Ninoska Lopez-Amador v. Eric H. Holder Jr. ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 10-2376/3491
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Ninoska Lopez-Amador, *
*
Petitioner, *
* Petition for Review
v. * of an Order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney *
General of the United States, *
*
Respondent. *
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Submitted: May 10, 2011
Filed: August 15, 2011
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Before MELLOY and BENTON, Circuit Judges, and GRITZNER,1 District Judge.
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MELLOY, Circuit Judge.
Ninoska Lopez-Amador petitions for review of a Board of Immigration Appeals
("BIA") decision affirming an Immigration Judge's ("IJ") denial of her applications
for asylum, withholding of removal, and deferral of removal under the Convention
Against Torture ("CAT"). She also seeks review of the BIA's denial of her petition
to reopen her case based on additional evidence. We deny her petitions.
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa, sitting by designation.
I. Background
Ms. Lopez is a native and citizen of Venezuela. She was admitted to the United
States as a tourist on July 26, 2002. Her tourist visa expired in January 2003, and she
applied for and received a six-month visa extension until July 2003. She next applied
for a student visa but was denied student status in March 2003. Although the school
to which she applied advised her to return to Venezuela at that time, Ms. Lopez
remained in the United States beyond July 2003 without authorization.
The government claims it received Ms. Lopez's application for asylum and
withholding of removal on November 20, 2003.2 On October 22, 2004, Immigration
and Customs Enforcement issued a Notice to Appear and charged Ms. Lopez with
being removable pursuant to 8 U.S.C. § 1227(a)(1)(B).
Ms. Lopez filed her 2003 application pro se, and she received two continuances
to allow her to obtain an attorney. In August 2007, with the assistance of counsel, she
submitted a revised application. In the initial 2003 application, which her counsel
stated "doesn't make sense as written," Ms. Lopez alleged sexual orientation as the
reason she suffered persecution. She also answered that neither she nor any family
member was part of any groups or organizations in her home country. In the 2007
application, however, she answered this question in the affirmative, elaborating that
she "always supported" the Democratic Action Party (an anti-Hugo Chavez political
group) and that her mother and siblings in Venezuela "favor the ideas" of the party.
In this 2007 application, she also alleged primarily that her political affiliations were
the basis for persecution. In both her 2003 and 2007 applications, Ms. Lopez checked
the "No" box when asked if she was afraid of being subjected to torture in Venezuela.
2
Ms. Lopez claims she submitted an application for asylum to the United States
government in September 2003. However, the government says it did not receive this
earlier application, and Ms. Lopez’s sole proof of submission is her testimony.
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Ultimately, on October 20, 2008, Ms. Lopez received an evidentiary hearing
before an IJ. At the hearing, primarily through her own testimony, Ms. Lopez alleged
the following background facts. She holds a master's degree in finance and worked
in Caracas as a mid-level executive for a phone company and as a shipment inspector
before leaving Venezuela. Through these jobs, she achieved a certain amount of
financial success and owns two condominiums in Venezuela. She is unmarried and
has no children, but her mother and four siblings remain in Caracas.
According to Ms. Lopez, Venezuela's political and social climate began to
change unfavorably in 2001. She alleges personal involvement with the Democratic
Action Party since well before that change, beginning in 1995. Her involvement
began with helping the needy, but, starting in 2000, she claims she was actively
engaged in approximately fifteen demonstrations against the Hugo Chavez regime.
The last of these demonstrations occurred on April 11, 2002, and involved thousands
of protestors and onlookers throughout Caracas. Ms. Lopez testified that she was
caught in the middle of the crowd when soldiers attacked the group with teargas and
pellet guns. Snipers shot at those in the street from nearby buildings. Ms. Lopez said
people around her were injured and killed and that she subsequently spent five days
at home in a state of shock.
In the three months between the April 11 demonstration and Ms. Lopez's
departure for the United States, Venezuelan police stopped her vehicle at checkpoints
on ten different occasions. She believes she was targeted because officers recognized
her car, but she admits other people were also going through checkpoints throughout
Caracas and were asked the same questions, including political-affiliation inquiries.
Ms. Lopez continued to work until the end of June 2002. She testified that she
left her job in June because government restrictions on business made it difficult for
her to obtain clients. She said that she fears economic hardship if returned to
Venezuela, noting that the Chavez government has a "one property" policy that would
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require her to sell one of her two condominiums at an unfavorable price. Ms. Lopez
also fears she will be denied government jobs or services in Venezuela if she does not
abandon her political convictions. She was, however, able to renew her passport in
September 2001, while Chavez was in power. The Chavez government did not try to
prevent her from leaving the country. Additionally, Ms. Lopez was able to keep
working in Venezuela until she chose to leave her job in June 2002. Ms. Lopez also
conceded that other members of her family had not experienced trouble with the
authorities because of their beliefs or affiliations. She reported that even her mother,
who worked for a Venezuelan supreme court justice with the previous government,
had not been persecuted by the Chavez regime.
Ms. Lopez testified that she was persecuted in Venezuela for being a lesbian
and fears being harassed or jailed for her sexual orientation if she returns. She
reported an incident in Caracas in which she and her lesbian partner were walking in
a park when they were verbally ridiculed by a police officer on account of their
"immoral" lifestyle.
Ms. Lopez supported her application with documentary evidence, including a
2007 State Department Human Rights Report. This 2007 report indicates that
President Chavez has maintained lists of his political opponents who "were often
ineligible to receive government jobs or services." Ms. Lopez testified she did not
submit her Democratic Action Party card as evidence because she did not have it.
After hearing the evidence, the IJ issued an oral decision denying Ms. Lopez's
applications for relief and ordering her removed to Venezuela. The IJ found the initial
application untimely and, in the alternative, denied asylum on the merits. The IJ did
not expressly make an adverse credibility ruling, but found Ms. Lopez failed to show
she was specifically targeted or physically harmed by the government. The IJ denied
withholding of removal for the same substantive reasons and also found that Ms.
Lopez did not meet the standard required for relief pursuant to the CAT.
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Ms. Lopez appealed the IJ's decision to the BIA, and the BIA affirmed on the
same grounds. She then moved to have her case reopened, providing the BIA with
new evidence of allegedly worsening circumstances in Venezuela, including many
pages of documents that postdate her final hearing. This new evidence included: (1)
a letter from the president of the Organization of Venezuelans in Exile ("ORVEX"),
verifying Ms. Lopez's membership in the group since 2009 and asserting that the
Venezuelan government has access to a list of asylum seekers in the United States; (2)
the State Department's 2008 and 2009 Human Rights Reports for Venezuela; and (3)
additional articles regarding current events in Venezuela, including an El Nuevo
Herald article describing a database of asylum seekers being used to deny passports
to those listed and quoting a Venezuelan official bragging about its existence.
The 2009 Human Rights Report for Venezuela states that unknown assailants
physically assaulted and threatened opposition leaders in Venezuela. This report also
finds that "violence against lesbian, gay, transgender, and bisexual communities
reportedly occurred during the year," and unknown perpetrators killed thirteen
transgender individuals in Venezuela between November 2008 and May 2009.
II. Discussion
Ms. Lopez challenges the timeliness determination and the substantive
determinations that she is not entitled to asylum, withholding of removal, or relief
under the CAT. She also seeks review of the BIA's denial of her motion to reopen.
Given our resolution of the other matters, we need not address the issue of timeliness.
A. Asylum and Withholding of Removal
Asylum relief is available if a petitioner proves past persecution or a
well-founded fear of persecution on account of one of five protected classes: "race,
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religion, nationality, membership in a particular social group, or political opinion."
8 U.S.C. § 1101(a)(42)(A); see Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir. 2007).
We have defined persecution as "the infliction or threat of death, torture, or injury to
one's person or freedom for a proscribed reason." Zakirov v. Ashcroft, 384 F.3d 541,
546 (8th Cir. 2004) (internal quotation marks omitted). "Persecution is an extreme
concept" that "does not include low-level intimidation and harassment." Id. To
prevail on an asylum claim, the refugee must show evidence of persecution that is
sufficiently specific or imminent. Ladyha v. Holder, 588 F.3d 574, 577 (8th Cir.
2009). A well-founded fear of persecution is presumed, subject to rebuttal, if the
petitioner can establish past persecution; otherwise the individual bears the burden of
proving the likelihood of future persecution. 8 C.F.R. § 1208.13(b). To meet this
latter burden, the petitioner "'must show the fear is both subjectively genuine and
objectively reasonable.'" Litvinov v. Holder, 605 F.3d 548, 553 (8th Cir. 2010)
(quoting Uli v. Mukasey, 533 F.3d 950, 955 (8th Cir. 2008)). Objectively, a petitioner
"must present credible, direct, and specific evidence of facts" to show that a
reasonable person in her shoes would fear persecution if returned to her native
country. Loulou v. Ashcroft, 354 F.3d 706, 709 (8th Cir. 2003) (internal quotation
marks omitted). A petitioner can demonstrate this reasonable fear by proving a
pattern or practice of persecuting those similarly situated on account of one of the five
protected classes. 8 C.F.R. § 1208.16(b)(2).
Withholding of removal requires an even greater showing; rather than merely
a well-founded fear of persecution, a petitioner who cannot make a showing of past
persecution must demonstrate that persecution will more likely than not occur if she
is returned to her home country. Beck v. Mukasey, 527 F.3d 737, 739 (8th Cir. 2008).
As to both asylum and withholding-of-removal claims, we review the BIA's ruling
under the deferential substantial-evidence standard, treating administrative findings
of fact as "conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Eta-Ndu v. Gonzales, 411
F.3d 977, 982 (8th Cir. 2005).
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Here, the BIA found no qualifying past persecution and no well-founded fear
of future persecution. Ms. Lopez presents several arguments challenging the BIA's
findings, arguing that her allegations were sufficiently specific and detailed to show
she suffered past persecution and will be targeted for persecution upon return to
Venezuela. Concerning past persecution, she argues: (1) she was targeted by snipers
at the April 11, 2002 demonstration; (2) she was singled out at vehicle checkpoints;
and (3) she was harassed by officers in the park because of her sexual orientation. We
do not find her arguments adequately persuasive to overturn the BIA's decision.
First, the record supports the BIA's determination that Ms. Lopez was not
specifically targeted by snipers on the basis of a statutorily protected ground. Ms.
Lopez was not physically harmed during the April 11 protest, and no evidence exists
in the record to suggest that the government knew she was in the crowd of thousands
or targeted her. See Diaz v. INS, 56 Fed. Appx. 341, 342 (9th Cir. 2003). Ms. Lopez
contends that the Supreme Court's decision in Fedorenko v. United States supports her
because it stands for the proposition that being shot at in a group constitutes
persecution. 449 U.S. 490, 512 n.34 (1981) (suggesting that a concentration camp
guard "shooting at escaping inmates" qualified as persecution). However, Fedorenko
did not explore the meaning of the term persecution, and in any event, did not address
whether a specific individual in a crowd of thousands of protestors and onlookers
faces persecution on a statutorily protected ground because of some indiscriminate
firing by government forces. Under the facts of Ms. Lopez's case, we do not believe
she can establish past persecution based upon the government's actions on April 11
since the record only shows that Ms. Lopez was caught in the same situation as
thousands of members of the public who simply happened to be present in the streets
of Caracas at that moment regardless of their political affiliation.
Second, we also find no error in the BIA's factual finding that Ms. Lopez was
not singled out at vehicle checkpoints. Although Ms. Lopez alleges she was targeted
because police knew her car and knew she supported the opposition, she did not claim
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that the officers physically harmed her or refused her passage. Ms. Lopez also
concedes that individuals throughout Caracas were likewise stopped and questioned.
There is no indication the checkpoint stops she endured were in any way different
from the routine stops encountered by Venezuelans with different political beliefs.
Third, the BIA found the police officer's verbal harassment in the park does not
rise to the level of persecution that would qualify Ms. Lopez for asylum. See
Makatengkeng v. Gonzales, 495 F.3d 876, 884–85 (8th Cir. 2007) (determining that
credible fears of being ridiculed and subjected to "mere harassment," even in the
aggregate, did not amount to persecution) (internal quotation marks omitted). Ms.
Lopez was not physically harmed during this incident, and the police officer's ridicule
does not constitute the extreme concept of persecution required for asylum.
Accordingly, Ms. Lopez has failed to show that she suffered past persecution.
Regarding future persecution, the BIA found that Ms. Lopez did not meet her
burden of proving a reasonable fear of persecution. She argues that if she is returned
to Venezuela: (1) she will likely face economic persecution and denial of government
services; and (2) she will be singled out for persecution as an opponent of Chavez.
First, we agree with the BIA that the economic and service disadvantages Ms.
Lopez fears do not rise to the level of persecution. Ms. Lopez fears she will be forced
to sell one of her condominiums at an unfavorable rate, be unable to find as many
clients as in the past because of government regulations, and be denied government
jobs and services such as renewing her passport. However, Ms. Lopez was able to
continue in her position of employment for several months after the April 11 protest,
until she chose to leave the country. She was also able to renew her passport in
September 2001, while Chavez was in power. Moreover, even if she were to be
denied such opportunities and forced to sell her condominium in the future, these
problems do not establish statutory persecution. See Feleke v. INS, 118 F.3d 594, 598
(8th Cir. 1997) ("Fears of economic hardship or lack of opportunity do not establish
a well-founded fear of persecution.").
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Second, the record supports the BIA's finding that Ms. Lopez will likely not
be singled out for persecution as a member of the opposition. Ms. Lopez's mother and
siblings allegedly support the opposition party, and her mother even held a position
with the previous government. However, Ms. Lopez acknowledged that no one else
in her family has been targeted by the Chavez regime. Moreover, although there is
evidence of Chavez targeting opposition leaders and perhaps collecting a list of those
leaders, there is no specific evidence that Ms. Lopez's name would appear on such a
list. As mentioned previously, Ms. Lopez does not claim to have been in a position
of leadership with the opposition.3
B. Relief Under the CAT
If an applicant is eligible for neither asylum nor withholding of removal, she
may still request deferral of removal under the CAT. Deferral of removal is required
if Ms. Lopez shows that "it is more likely than not" she would be tortured if returned
to Venezuela. Cherichel v. Holder, 591 F.3d 1002, 1007 (8th Cir. 2010).
Here, Ms. Lopez consistently indicated in her applications that she did not fear
being tortured in Venezuela. Furthermore, for the same reasons that Ms. Lopez failed
to prove the likelihood of persecution for purposes of asylum, her petition for relief
under the CAT, which is based on the same arguments, also fails.
3
Additionally, the record shows the BIA had reason even to question the extent
of Ms. Lopez's involvement with the Democratic Action Party. Ms. Lopez stated in
her 2007 application that she supported the party, yet she originally answered in her
2003 application that neither she nor her family members were part of any Venezuelan
groups or organizations. Furthermore, she was able to produce neither her party card
nor any evidence of her party involvement other than her testimony.
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C. Motion to Reopen and New Evidence
Federal law generally gives each asylum applicant "the right to file 'one motion
to reopen proceeding.'" Dada v. Mukasey, 554 U.S. 1, 15 (2008) (quoting 8 U.S.C.
§ 1229a(c)(7)(A)). To reopen a claim based on changed circumstances, the petitioner
must "state . . . new facts . . . supported by affidavits or other evidentiary material,"
and the facts must be material to the claim for relief and unavailable and
undiscoverable at the time of the former hearing. 8 C.F.R. § 1003.2(c)(1). The BIA
will remand only if the new evidence is likely to change the outcome of the case. See
Vargas v. Holder, 567 F.3d 387, 391 (8th Cir. 2009). This court reviews the BIA's
decision for abuse of discretion. Shaghil v. Holder, 638 F.3d 828, 833 (8th Cir. 2011).
The BIA abuses its discretion if its decision is without a rational basis, fails to
consider all factors presented, or distorts important aspects of the claim. Vargas, 567
F.3d at 391 (listing these and other grounds for finding an abuse of discretion).
Here, there is no proof that the BIA abused its discretion. Ms. Lopez submitted
to the BIA new evidence of worsening conditions in Venezuela since her hearing,
alleging: (1) persecution based on sexual orientation has increased; and (2) the
government's access to a list of asylum seekers puts her at greater risk.
Ms. Lopez's central claim is now that treatment of homosexuals in Venezuela
has worsened. Although her central evidence of this change is the 2009 Human
Rights Report stating that thirteen transgender individuals were killed in Venezuela,
Ms. Lopez does not claim to be a transgender individual. The BIA was left with a
general report of alleged violence based on sexual orientation. While troubling, this
information does not demonstrate that Ms. Lopez will be singled out and persecuted.4
4
Ms. Lopez also alleges the BIA erred by refusing to consider evidence
submitted, as revealed in its statement that country reports from "China" were
provided. Yet this seems to be simply a typographical error. The BIA referenced the
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Ms. Lopez also argues that the Chavez government has access to a list of
asylum seekers and is using that list to deny passports, as asserted by both the
president of ORVEX and the El Nuevo Herald article. Although we do not require
Ms. Lopez to produce direct evidence of such a list possessed by Chavez, she did not
present sufficient evidence for the BIA to find that the Chavez government has
persecuted anyone similarly situated as a result of this list. See Litvinov, 605 F.3d at
555 (finding that asylum applicants' general reference to a new law criminalizing
opposition to the government in their country of origin did not meet the required
objective fear of persecution when applicants could not provide evidence of the
referenced law's existence or identify anyone who had been punished under it).
Consequently, the BIA was within its discretion in determining that the new evidence
of changed circumstances did not warrant reopening Ms. Lopez's case.
III. Conclusion
Accordingly, we affirm the BIA's denial of Ms. Lopez's applications for asylum,
withholding of removal, and deferral of removal, as well as the denial of Ms. Lopez's
motion to reopen removal proceedings based on new evidence.
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correct report years, and Venezuela is identified accurately in all other instances.
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