Restrepo Monsalve v. Holder

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2009
No. 08-60220 Charles R. Fulbruge III
Clerk
KELLY ANDREA RESTREPO MONSALVE
Petitioner
v.
ERIC H HOLDER, JR, US ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
No. A98 863 222
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner, Kelly Andrea Restrepo Monsalve (“Monsalve”), petitions for
review from the Board of Immigration Appeals’ (“BIA”) denial of her asylum
application. For the reasons set forth below, we deny the petition.
FACTS AND PROCEEDINGS
Monsalve is a Colombian national who worked as a government employee
in Medellin, Colombia. In that capacity, she helped the city’s mayor implement
a vendor licensing program. This program was intended to decrease the number
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60220
of street vendors in the public square. While her position was not particularly
powerful, Monsalve was prominent in performing her duties, which included
managing the databases containing street vendor information and explaining to
displaced vendors why they had been denied a license. As a result of the city’s
program and the decrease in economic opportunities, some displaced vendors
joined guerilla groups and began targeting government employees. At least one
employee was killed, shots were fired into Monsalve’s home, a drive-by shooting
was attempted to assassinate her, and the office out of which the licensing
program operated was bombed.
During this period, Monsalve fled to the United States several times,
always returning to Colombia. Eventually, she applied for asylum. The
application was denied by an immigration officer and her case was referred to
an immigration judge. The judge found that she was persecuted by disgruntled
street vendors but that this persecution was due to revenge and not her political
opinion or membership in a social group. Monsalve appealed to the BIA, which
affirmed the immigration judge’s determination. Monsalve now seeks review of
the BIA’s decision, arguing that the BIA erred in finding that she was not
persecuted on account of her political opinion or her membership in a particular
social group.
STANDARD OF REVIEW
We review factual findings of the BIA for substantial error, and
conclusions of law de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
“In conducting our reviews we are constrained to give considerable deference to
the BIA’s interpretation of the legislative scheme it is entrusted to administer.”
Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir. 1992) (citing Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). When presented
with questions of fact, we review the BIA’s decision to determine whether “its
findings are supported by substantial evidence.” Silwany-Rodriguez v. I.N.S.,
2
No. 08-60220
975 F.2d 1157, 1160 (5th Cir. 1992). “The substantial evidence standard
requires only that the Board’s conclusion be based upon the evidence presented
and be substantially reasonable.” Rojas v. I.N.S., 937 F.2d 186, 189 (5th Cir.
1991). Under the substantial evidence standard, we will not reverse the BIA
unless the evidence is “‘so compelling that no reasonable fact finder could fail to
find’ the petitioner statutorily eligible for relief.” Roy v. Ashcroft, 389 F.3d 132,
138 (5th Cir. 2004) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484 (1992)).
DISCUSSION
Monsalve argues that the BIA erred in determining that her persecution
was not due to her political opinion or that imputed to her by the displaced
vendors. Further, Monsalve maintains that the BIA erred in finding that she
was not a member of a particular social group—former employees of Medellin’s
vendor licensing program.
The Attorney General or the Secretary of Homeland Security, under 8
U.S.C. § 1158, has the discretion to grant asylum to an alien who demonstrates
that she is a refugee. A refugee is defined as any person 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 burden
of proof is on the applicant to establish that she is a refugee. 8 U.S.C. § 1158(b)(1)(B). 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. (emphasis added).
Within the meaning of the statute, “central” has been defined to exclude grounds
that are merely “incidental or tangential to the persecutor’s motivation.” In re
J-B-N- & S-M-, 24 I.&N. Dec. 208, 214 (BIA June 25, 2007) (quoting 65 Fed. Reg.
76,588, 76,592 (Dec. 7, 2000)). Thus, if the protected ground “is only subordinate
3
No. 08-60220
to another (nonprotected) reason for the persecution, an applicant is ineligible
for asylum.” Id.Monsalve’s political opinion assertions of error fail. Though she tries to
shoehorn her arguments to fit within the “political opinion” category, she does
not actually claim that she was persecuted because of her political opinion or
that imputed to her by the displaced street vendors. Rather, Monsalve asserts
that the only reason she was targeted was because of her involvement in the
vendor licensing program. Monsalve herself argues that the vendors were
opposed to the program because it interfered with their right to work. She
further states that she was not previously targeted even though she had been
politically active long before her involvement in the licensing program. At most,
Monsalve has only shown that displaced street vendors reacted violently to the
licensing program, not that they sought to harm her because of her political
convictions. There is no indication that the disgruntled vendors took out their
frustrations on government employees for political reasons. If anything, the
evidence suggests that their motivation was purely economic.
Largely the same analysis undergirds the determination that Monsalve
has also failed to show that the BIA erred by finding that she was not persecuted
because of her membership in a particular social group. We need not determine
whether all former government employees who worked to implement the vendor
licensing program were a recognized social group because Monsalve presented
no evidence that a central reason for her persecution was the alleged
membership in such a group, even if it did exist. She has failed to argue or
provide any evidence that she would have been targeted if she had performed all
of her duties except those connected to displacing vendors. Again, the evidence
suggests that the motivating factor in the persecution was economic, or at least
there is insufficient evidence to suggest otherwise.
4
No. 08-60220
Thus, the BIA did not err in its determination that Monsalve was not
persecuted because of her political opinion—actual or imputed—or because of
her membership in a particular social group. Monsalve has failed to show that
she is a refugee for purposes of 8 U.S.C. § 1158.
CONCLUSION
The petition for review of the BIA’s determination is DENIED.
5