Francisca Hernandez-Hernandez v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0230p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
FRANCISCA HERNANDEZ-HERNANDEZ; A. L. H. H.,
│
Petitioners, │
> No. 21-3210
│
v. │
│
MERRICK B. GARLAND, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals.
Nos. A 209 290 827; A 209 290 828.
Decided and Filed: October 4, 2021
Before: SUTTON, Chief Judge; BATCHELDER and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kirby J. Fullerton, CARMANFULLERTON, PLLC, Lexington, Kentucky, for
Petitioners. Nancy E. Friedman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
LARSEN, Circuit Judge. The Department of Homeland Security (DHS) initiated
removal proceedings against Francisca Hernandez-Hernandez and her daughter. Hernandez
applied for asylum and withholding of removal.1 The immigration judge (IJ) and the Board of
1She filed an asylum claim on behalf of her daughter as well. That claim is derivative of Hernandez’s,
however, so we do not discuss the daughter’s claim separately. Hernandez originally sought protection under the
Convention Against Torture as well, but she has since abandoned the claim. We do not discuss that claim further.
No. 21-3210 Hernandez-Hernandez, et al. v. Garland Page 2
Immigration Appeals (BIA) denied relief and ordered Hernandez and her daughter removed to
Guatemala. We DENY the petition for review.
I.
Hernandez is a native and citizen of Guatemala. She has two minor children. Her
daughter, A. L. H. H., is also a native and citizen of Guatemala. Her son, born in 2018, is a U.S.
citizen. In mid-July 2016, Hernandez left Guatemala with her daughter and entered the United
States without authorization. DHS later initiated removal proceedings against them under
8 U.S.C. § 1182(a)(6)(A)(i).
Before the IJ, Hernandez conceded removability but sought asylum and withholding of
removal. Her application alleged that she was a member of the indigenous K’iche’, whom the
Guatemalan government does not help. She alleged that she and her family are “very poor,” that
“there are no police or hospital[s] in [their] town,” that she “received a very limited public
education,” and that she was “unable to leave [their] town or obtain good employment to support
[her] daughter.” She expressed fear that the Guatemalan government would persist in its failure
to aid the K’iche’ and that she would “not be able to better [her] situation so [she] can support
[her] daughter.” In sum, Hernandez claimed that she had suffered and feared future “persecution
in the form of severe economic disadvantage or the deprivation of liberty, food, housing,
employment and other essentials of life” on account of her status as an indigenous K’iche’
woman.
Hernandez testified before the IJ. She explained that she came to the United States for
economic reasons and to secure a better life for her daughter. In Guatemala, she attended school
only through the fourth or fifth grade. She grew up poor; her family farmed for a living. When
she turned twelve, she began farming with her dad. For a while, she worked as a housekeeper in
another city several hours away from her family. But she eventually left that job because the
wages were low, and she feared crime in the city. She claims that the only jobs in her hometown
are intermittent, agricultural, and pay little. If she goes back, she believes that she could only get
a job farming due to her lack of education.
No. 21-3210 Hernandez-Hernandez, et al. v. Garland Page 3
Although the IJ found Hernandez credible, he denied her claims for relief and ordered her
removed from the country. She appealed to the BIA, which affirmed the IJ’s decision.
Hernandez petitions for review of the BIA decision.
II.
“Where, as here, the BIA issued a separate opinion, rather than summarily affirming the
IJ’s decision, we review the BIA’s decision as the final agency determination.” Umaña-Ramos
v. Holder, 724 F.3d 667, 670 (6th Cir. 2013) (quotation marks omitted). But to the extent the
BIA adopted the IJ’s reasoning, we also review the IJ’s decision. Id. We review questions of
law de novo but give “substantial deference . . . to the BIA’s interpretation of the INA and
accompanying regulations.” Id. (quoting Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009)).
We review factual findings under the highly deferential substantial evidence standard. Id. The
BIA’s factual findings “are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). In view of the IJ’s
unchallenged credibility determination, we accept the substance of Hernandez’s testimony.
Asylum and withholding of removal claims face similar requirements. 2 For asylum, an
alien must show that she is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is someone “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)(A); Kante v. Holder, 634 F.3d 321, 325 (6th Cir.
2011). Similarly, for withholding of removal, an alien must show that her “life or freedom
would be threatened in that country because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
The immigration laws do not define “persecution.” Yet courts and the BIA agree that
persecution need not be physical. “Economic deprivation” can amount to persecution “when the
resulting conditions are sufficiently severe.” Daneshvar v. Ashcroft, 355 F.3d 615, 624 n.9 (6th
Cir. 2004). But any “economic disadvantage” or “deprivation” must be “deliberate[ly]
2On appeal, Hernandez does not treat her withholding of removal claim any differently than her asylum
claim. So for the purposes of this appeal, we consider them together.
No. 21-3210 Hernandez-Hernandez, et al. v. Garland Page 4
impose[d].” Stserba v. Holder, 646 F.3d 964, 972 (6th Cir. 2011) (quoting In re T-Z-, 24 I. &
N. Dec. 163, 171 (B.I.A. 2007)). And there’s “a state-action element: A country’s government
must either directly inflict harm on an immigrant or be unable or unwilling to control a private
party who inflicts the harm.” Ortiz v. Garland, 6 F.4th 685, 686–87 (6th Cir. 2021).
The BIA concluded that Hernandez had not shown “persecution” because any economic
deprivation she suffered or feared was not, and would not be, “deliberately imposed by the
Guatemalan government or non-government actors the government is unable or unwilling to
control.” Substantial evidence supports this conclusion.
Hernandez testified at length to her impoverished conditions. And she says that the
Guatemalan government has done little to help its indigenous population, highlighting, for
example, the Guatemalan Congress’s shelving of a development bill. The State Department
report agrees that indigenous Guatemalans are disproportionately poor, “remain largely outside
the political, economic, social, and cultural mainstream,” have “limited educational opportunities
(contrary to law), . . . and [experience] pervasive discrimination.” But we have already rejected
nearly identical claims, noting that “economic stratification and deficient government support,
regrettable though they are, do not establish a cognizable case of persecution.” Pascual v.
Mukasey, 514 F.3d 483, 488 (6th Cir. 2007). Hernandez, moreover, has provided no evidence
that the government (or any non-government actor) imposed any particular economic restrictions
on her. As the BIA found, while Hernandez provides evidence that indigenous Guatemalans,
including herself, suffer disproportionately from poor socio-economic conditions, that is
insufficient on its own to show persecution by the government. See, e.g., Lopez-Diego v.
Sessions, 704 F. App’x 576, 581 n.5 (6th Cir. 2017) (finding that the petitioners failed to
establish economic persecution, in part because they “did not produce any evidence that any
economic discrimination they faced was due to the government or to persons the government
was unwilling or unable to control, as opposed to discrimination by private parties”).
Hernandez attempts to find state action in election policies—“tedious voter registration
requirements” and the timing of elections—which have the effect of reducing indigenous
people’s participation in the political process. She posits that low voter participation, in turn,
No. 21-3210 Hernandez-Hernandez, et al. v. Garland Page 5
disincentivizes “the Guatemalan government to invest in education, healthcare, or infrastructure
in indigenous areas,” resulting in the disproportionate poverty of indigenous populations.
We may leave aside the question whether this causal chain has too many links to amount
to economic persecution within the meaning of the INA. Even if not, Hernandez has not shown
that the economic effects she felt were set in motion by the government’s deliberate acts.
Hernandez seems to resist the requirement of deliberate government action. She points to our
decision in Stserba, which recognized that “[g]enerally applicable laws can be the source of a
petitioner’s persecution.” Stserba, 646 F.3d at 977. Here, she argues, “the Guatemalan
government’s election policies apply to everyone, but disproportionately impact indigenous
Guatemalans.” That may be true. But Hernandez misses the point of Stserba. “Generally
applicable laws can be the source of a petitioner’s persecution,” id., but only when they are either
applied in a discriminatory fashion or purposefully enacted to produce a discriminatory effect,
see Romeike v. Holder, 718 F.3d 528, 531 (6th Cir. 2013). It was the latter finding that drove our
decision in Stserba. There, we concluded that Estonia’s policy of invalidating diplomas earned
at Russian schools not only affected ethnic Russians disproportionately, but also was
“motivated” by hostility to Russian ethnicity. Stserba, 646 F.3d at 978. This is a “hard way to
show persecution.” Romeike, 718 F.3d at 531. And Hernandez has not come close; she offers no
evidence that ethnic hostility played any part in the formation of Guatemala’s election laws.
Stserba does not help her.
In sum, substantial evidence supports the BIA’s conclusion that Hernandez neither
suffered, nor has a well-founded fear of, economic persecution by the government. The BIA did
not err by denying her claims for asylum and withholding of removal.
***
We DENY the petition for review.