Martinez-Perez v. Sessions ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1285
BLANCA LIDIA MARTÍNEZ-PÉREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Carlos E. Estrada, Ashley M. Edens and Estrada Law Office, on
brief for petitioner.
Michael C. Heyse, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and May Jane Candaux, Assistant Director, on brief for
respondent.
July 24, 2018
THOMPSON, Circuit Judge. Petitioner Blanca Lidia
Martínez-Pérez (Martínez-Pérez) seeks judicial review of a
decision of the Board of Immigration Appeals (BIA) affirming the
denial of her applications for asylum, withholding of removal, and
withholding of removal under the Convention Against Torture (CAT).
Martínez-Pérez argues that the BIA erred by affirming the
Immigration Judge's (IJ) conclusion that she did not qualify for
asylum, withholding of removal, or any other basis for relief based
on her mistreatment in Honduras because of her Afro-Honduran race
and physical disability caused by polio, and furthermore that the
IJ violated her due process rights. Before looking at the
challenges Martínez-Pérez has raised here, we will run through the
circumstances of Martínez-Pérez's journey to the United States,
her life in Honduras and the circumstances that led her to come to
the United States, and the prior proceedings that brought her
before this court.1
A. BACKGROUND
1. Facts and Circumstances
Martínez-Pérez was born in 1976 in Honduras. By the age
of one she was diagnosed with polio, after which her mother gave
Martínez-Pérez to her uncle, who in turn left her at an orphanage
1These facts are drawn from the administrative record,
including Martínez-Pérez's hearing testimony, which the IJ found
credible.
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in Tegucigalpa, the capital of Honduras. Because of her childhood
polio, Martínez-Pérez walks with a limp. She was harassed by staff
and other children in the orphanage throughout her entire
childhood, and was sometimes called names relating to her
disability. She dropped out of school after the sixth grade.
Martínez-Pérez ultimately left the orphanage at age
eighteen and moved to a town called Sambo Creek, about six hours
north of Tegucigalpa. Tegucigalpa and Sambo Creek are the only
two places Martínez-Pérez lived in Honduras. As an adult,
Martínez-Pérez continued to experience general mistreatment based
on her disability and race. She recalled being verbally harassed
by strangers on the street. She also had difficulty finding a
job, and supported herself by working as a babysitter for a friend.
After three incidents in 2014 in which she heard someone threaten
her life, had a bottle thrown at her, and survived a home invasion,
all of which we'll get to later, Martínez-Pérez decided to leave
Honduras and travel to the United States.
Martínez-Pérez entered the United States on foot, having
broken her foot in transit, near Brownsville, Texas, on or about
June 7, 2014. While in custody, she received medical attention
for her foot and an asylum officer conducted a credible fear
interview with her for her asylum claim, finding that there was a
significant possibility that she could prevail on an asylum claim
at a full hearing. She remained in custody and was transferred to
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Louisiana, where she was served with a notice to appear on July
23, 2014, which began the removal proceedings against her. She
was then released on bond in August 2014. Between 2014 and 2016,
when Martínez-Pérez ultimately was able to secure counsel and have
a hearing on her application for asylum, the case was continued
multiple times and ultimately venue was transferred from Louisiana
to Boston.2
2. The IJ Hearing
At her asylum hearing before the IJ, Martínez-Pérez's
claims for (i) asylum, (ii) withholding of removal, and (iii)
withholding of removal under the CAT were principally supported by
her testimony about three experiences of harassment or threat of
assault that she argued were past persecution, and thus also
supported her well-founded fear of future persecution if she
returned to Honduras.3 First, Martínez-Pérez described an incident
in February 2014 when a stranger broke into her room at night.
The intruder tried to attack her but ran away when she screamed.
2 Not at issue in this appeal, counsel for Martínez-Pérez
before the BIA represented that there were several continuances
"due to the Immigration Judge's scheduling issues," before
ultimately venue was transferred from New Orleans to Boston on
April 22, 2015.
3 Martínez-Pérez also submitted several "country condition"
documents as exhibits at her asylum hearing that described disabled
people and people of Afro-Honduran descent as subject to
discrimination, especially in employment, housing, and public
services access, as well as the overall poor state of healthcare
access and quality in Honduras.
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She believes the intruder targeted her and wanted to sexually
assault her because of her disability. The intruder never spoke
to her. Because she was afraid that the intruder would come back,
or hurt her when released from custody, she did not file a
complaint with the police.
The last two incidents relate to a single person, a man
named Charlie who harassed her on multiple occasions in Sambo
Creek. She encountered Charlie once a month over the course of a
year. For the most part, Charlie made offensive comments about
Martínez-Pérez's limp. But one time, Charlie escalated by
threatening to throw her off a bridge, but said he wouldn't because
she was carrying her friend's baby. Another time in April 2014,
he physically threatened her, throwing a bottle at her that hit
her feet and calling her "renca," which means "gimp." Martínez-
Pérez described this as the reason she left Honduras, leaving for
the United States a few weeks later.
At the end of the hearing, the IJ issued an oral decision
denying Martínez-Pérez's asylum claim. Despite finding her
testimony "credible" and "truthful," and her case "extremely
sympathetic," the IJ found that Martínez-Pérez had failed to carry
her burden in proving either past persecution or a well-founded
fear of future persecution. In particular, the IJ found that the
three more serious instances of threats and physical danger
Martínez-Pérez testified about did not rise to the level of past
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persecution. As for well-founded fear of future persecution,
though the IJ found her credible, and thus credited her subjective
fear in returning to Honduras, the IJ found that the threats she
faced were from a single person, and therefore did not "present a
likelihood of persecution if she returned." Under the same
reasoning, the IJ rejected her claims for withholding of removal
and protection under the CAT.
3. Appeal to BIA
Martínez-Pérez then appealed to the BIA, which affirmed
the IJ's decision to deny her claims for asylum and withholding of
removal. The BIA agreed with the IJ that the evidence Martínez-
Pérez presented was not serious enough to "rise[] to the level of
past persecution." For the same reason, the BIA also agreed with
the IJ's conclusion that the mistreatment and harassment she faced
did not rise to the level of a well-founded fear of future
persecution.4 Because she could not satisfy this lesser asylum
burden, the BIA agreed that it necessarily followed that she had
not satisfied the higher burden for withholding of removal.
This petition for judicial review ensued. Jurisdiction
of this court is pursuant to 8 U.S.C. § 1252.
4 Neither the IJ nor the BIA reached other elements of past
or future persecution in denying her claims.
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B. DISCUSSION
On appeal, Martínez-Pérez makes three arguments. First,
she contends that the IJ and BIA erred by failing to find that she
had suffered past persecution, thus entitling her to a rebuttable
presumption of a well-founded fear of future persecution. See 8
C.F.R. § 1208.13(b)(1). Second, Martínez-Pérez argues that the IJ
and BIA erred in denying her claim for humanitarian asylum based
on the same body of evidence she says should have sustained her
past persecution claim. Third, she argues that the IJ failed to
consider all the evidence at her hearing and applied inapposite
case law in her decision, thus violating Martínez-Pérez's due
process rights. We discuss each one in turn.
1. Standard of Review
When the BIA "adopts portions of the IJ's findings while
adding its own gloss," as it did here, "we review both the IJ's
and the BIA's decisions as a unit." Paiz-Morales v. Lynch, 795
F.3d 238, 242 (1st Cir. 2015) (internal quotation marks omitted)
(quoting Renaut v. Lynch, 791 F.3d 163, 166 (1st Cir. 2015)). We
review the findings of fact supporting the BIA's denial of an
asylum application for substantial evidence, meaning we accept the
findings "as long as they are supported by reasonable, substantial
and probative evidence on the record considered as a whole." Singh
v. Holder, 750 F.3d 84, 86 (1st Cir. 2014) (internal quotation
marks and citation omitted). We will reject the BIA's findings
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only when the record compels a contrary outcome. Carvalho-Frois
v. Holder, 667 F.3d 69, 72 (1st Cir. 2012); Lopez Perez v. Holder,
587 F.3d 456, 460 (1st Cir. 2009).
2. Asylum
To qualify for asylum, an applicant must "'demonstrate
a well-founded fear of persecution on one of five protected
grounds' -- race, religion, nationality, political opinion or
membership in a particular social group." Paiz-Morales, 795 F.3d
at 243 (quoting Singh, 750 F.3d at 86). To show that the
circumstances the applicant endured constitute persecution for
purposes of asylum relief, she must show "a certain level of
serious harm (whether past or anticipated), a sufficient nexus
between that harm and government action or inaction, and a causal
connection to one of the statutorily protected grounds." Carvalho-
Frois, 667 F.3d at 72 (citation omitted).
If the applicant establishes past persecution, there is
"a rebuttable presumption of a well-founded fear of future
persecution." Id. (citation omitted). Without past persecution,
the applicant can still show a well-founded fear of future
persecution by showing that "she genuinely fears future
persecution and that her fears are objectively reasonable." Id.
(citation omitted). But in either case, "[a]n inability to
establish any one of the three elements of persecution will result
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in a denial of [the] asylum application." Id. at 73 (citation
omitted).
In this case, Martínez-Pérez argues that the BIA erred
in affirming the IJ's conclusion that she had not demonstrated
either past persecution or a well-founded fear of persecution.
The BIA and IJ rejected Martínez-Pérez's past and future
persecution arguments because the harassment she endured in
Honduras did not rise to the level of persecution. While we too
find petitioner's plight extremely sympathetic, we must
nevertheless agree with the BIA's and IJ's assessments.
a. Past Persecution
An applicant for asylum "'bears a heavy burden,' and
faces a 'daunting task' in establishing subjection to past
persecution." Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013)
(internal quotation marks omitted) (quoting Alibeaj v. Gonzales,
469 F.3d 188, 191 (1st Cir. 2006)). To show past persecution,
"the discriminatory experiences must have reached a fairly high
threshold of seriousness, as well as [occurred with] some
regularity and frequency." Alibeaj, 469 F.3d at 191. Thus, the
severity and frequency of the harassment identified by the
applicant are intertwined factors that bear on "the nature and
extent of an applicant's injuries . . . ." Vasili, 732 F.3d at
89. In other words, "persecution requires 'more than mere
discomfiture, unpleasantness, harassment, or unfair treatment' and
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'implies some connection to government action or inaction.'" Id.
at 90 (quoting López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir.
2009)). We see more than substantial evidence for the BIA and
IJ's conclusions that the incidents Martínez-Pérez identified were
not serious harm rising to the level of past persecution.
The three incidents Martínez-Pérez pointed to as
evidence of past persecution--the single death threat and bottle-
throw from Charlie, and the home invasion by an unknown
assailant--while undoubtedly scary, do not compel us to find they
were serious enough to constitute persecution.5 We have upheld
BIA decisions concluding that even more frequent and more serious
experiences than the ones endured here were insufficient to show
5 While Martínez-Pérez also argues that the BIA and IJ erred
by failing to explicitly consider the country-conditions evidence
she submitted, we need not consider that evidence in the mix of
Martínez-Pérez's persecution argument for three reasons. First,
Martínez-Pérez develops no specific arguments about what alleged
persecution these country conditions would support, or why, and
instead cites generally to the entire seventy-four pages of
country-condition evidence. Without more, such an argument is
insufficiently developed, and thus waived. See United States v.
Sevilla-Oyola, 770 F.3d 1, 19-20 (1st Cir. 2014). Second, even if
it were not waived, "each piece of evidence need not be discussed
in a decision" in order to satisfy our review. Morales v. INS,
208 F.3d 323, 328 (1st Cir. 2000). And third, even if we were to
peer into the country conditions, they do not relate in any way to
the specific instances of harassment or assault Martínez-Pérez
identified. Instead, they discuss shortcomings in the provision
of healthcare or other services and enforcement of anti-
discrimination laws in Honduras, which on their own indicate no
more than a "general climate of discrimination" and without more
do not suffice to show persecution. Attia v. Gonzales, 477 F.3d
21, 24 (1st Cir. 2007).
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past persecution.6 See Attia, 477 F.3d at 23–24 (finding no
persecution where the applicant was beaten twice over a nine year
period and experienced a “general climate of discrimination”);
Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (finding no
persecution based on seven arrests accompanied by short periods of
detention and physical beatings over the span of two years); Bocova
v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (finding no
persecution based on two death threats and a beating resulting in
loss of consciousness and hospitalization). And while more
physical incidents such as arrest or assault are not necessary to
6
Martínez-Pérez alternatively argues, by comparison, that
domestic violence victims have shown persecution in support of an
asylum claim based on the violence or threats of a single
tormentor, e.g., a spouse. This argument does not factor into our
review of the BIA's decision for two reasons. First, this theory
was not raised before the IJ or BIA, and is therefore waived due
to lack of administrative exhaustion. See Sunoto v. Gonzales, 504
F.3d 56, 59 (1st Cir. 2007). Second, Martínez-Pérez's argument
relies on misconstruing Matter of A–R–C–G–, 26 I. & N. Dec. 388(BIA 2014), overruled by Matter of A-B-, 27 I. & N. Dec. 316, 337
(2018), arguing that this case eliminates the frequency issues
with her persecution evidence, because in the domestic violence
context a single attacker is sufficient. Instead, that case
reversed an IJ decision denying that domestic violence victims
were a sufficiently particular and visible social group to be
eligible for asylum, rather than analyzing the frequency component
of the persecution analysis. A-R-C-G-, 26 I. & N. Dec. at 388-
89. In other words, A-R-C-G- is readily distinguishable from
Martínez-Pérez's case. But even if domestic violence cases were
applicable here, she would fare no better. After the Attorney
General's decision in A-B- overruled A-R-C-G-, interpreting the
"causal connection" and "government nexus" prongs of persecution
analysis to exclude most domestic violence harms from satisfying
that definition, the comparison Martínez-Pérez tries to make does
her no favors. See Matter of A-B-, 27 I. & N. Dec. at 337-38.
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show past persecution, "the presence or absence of physical harm
(and, indeed, the degree of harm inflicted) remains a relevant
factor in determining whether mistreatment rises to the level of
persecution." Lobo v. Holder, 684 F.3d 11, 17 (1st Cir. 2012)
(quoting Gilca v. Holder, 680 F.3d 109, 115 (1st Cir. 2012))
(rejecting past persecution argument supported by "five (or six)
incidents of threats or extortion"). Here, there is no evidence
in the record that Martínez-Pérez was even slightly injured in any
of these three incidents, at least not physically so, and none of
the incidents compelled her to seek medical attention or help from
the police. See Vasili, 732 F.3d at 90 (finding no past
persecution in "traffic stop incident" where applicant was
assaulted by socialist party members because "the record [was]
wholly devoid of evidence as to the nature and extent of [his]
injuries, if any" as well as "whether he sought medical
attention"). Accordingly, there was substantial evidence to find,
as the BIA and IJ did, that Martínez-Pérez did not carry her burden
in showing harm serious enough to constitute past persecution.7
7Even if we were to peek into the other elements of past
persecution, Martínez-Pérez fares no better. First, Martínez-
Pérez has drawn no connection between any of the incidents and
government action or inaction. At most, she assumes that even if
she had complained to authorities, they would not have done
anything due to the general discrimination towards disabled and
Afro-Honduran people in Honduras. We have held that the nexus
cannot be shown by "no more than a guess." López-Castro, 577 F.3d
at 53. Second, as Martínez-Pérez conceded at the hearing, she did
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b. Future Persecution
As we explained before, even though there was
substantial evidence supporting the BIA's and IJ's conclusions
that Martínez-Pérez had not shown past persecution, she can still
make out an asylum claim based on a well-founded fear of future
persecution if she can satisfy a two-part inquiry that "she
genuinely fears future persecution and that her fears are
objectively reasonable." Carvalho-Frois, 667 F.3d at 72. The IJ,
finding her testimony credible, assumed that the subjective
"genuine fear" prong was satisfied. However, the IJ concluded,
and the BIA agreed, that her fear was not objectively reasonable
because it was based on the same three incidents that had been
found to be insufficiently serious to show past persecution. We
agree that substantial evidence supports this conclusion, and need
not tread back through the same analysis. See López-Castro, 577
F.3d at 54 (finding no future persecution where evidence asserted
in support of past persecution did "not equate with persecution").
not know who the intruder was in the home-invasion incident, and
he did not say anything. Accordingly, as to that incident, she
has additionally not carried her burden in showing that it was
related to either of her statutorily protected categories: race
and membership in a particular social group, i.e., people with
disabilities. Her assumption that she would be targeted for home
invasion because of her disability "left too much to speculation
and surmise." Id.- 13 -
3. Humanitarian Asylum
Martínez-Pérez alternatively argues that the BIA erred
by failing to consider her claim for humanitarian asylum.8 The
government contends that this argument was waived because
Martínez-Pérez did not argue it specifically before the IJ. But
even if it is not waived, the government argues that for the same
reasons Martínez-Pérez's evidence was insufficient in the asylum
context, so shall it be in the humanitarian asylum context. On
this second point, we agree with the government.
First, we do not find that, because it wasn't
specifically raised before the IJ, this argument was waived. As
we have previously held, where the applicant "has consistently
asserted eligibility for asylum based on [] past harm" based on
the same protected grounds she now claims for humanitarian asylum,
the applicant need not "explicitly request[] [humanitarian asylum]
from the IJ apart from [her] overall past-persecution-based asylum
claim." Ordonez-Quino v. Holder, 760 F.3d 80, 95 (1st Cir. 2014).
Accordingly, this argument is properly before us and may be
considered on the merits.
But this is the end of the good news for Martínez-Pérez.
So-called "humanitarian asylum" provides that an applicant who has
8 Having failed to argue in her opening brief any error in
either the BIA's denial of her claim for withholding of removal,
or its silence on the IJ's denial of her claim for withholding of
removal under the CAT, we deem these arguments waived.
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shown past persecution but failed to show a well-founded fear of
future persecution can still be granted asylum if "(A) [t]he
applicant has demonstrated compelling reasons for being unwilling
or unable to return to the country arising out of the severity of
the past persecution; or (B) [t]he applicant has established that
there is a reasonable possibility that he or she may suffer other
serious harm upon removal. . . ." 8 C.F.R. § 1208.13(b)(1)(iii).
Having failed to show past (or any) persecution, subsection
(b)(1)(iii) does not apply to Martínez-Pérez, and thus this
argument fails. See Ayala v. Holder, 683 F.3d 15, 18 (1st Cir.
2012).
4. Due Process
Finally, Martínez-Pérez argues that the IJ's failure to
consider all of her supporting evidence, namely, the
aforementioned country-condition evidence, and its use of
inapplicable case law violated her due process rights. Martínez-
Pérez did not raise this argument before the BIA and thus has
"failed to exhaust [her] administrative remedies on that issue,
and we consequently lack jurisdiction to review the claim."
Sunoto, 504 F.3d at 59.
C. CONCLUSION
For the foregoing reasons, we deny the petition for
judicial review.
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