at 233 (Removal Proceeding Tr. at 91).
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
Proceeding Tr. at 18); id. at 298–316 (Lopez-Diego Amended I-589). Ramirez-Lopez also filed
an I-589 application for asylum, withholding of removal, and protection under the CAT.1 Id. at
1
Although this document is entitled “Respondent’s Amended I-589, Application for Asylum and
Withholding of Removal,” this was Ramirez-Lopez’s first independent application. A.R. at 159 (Removal
2
No. 17-3160, Lopez-Diego et al. v. Sessions
505–22 (Ramirez-Lopez I-589). In their applications, the petitioners asserted two main reasons
behind their fear of returning to Honduras. First, Lopez-Diego and Ramirez-Lopez claim that
they face discrimination as members of the Garifuna ethnic group. Id. at 311 (Lopez-Diego
Amended I-589 Add. at 1); id. at 518 (Ramirez-Lopez I-589 Add. at 1). Second, after Ramirez-
Lopez’s father was murdered, Lopez-Diego feared that the unidentified perpetrators would target
their children, specifically their eldest son Derian.2 Id. at 312 (Lopez-Diego Amended I-589
Add. at 2); id. at 519 (Ramirez-Lopez I-589 Add. at 2).
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
Proceeding Tr. at 18). Ramirez-Lopez had previously been included only as a derivative applicant on his mother’s
I-589. Id.
2
In addition to Derian Ramirez-Lopez, who is the rider petitioner in this case, Lopez-Diego has two
younger sons, Kevin and Kelvin Ramirez-Lopez, who still reside in Honduras. Id. at 301 (Lopez-Diego Amended I-
589 at 3).
3
No. 17-3160, Lopez-Diego et al. v. Sessions
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 testified that she chose to come to the United States in
February 2014 because of the discrimination she faced in Honduras, her fears about further
violence from Ramirez’s unidentified murderers, and the high crime rate in Honduras in general.
Id. at 215–19 (Removal Proceeding Tr. at 73–77).
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
4
No. 17-3160, Lopez-Diego et al. v. Sessions
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
5
No. 17-3160, Lopez-Diego et al. v. Sessions
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 opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “[W]e
are also empowered to review the IJ’s opinion to the extent that the BIA adopts that opinion.”
Marikasi v. Lynch, 840 F.3d 281, 287 (6th Cir. 2016) (quoting Gaye v. Lynch, 788 F.3d 519, 526
(6th Cir. 2015)). “The agency’s findings of fact are reviewed for substantial evidence, and
3
The BIA decision discussed only the IJ’s determinations as to Lopez-Diego and treated Ramirez-Lopez’s
application as wholly derivative of his mother’s application. Id. at 3 (BIA Dec. at 1 n.1).
6
No. 17-3160, Lopez-Diego et al. v. Sessions
questions of law are reviewed de novo.” Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir.
2012). Under the substantial-evidence standard, “we will not reverse a factual determination . . .
unless we find ‘that the evidence not only supports a contrary conclusion, but compels it.’”
Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (quoting Marku v. Ashcroft, 380 F.3d 982,
986 (6th Cir. 2004)); 8 U.S.C. § 1252(b)(4)(B). To the extent that the IJ found the petitioners
credible, we treat the representations made in their applications and testimony as true. Stserba v.
Holder, 646 F.3d 964, 972 (6th Cir. 2011).
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 . . . .” 8 U.S.C. § 1158(b)(1)(A). A
“refugee” is defined as an alien “who is unable or unwilling to return” to her 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 . . . .” 8 U.S.C. § 1101(a)(42). The
applicant for asylum bears the burden of proof to establish that she is a refugee. 8 U.S.C.
§ 1158(b)(1)(B)(i). Furthermore, in order to do so, “the applicant must establish that race,
religion, nationality, membership in a particular social group, or political opinion was or will be
at least one central reason for persecuting the applicant.” Id.
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
7
No. 17-3160, Lopez-Diego et al. v. Sessions
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 must present evidence establishing
an objective situation under which his fear can be deemed reasonable.” [Allabani
v. Gonzales, 402 F.3d 668, 674 (6th Cir. 2005)] (internal quotation marks
omitted). “The applicant need not demonstrate that he will probably be persecuted
if returned because one can certainly have a well-founded fear of an event
happening when there is less than a 50% chance of the occurrence taking place.”
Selami v. Gonzales, 423 F.3d 621, 625 (6th Cir.2005) (internal quotation marks
omitted).
Id.
8
No. 17-3160, Lopez-Diego et al. v. Sessions
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
4
Because the record supports the conclusion that the petitioners’ eviction was not on account of a protected
ground, we do not reach the question of whether the BIA was correct to hold that an alien cannot establish
persecution if the property confiscated by the government was owned by a family member as opposed to the alien
herself.
9
No. 17-3160, Lopez-Diego et al. v. Sessions
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 F. App’x 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 directed violence from the unidentified
killers of Ramirez and generalized violence due to the high crime rate. Id. at 109 (IJ Dec. at 11).
Persecution, however, is the infliction of harm “by the government, or persons the government is
unwilling or unable to control.” Khalili, 557 F.3d at 436 (quoting Pilica, 388 F.3d at 950).
“Petitioners must have been ‘specifically targeted by the government for abuse based on a
statutorily protected ground,’ not merely victimized ‘by indiscriminate mistreatment’ or ‘random
crime.’” Stserba, 646 F.3d at 972 (quoting Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.
2005)). Because the petitioners have not shown that the violence they fear is from the
government or from parties the government is unwilling or unable to control, they have not
established that they fear future persecution. Umaña-Ramos v. Holder, 724 F.3d 667, 670–71
(6th Cir. 2013) (“General conditions of rampant gang violence alone are insufficient to support a
5
Furthermore, the petitioners did not produce any evidence that any economic discrimination they faced
was due to the government or to persons the government was unwilling or unable to control, as opposed to
discrimination by private parties.
10
No. 17-3160, Lopez-Diego et al. v. Sessions
claim for asylum.”); Zaldana Menijar v. Lynch, 812 F.3d 491, 501 (6th Cir. 2015)
(“[W]idespread crime and violence does not itself constitute persecution on account of a
protected ground.”).
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.” 8 U.S.C. § 1231(b)(3)(A). “The
alien must establish a ‘clear probability of persecution,’ meaning that ‘it is more likely than not
that the alien would be subject to persecution.’” Al-Ghorbani v. Holder, 585 F.3d 980, 993–94
(6th Cir. 2009) (quoting INS v. Stevic, 467 U.S. 407, 413, 424 (1984)). “It is more difficult to
obtain withholding of removal than it is to obtain asylum” because the standard of proof for
withholding of removal is more stringent than that for asylum. Bi Qing Zheng, 819 F.3d at 294.
“Therefore, if an applicant fails to satisfy the lower burden of proof for asylum, it follows that he
also fails to satisfy the higher burden required for withholding of removal.” Id. Because Lopez-
Diego and Ramirez-Lopez have not met the requirements for establishing their eligibility for
asylum, they cannot meet the heightened requirements for withholding of removal.
Consequently, we deny their petition for review regarding their withholding of removal
application.
11
No. 17-3160, Lopez-Diego et al. v. Sessions
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.”
8 C.F.R. § 1208.16(c)(2); see also Ramaj v. Gonzales, 466 F.3d 520, 532 (6th Cir. 2006).
“‘Torture,’ in any of its myriad manifestations, must entail the intentional infliction of severe
mental or physical pain upon an individual ‘by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.’” Alhaj v. Holder,
576 F.3d 533, 539 (6th Cir. 2009) (quoting 8 C.F.R. § 208.18(a)(1)). “[T]orture may be based on
any reason so long as it is inflicted by, instigated by, or done with the consent or acquiescence of
a government official or someone acting in [an] official capacity.” Hamida v. Gonzales, 478
F.3d 734, 741 (6th Cir. 2007). In other words, unlike a claim for asylum or withholding of
removal, “[n]o protected-ground nexus is required” to qualify for protection under the CAT.
Haider, 595 F.3d at 289.
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
12
No. 17-3160, Lopez-Diego et al. v. Sessions
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.
13