Mirna Vindel v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1140n.06
No. 11-3994
FILED
UNITED STATES COURT OF APPEALS Nov 05, 2012
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MIRNA MARIBEL VINDEL, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM A FINAL ORDER OF THE
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*
PER CURIAM. Mirna Maribel Vindel petitions for review of an order by the Board of
Immigration Appeals dismissing her appeal from the decision of an immigration judge (IJ) that
denied her applications for withholding of removal and protection under the Convention Against
Torture.
Vindel is a native and citizen of Honduras who entered the United States without
authorization. On April 21, 2008, the Department of Homeland Security commenced removal
proceedings against Vindel by issuing a Notice to Appear. Vindel indicated that she entered the
United States on January 1, 1998, admitted the allegations contained in the Notice to Appear, and
conceded removability. She applied for asylum, withholding of removal, and protection under the
Convention Against Torture.
*
The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.
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Following a hearing, an IJ denied relief from removal and ordered Vindel’s removal to
Honduras. The Board dismissed Vindel’s appeal.
Vindel filed a timely petition for review of the Board’s order. She challenges the denial of
withholding of removal, arguing that she established “a clear probability of future persecution, and
that the persecution she fears is on account of an enumerated ground under the [Immigration and
Nationality Act].”
Where, as here, “the [Board] did not summarily affirm or adopt the [immigration judge’s]
reasoning and provided an explanation for its decision, we review the [Board]’s decision as the final
agency determination.” Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007). “To the extent
the [Board] adopted the immigration judge’s reasoning, however, this Court also reviews the
immigration judge’s decision.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
To qualify for withholding of removal, an alien must establish that his “life or freedom would
be threatened in [the proposed] country [of removal] because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An
applicant for withholding of removal must establish a clear probability of persecution, Singh v.
Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005), by demonstrating “that it is more likely than not that
his life or freedom would be threatened by persecution if he returned to his home country.” Pablo-
Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010) (internal quotation marks and citation omitted).
Persecution is “the infliction of harm or suffering by the government, or persons the government is
unwilling or unable to control, to overcome a characteristic of the victim.” Khalili, 557 F.3d at 436.
Vindel sought withholding of removal based upon her membership in a particular social
group. In her application for relief, Vindel stated that she fears “future persecution because she has
been in the United States and gang members may assume that she has possession of or access to
large quantities of U.S. dollars.” Vindel further stated that “she is a single female who has lived in
the United States for more than 10 years,” and “fears she will become an easy target for gang
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members who assume that she has U.S. money.” Vindel stated that Honduran gang members are
aware of her situation and will harm or kill her and her children based upon her perceived wealth.
She also fears future persecution if removed to Honduras “due to the rampant criminal activity
perpetrated by gang members.”
The IJ found that Vindel’s testimony was not credible and that she did not qualify for relief
from removal. The Board disagreed with the IJ’s credibility finding, but agreed with the IJ’s
determination that Vindel did not qualify for withholding of removal. The Board agreed with the
IJ’s determination that Vindel “has not identified herself as belonging to a group having the requisite
social visibility to qualify as a particular social group” with respect to her fear of persecution based
upon her perceived wealth. In addition, the Board concluded that Vindel failed to establish a claim
even if her “family comprises a particular social group.” The Board rejected Vindel’s claim that she
would be targeted by gang members or, more specifically, the two particular gang members who
killed her brother, due to her relationship to her brother. The Board found that Vindel “provided no
evidence, direct or circumstantial, that the men she fears would be motivated by a desire to punish
or overcome that familial relationship.” The Board also noted that Vindel’s “parents, siblings, and
children remain in Honduras, and have not been physically harmed by anyone since [Vindel] left that
country in 1998.”
Substantial evidence supports the decision of the Board. See Zoarab v. Mukasey, 524 F.3d
777, 780 (6th Cir. 2008). Although Vindel may be perceived as wealthy as a result of her lengthy
residency in the United States, she failed to establish that she belongs to a particular social group for
purposes of withholding of removal. Nor does Vindel’s fear of gangs establish a basis for
membership in a particular social group. See Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir.
2006). Even if Vindel’s family constitutes a particular social group, her fear of gang violence based
upon the death of her brother does not support her claim for withholding of removal. See Akhtar v.
Gonzales, 406 F.3d 399, 405–06 (6th Cir. 2005).
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Vindel testified that one of the gang members responsible for her brother’s death was arrested
for the crime. This fact establishes that the Honduran government is not indifferent to gang violence
or unable to control it. See Stserba v. Holder, 646 F.3d 964, 979 (6th Cir. 2011). Although Vindel’s
appellate brief mentions the Convention Against Torture, the brief contains no reasoned arguments
challenging the Board’s determination that she is not entitled to relief from removal under the
statute. The argument is therefore deemed waived. Dillery v. City of Sandusky, 398 F.3d 562, 569
(6th Cir. 2005).
The petition for review is denied.