Linabel Mejia-Ramos v. William P. Barr , 934 F.3d 789 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1911
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Linabel Mejia-Ramos
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: May 14, 2019
Filed: August 15, 2019
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Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
Petitioner Linabel Mejia-Ramos (Linabel) seeks review of the Board of
Immigration Appeals' (BIA) denial of her request for asylum and/or withholding of
removal. Because the record does not compel reversal of the BIA's determinations,
we affirm.
I. BACKGROUND
Linabel is a native and citizen of Honduras who entered the United States on
or about January 3, 2014, when she was 26 years old. On January 22, 2014, the
Department of Homeland Security (DHS) initiated removal proceedings against her
and Linabel filed an application for asylum and for withholding of removal.
During the removal proceedings, Linabel testified that she is married, has one
child, and has family still remaining in Honduras, including her mother and four
siblings. However, her father and one of her brothers were kidnapped in 2008 and
have not been heard from since that time. On or about July 16, 2008, on a day that her
family attended a funeral of a friend within ten minutes of their house, Linabel's father
and brother approached an intersection in their vehicle. When they stopped due to
traffic, they were kidnapped for ransom money by men wearing police vests. Other
family members were not with them when this occurred. Witnesses later told Linabel
that six people got out of a car wearing vests with the initials "DGIC" on them, which
Linabel testified was, at least at one time, a division of the police department. Linabel
was not certain if that particular division still existed, however. Linabel also noted
that oftentimes gang members wore such vests as well. Linabel and her mother went
to several police stations for assistance regarding the kidnapping but there has been
no resolution to-date. The family received ransom calls that day from unknown
individuals but the family never heard from anyone again regarding ransom, the
whereabouts, or fate of Linabel's father and brother.
Linabel testified that her father was a businessman who owned a coffee
plantation and a carpenter's shop, was known throughout the community, and lived
comfortably. Another notable incident involving Linabel occurred a few days after
the kidnapping of her father and brother. Linabel and her cousin were driving in a
vehicle and a car passed them on the road. The car then stopped abruptly as if to cut
them off. Linabel's cousin was able to turn around and avoid any confrontation with
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that vehicle and the other vehicle proceeded on its way. Then in 2013, five years after
the kidnapping of her family members and her own car blockage incident, Linabel
received a phone call from an anonymous person who told her that what happened to
her father and brother would happen to her. She also testified that another friend of
her father, Renan Zuniga, was also kidnapped. Zuniga helped Linabel's family after
her father was kidnapped, and was kidnapped himself one day when he was waiting
in his vehicle while Linabel had a meeting with a woman regarding work at the
carpentry shop. Linabel does not know anything about what happened to Zuniga after
that day but believes he was kidnapped because he tried to help Linabel's family. As
mentioned, Linabel's mother and siblings remain in Honduras and have not been
threatened nor have they experienced anything similar to what happened to Linabel's
father and brother. However, Linabel believes that individuals are envious of her
family because of their financial status and she remains in fear of returning to
Honduras.
The Immigration Judge (IJ) found Linabel's testimony credible but held that she
fell short of establishing the requisite level of harm for the relief sought. The IJ further
held that Linabel failed to show that the government is unable or unwilling to control
the individuals she fears, and further failed to establish that the alleged persecution
was on account of her membership in a particular social group, which she claimed was
her membership in the Mejia-Ramos family. The IJ also noted that despite Linabel's
credible fears of returning to Honduras, she failed to establish that a reasonable person
in her position would fear persecution upon return. It necessarily followed from these
findings that Linabel failed to meet the more rigorous standard required for the relief
of withholding of removal under the Immigration and Nationality Act (INA). The
BIA agreed with the IJ, found no error in the IJ's findings of fact, and ultimately
dismissed Linabel's appeal. The BIA specifically stated that the record in this case did
not indicate that Linabel's family membership was or will be at least one central
reason for the harm she experienced, or that she may suffer upon her return to
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Honduras. Indeed, the BIA concluded that the criminals targeted Linabel for no other
reason than to increase their wealth through criminal activity.
II. DISCUSSION
"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." Davila-Mejia v. Mukasey, 531
F.3d 624, 627 (8th Cir. 2008). "A denial of asylum is reviewed for abuse of
discretion; underlying factual findings are reviewed for substantial support in the
record." Id. (quoting Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir. 2007)). The
agency's decision denying a request for asylum and withholding of removal will be
upheld if supported by substantial evidence in the record, an "extremely deferential
standard of review." Al Yatim v. Mukasey, 531 F.3d 584, 587 (8th Cir. 2008)
(quoting Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir. 2005)). Under the
substantial evidence standard, this court will not reverse the agency's decision unless
the "petitioner demonstrates that the evidence was so compelling that no reasonable
fact finder could fail to find in favor of the petitioner." Mayorga-Rosa v. Sessions,
888 F.3d 379, 382 (8th Cir. 2018) (quoting De Castro-Gutierrez v. Holder, 713 F.3d
375, 379 (8th Cir. 2013)).
A. Asylum
"The Attorney General has discretion to grant asylum to a refugee." Matul-
Hernandez v. Holder, 685 F.3d 707, 711 (8th Cir. 2012) (quoting Al Yatim, 531 F.3d
at 587). To establish eligibility for asylum, an applicant bears the burden of proving
that he or she is a refugee as defined by the INA. 8 C.F.R. § 1208.13(a). A refugee
is a person "unwilling or unable to return to his home country 'because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
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membership in a particular social group, or political opinion.'" Vonhm v. Gonzales,
454 F.3d 825, 827 (8th Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A)).
"Persecution includes the credible threat of death, torture, or injury to one's
person or liberty on account of a protected ground." Al Yatim, 531 F.3d at 587.
"'Persecution is an extreme concept' that 'does not include low-level intimidation and
harassment.'" Lopez-Amador v. Holder, 649 F.3d 880, 884 (8th Cir. 2011) (quoting
Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th Cir. 2004)). "Absent physical harm, the
incidents of harassment, unfulfilled threats of injury, and economic deprivation are not
persecution." Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir. 2007). And,
"[w]hile acts of violence against a family member may demonstrate a well-founded
fear of persecution, those acts must be tied to the petitioner through a pattern of
persecution such that the petitioner would also reasonably fear persecution." Id.Additionally, persecution requires that the asylum applicant show that "the assaults
were either condoned by the government or were committed by private actors 'that the
government was unwilling or unable to control.'" Beck v. Mukasey, 527 F.3d 737,
740 (8th Cir. 2008) (quoting Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.
2005)).
"A well-founded fear is one that is both subjectively genuine and objectively
reasonable." Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997). "Subjectively, the
petitioner must demonstrate that he genuinely fears persecution; objectively, the
petitioner must show 'credible, direct, and specific evidence that a reasonable person
in the [petitioner's] position would fear persecution' if returned." Quomsieh, 479 F.3d
at 605 (alteration in original) (quoting Feleke, 118 F.3d at 598). "If an applicant
proves past persecution, the applicant is entitled to a rebuttable presumption of a well-
founded fear of future persecution." Flores v. Holder, 699 F.3d 998, 1003 (8th Cir.
2012).
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The administrative record does not compel the conclusions that the BIA and the
IJ misconstrued the facts or that Linabel met her burden of proving past persecution
or a well-founded fear of future persecution based on a protected status. Mayorga-
Rosa, 888 F.3d at 382. We need not go further than Linabel's claims of persecution
to make this determination.
Linabel failed to establish that she was persecuted. In so holding we do not
diminish the fact that Linabel experienced the tragic loss of her father and brother, was
acquainted with a man shortly after her family's disappearance who was also
kidnapped without explanation, had the startling experience of being cut off in a
vehicle on the roadway at a time of great unease for her, and even five years later
received a phone call threatening "the same thing" would happen to her. None of
these events, however, rise to the level of persecution. While the kidnapping of her
father, brother, and family friend are more troublesome, the evidence regarding the
context of those disappearances supports the agency's determination that Linabel falls
short of establishing that she, too, is in imminent, grave danger of experiencing the
same, or that the effect of the kidnappings on Linabel injured her own freedom to the
point of constituting persecution. Rather, the evidence establishes that the
kidnappings were the result of criminal activity in the area by persons seeking wealth.
And, Linabel's other experiences of intimidation and unfulfilled threats are insufficient
to compel a finding of persecution. See Quomsieh, 479 F.3d at 606; Lengkong v.
Gonzales, 478 F.3d 859, 863 (8th Cir. 2007). Linabel herself was never physically
attacked while living in Honduras and her own mother and siblings remain in
Honduras in the same location and are not subject to similar threats. Nothing in this
record compels a conclusion different than the one arrived at by the agency.
Regarding future persecution, the evidence does not compel a finding contrary
to the agency's determination that Linabel was unable to show a well-founded fear of
future persecution. Although Linabel credibly testified about her subjective fear of
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returning to Honduras, she failed to establish the objective element. Zhuang v.
Gonzales, 471 F.3d 884, 890 (8th Cir. 2006) (noting both the subjective and objective
requirements). The agency found persuasive the fact that Linabel's family continues
to reside in Honduras unharmed, thus diminishing and undermining any objective fear
of future persecution. Alyas v. Gonzales, 419 F.3d 756, 761 (8th Cir. 2005)
(establishing that the reasonableness of a fear of persecution is diminished when
family members remain in the native country unharmed, and the applicant himself has
not been singled out for abuse). Substantial evidence supports the agency's finding
that Linabel's stated fears of future persecution were not objectively reasonable and
we affirm the denial of asylum on this basis.1
B. Withholding of Removal
Finally, "[w]ithholding of removal requires an even greater showing" than
asylum. Lopez-Amador, 649 F.3d at 884. "To obtain withholding of removal, an
alien must demonstrate a clear probability–i.e., that it is more likely than not–that he
would suffer persecution on account of a protected ground." Karim v. Holder, 596
F.3d 893, 897 (8th Cir. 2010). As such, "an alien who fails to prove eligibility for
asylum cannot meet the burden for withholding of removal." Id. Substantial evidence
thus likewise supports the BIA's denial of withholding of removal.
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We also reject Linabel's claim (raised for the first time on appeal) that she is
entitled to "humanitarian asylum" under 8 C.F.R. § 1208.13(b)(1)(iii)(A), (B). This
"court may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right." Molina v. Whitaker, 910
F.3d 1056, 1061 (8th Cir. 2018) (alteration in original) (quoting 8 U.S.C. §
1252(d)(1)). "Failure to raise an issue before the agency constitutes a failure to
exhaust administrative remedies and deprives this court of jurisdiction to hear the
matter." Id. (quoting Ixtlilco-Morales v. Keisler, 507 F.3d 651, 656 (8th Cir. 2007)).
Linabel did not seek humanitarian asylum before either the IJ or BIA.
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III. CONCLUSION
We deny the petition for review.
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