Mamerto Davila-Mejia v. Michael B. Mukasey ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2567
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Mamerto Davila-Mejia; *
Jefry Davila-Crispin; *
Yocisel Davila-Crispin; *
Bekyer Davila-Crispin; *
Aura Elizabeth Crispin-Vicente, *
*
Petitioners, *
* Petition for Review of a
v. * Final Decision of the Board
* of Immigration Appeals.
Michael Mukasey, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: March 14, 2008
Filed: July 7, 2008
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Before BYE, SMITH, and COLLOTON, Circuit Judges.
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SMITH, Circuit Judge.
Aura Elizabeth Crispin-Vicente, Mamerto Davila-Mejia, Jefry Davila- Crispin,
Yosicel Davila-Crispin, and Beyker Davila-Crispin, natives and citizens of Guatemala,
petition for review of an order of the Board of Immigration Appeals (BIA) affirming
the immigration judge's (IJ) denial of their applications for asylum and withholding
of removal. We deny the petition for review.
I. Background
Petitioners, a family of five, entered the United States without inspection in
June 2003. That same month, the Department of Homeland Security (DHS)
commenced removal proceedings charging petitioners as aliens present without being
admitted or paroled pursuant to section 212(a)(6)(A)(I) of the Immigration and
Nationality Act (INA). Also in June 2003, petitioners applied for asylum based on
their membership in a particular social group—competing family business owners.
The facts that underlie the asylum application are as follows. In December
1999, petitioners opened a bar in Guatemala. One year later, Francisco Paz-Perez
opened a bar next door. Petitioners' asylum claims involve Paz-Perez, their business
competitor. According to testimony and the asylum application, the problems started
in January 2001 when two of petitioners' employees were beaten by Paz-Perez. After
the employees reported the assault to the local authorities, Paz-Perez accused
petitioner Crispin-Vicente of stealing money from one of Paz-Perez's employees.
Petitioner Crispin-Vicente was later found not guilty of these charges after a trial.
During the time of these proceedings, Paz-Perez threatened petitioners claiming that
he would ruin them financially, that the children would pay, and that he would kill
Crispin-Vicente.
On October 18, 2001, petitioners received a letter from Paz-Perez threatening
that if they did not pay him 50,000 quetzales he would kidnap their children and burn
their delivery truck. Petitioners testified that they reported this threat to the police and
that the police said that they would investigate but did nothing.
Two months later, petitioner Davila-Mejia was robbed and beaten by five
masked men on the highway from Guatemala City to petitioner's home in Peten.
Davila-Mejia suffered similar assaults in February 2002, April 2002, September 2002,
and December 2002. Davila-Mejia stated that he reported these incidents to the
authorities but they "never did anything." Petitioners testified that Paz-Perez was
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behind these attacks and they fear that, if removed to Guatemala, the problems would
continue. Following these attacks, petitioners felt forced to close their business and
Davila-Mejia found employment with a petroleum company. Petitioners subsequently
left Guatemala.
On February 7, 2006, the IJ denied petitioners' application for asylum and
withholding of removal. The IJ found that petitioners had not demonstrated that these
alleged acts of past mistreatment perpetrated by Paz-Perez were on account of their
political opinion or any of the other statutorily enumerated grounds. According to the
IJ, petitioners failed to establish that they were mistreated on account of their
membership in a particular social group. The record contained no evidence that any
harm from Paz-Perez had been or would be motivated by an actual or imputed
statutory ground. Also, the IJ denied petitioners voluntary departure because they had
not been physically present in the United States for one year immediately preceding
the date that they were served their Notices to Appear.
On May 31, 2007, the BIA dismissed petitioner's appeal. The BIA agreed with
the IJ's conclusions for the reasons stated in the IJ's opinion. The BIA reiterated the
IJ's conclusion that petitioners failed to seek asylum on the basis of any statutorily
protected ground. Petitioners contended that they were targeted as business owners;
however, petitioners failed to show that anyone sought to persecute them on account
of any of the five factors enumerated in section 101(a)(42)(A) of the INA.
Petitioners now seek review of the orders denying their applications for asylum
and withholding of removal.
II. Discussion
Petitioners challenge the BIA's decision affirming the IJ's denial of their
application for asylum and withholding of removal. Petitioners argue that the IJ and
the BIA erred in finding that petitioners have not shown that they were persecuted, or
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that they face persecution, on account of any statutorily enumerated ground.
Petitioners allege that they were targeted for persecution and face future persecution
based on their membership in a discrete social group—namely "competing family
business owners."
We review the BIA's decision, as it is the final agency decision; however, to the
extent that the BIA adopted the findings or the reasoning of the IJ, we also review the
IJ's decision as part of the final agency action. Falaja v. Gonzales, 418 F.3d 889, 894
(8th Cir. 2005). "A denial of asylum is reviewed for abuse of discretion; underlying
factual findings are reviewed for substantial support in the record." Hassan v.
Gonzales, 484 F.3d 513, 516 (8th Cir. 2007). We must uphold an IJ's factual
determinations if they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole. Id. We review the BIA's legal
determinations de novo, according substantial deference to the BIA's interpretation of
the statutes and regulations it administers. Id.
"Any alien who is physically present in the United States or who arrives in the
United States . . . irrespective of such alien's status, may apply for asylum . . . ."
8 U.S.C. § 1158(a)(1). To qualify for asylum, the burden is on the applicant to
establish that he or she is a refugee as defined in the statute. 8 C.F.R. § 1208.13(a).
Pursuant to section 101(a)(42) of the INA, a refugee is "any person who is outside any
country of such person's nationality . . . who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the protection of, 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 .
. . ." 8 U.S.C. § 1101(a)(42)(A) (emphasis added).
An applicant for asylum may prove eligibility by establishing past persecution
on account of one of the statutorily enumerated grounds, and if the applicant shows
past persecution, he or she will be presumed to have a well-founded fear of future
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persecution. Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir. 2004). But if an
applicant attempts to establish a well-founded fear of future persecution without
having shown past persecution then "an alien must show the fear is both subjectively
genuine and objectively reasonable. . . . To overcome the BIA's finding that
[petitioner] lacked a well-founded fear of persecution, [petitioner] must show the
evidence he presented was so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution." Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th
Cir. 1993) (internal citations and quotations omitted).
"Persecution is the infliction or threat of death, torture, or injury to one's person
or freedom, on account of race, religion, nationality, membership in a particular social
group, or political opinion." Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.
2002). Persecution requires harsh treatment and "[l]ow-level intimidation and
harassment alone do not rise to the level of persecution" nor does mere economic
detriment. Makatengkeng v. Gonzales, 495 F.3d 876, 882 (8th Cir. 2007). "As for
slurs and harassment from private individuals, these do not constitute persecution."
Rife v. Ashcroft, 374 F.3d 606, 612 (8th Cir. 2004) (quoting Fisher v. INS, 291 F.3d
491, 497 (8th Cir. 2002)).
Petitioners allege that they were persecuted on account of the statutorily
enumerated ground of "membership in a particular social group" of competing family
business owners. The BIA construes "membership in a particular social group" to refer
to persons who hold an immutable characteristic, or common trait such as sex, color,
kinship, or in some cases shared past experiences. Matter of Acosta, 19 I&N Dec. 211,
233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I&N Dec.
439 (BIA 1987). The group characteristic must be one "that the members of the group
either cannot change, or should not be required to change because it is fundamental
to their individual identities and consciences." Id.
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Recently, in Matter of A-M-E & J-G-U, the BIA expounded on the meaning of
a "particular social group." 24 I&N Dec. 69 (BIA 2007). In that case, the BIA found
that respondents failed to establish that their status as affluent Guatemalans gave them
sufficient social visibility to be perceived as a group by society—generally, the shared
characteristic of the group should be recognized by others in the community and the
group should be perceived as a group by society. Id. at 74. The BIA noted that
respondents had not presented evidence indicating that wealthy Guatemalans were
recognized as a group that is at a greater risk of crime in general or of extortion or
robbery in particular. Id. at 74–75. Rather, the BIA found that the record reflected that
violence and crime in Guatemala appear to be pervasive at all socio-economic levels
and that respondents had not provided evidence that the general societal perception
would be otherwise. Id. at 75. The BIA also found that describing the group as
"wealthy" or "affluent" was too amorphous, and not sufficiently particular, to create
a benchmark for determining group membership—people's ideas of what those terms
mean can vary. Id. At 76. The BIA noted that the terms potentially encompass a large
swath of people and that respondents had not demonstrated that wealthy Guatemalans
constituted a particular social group. Id.
In this case, the BIA relied on Matter of A-M-E & J-G-U in affirming the IJ's
finding that petitioners had not demonstrated that the alleged acts of past mistreatment
by Paz-Perez were on account of any statutorily enumerated ground, including their
membership in a "particular social group." We agree with the BIA and conclude that
petitioners did not establish their membership in a particular social group within the
meaning of the INA.
As in Matter of A-M-E & J-G-U, petitioners here failed to establish that their
status as "competing family business owners" gave them sufficient social visibility to
be perceived as a group by society. In particular, petitioners did not present evidence
indicating that "family business owners" in Guatemala were recognized as a group that
is at a greater risk of crime in general or of extortion, robbery, or threats in particular.
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There is no record evidence that petitioners' mistreatment by Paz-Perez and being
robbed and extorted are associated with petitioners being members of a social group
identifiable as "family business owners." Also, under BIA precedent, the term "family
business owner" is too amorphous to adequately describe a social group. We conclude
that respondents have not established that the alleged acts of mistreatment by Paz-
Perez were on account of their membership in a particular social group, or any of the
other enumerated grounds, under the INA.
Petitioners also applied for withholding of removal, and they petition for review
of the denial of that application. We conclude that the BIA did not err in denying
withholding of removal.
An alien may not be removed if the alien shows there is a clear
probability that his life, or freedom would be threatened in [the alien's]
country because of the alien's race, religion, nationality, membership in
a particular social group or political opinion. The standard for
withholding of removal, a clear probability of persecution, is more
rigorous than the well-founded fear standard for asylum. An alien who
fails to prove eligibility for asylum cannot meet the standard for
establishing withholding of removal.
Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005) (internal quotations and citations
omitted). Because petitioners did not meet the standard for asylum, they therefore
have not met the higher standard required for withholding of removal.
III. Conclusion
For the foregoing reasons, we deny the petition for review.
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