Leyla Hernandez-Diaz v. William Barr

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 3, 2020
Decided March 24, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-1996
LEYLA E. HERNANDEZ-DIAZ and Petition for Review of an Order of the
ALISSON M. MORAN-HERNANDEZ, Board of Immigration Appeals.
Petitioners,
v. Nos. A208-989-725 and A208-989-726
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
ORDER
Leyla Hernandez-Diaz, a citizen of El Salvador, petitions, along with her minor
daughter, for review of the denial of her applications for asylum and withholding of
removal under the Immigration and Nationality Act. She sought relief based on threats
she received from gang members because she was a police officer. Because substantial
evidence supports the immigration judge’s decision that the threats were too vague and
speculative to establish persecution and were insufficiently connected to her
occupation, we deny the petition for review.
No. 19-1996 Page 2
Background
Hernandez-Diaz entered the United States without proper documentation in
May 2016 with her minor daughter, Alisson Moran-Hernandez, who is also a petitioner
in this case. (The daughter’s applications are derivative of her mother’s.) The
Department of Homeland Security initiated removal proceedings, and Hernandez-Diaz
conceded that she was removable under 8 U.S.C. § 1182(a)(7)(A). She applied for
asylum and withholding of removal based on the hazard that MS-13 gang members
posed to her life because she was a police officer. She also sought protection under the
Convention Against Torture, but she does not challenge the denial of that relief.
At a hearing before an immigration judge (“IJ”), Hernandez-Diaz and her
husband (who had left El Salvador separately) testified that, for years, they had been
national police officers in El Salvador without incident. That changed in August 2015,
when Hernandez-Diaz was in her home and unknown people began banging on the
exterior wall of the house. She turned off the lights and hid with her daughter. She
called her co-workers on the police force, but by the time they arrived, the perpetrators
had fled. Hernandez-Diaz never saw them, but she believed that they were members of
the MS-13 gang because it is the dominant gang in the area. She testified that gang
members targeted her for “the simple fact that [she and her husband] are police
officers.” The gangs knew that they were police officers, Hernandez-Diaz and her
husband thought, because they wore uniforms while on duty, were photographed
while working, and they hung their washed uniforms on a clothesline outside to dry.
The next month, MS-13 gang members shot guns into the air in Hernandez-
Diaz’s neighborhood. Police officers responded to the scene and arrested three gang
members. The gang members had fired the guns, Hernandez-Diaz believed, to threaten
her. A neighbor later warned Hernandez-Diaz and her husband to be careful because
someone had threated to kill them and their daughter. Hernandez-Diaz and her
husband believed that gang members made this threat because they mistakenly thought
that Hernandez-Diaz had called the police during the shooting incident.
Three months later (after changes in work schedules required Hernandez-Diaz to
be at home without her husband at night), she and her daughter began spending nights
with her in-laws because she no longer felt safe in her home. She also requested time off
work because she was afraid for her safety.
No. 19-1996 Page 3
Then, in March 2016, Hernandez-Diaz and her husband were returning to their
home when they saw people hiding in the bushes outside. As they rushed inside, they
heard the hammer of a gun cock. Although she did not see the faces of the figures,
Hernandez-Diaz believed they were MS-13 gang members because no one else would
be targeting her.
Hernandez-Diaz and her husband also testified about four police officers they
knew personally who were murdered by gangs between 2015 and 2017. The first was
killed when she intervened to stop a robbery on a bus. Two others were ambushed and
murdered by gang members when they responded to an emergency. The fourth was
ambushed, tied up by his hands and feet, and killed.
In April 2016, Hernandez-Diaz left the police force, and she and her daughter
fled El Salvador. Hernandez-Diaz testified that she is afraid to return there because she
believes that the MS-13 gang would recognize her as a former police officer (based on
photographs and her mannerisms) and kill her. Gangs in El Salvador kill police officers,
Hernandez-Diaz testified, for the “simple fact that we are police officers” and because
gangs derive power from those slayings.
After the hearing, the IJ denied her applications. She found Hernandez-Diaz
credible but concluded that the past harm did not rise to the level of persecution. The IJ
also found that Hernandez-Diaz had not shown a well-founded fear of future
persecution because there was no reason to believe that gang members would single her
out if she returned to El Salvador, and she did not show a pattern or practice of
persecution of similarly situated individuals. And, although the IJ did not discuss the
proposed social groups (“police officers in El Salvador,” “honest police officers in El
Salvador,” or “former police officers in El Salvador”), she determined that even if
Hernandez-Diaz had demonstrated persecution, she failed to show that the harm she
suffered, or might suffer if she returned, was based on her employment as a police
officer. Because Hernandez-Diaz could not establish asylum eligibility, she could not
meet the higher standard for withholding of removal. Hernandez-Diaz appealed to the
Board of Immigration Appeals, which affirmed. She now petitions this court for review.
Analysis
Because the Board affirmed without opinion, this court directly reviews the IJ’s
decision, examining legal conclusions de novo and factual conclusions to determine
No. 19-1996 Page 4
whether they are supported by substantial evidence. Dominguez-Pulido v. Lynch,
821 F.3d 837, 841 (7th Cir. 2016).
Hernandez-Diaz first challenges the IJ’s conclusion that she did not demonstrate
past persecution to support her claim of asylum under 8 C.F.R. § 1208.13(b)(1).
Persecution must rise above mere harassment—it involves “the use of significant
physical force against a person’s body . . . or nonphysical harm of equal gravity.”
Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011) (emphasis in original). Hernandez-
Diaz contends that the purported gang members banging on the walls of her home,
firing shots into the air in her neighborhood, hiding in her bushes and cocking a gun,
and threatening her family with death, considered together, rise to the level of
persecution. She urges that these incidents constitute “credible threat[s] to inflict grave
physical harm.” Stanojkova, 645 F.3d at 948.
But the IJ permissibly concluded that Hernandez-Diaz had not suffered past
persecution. Threats will amount to persecution only in the most extreme
circumstances: they must be “credible, imminent and severe.” N.L.A. v. Holder, 744 F.3d
425, 431 (7th Cir. 2014). Although the incidents described by Hernandez-Diaz are
frightening, the IJ reasonably concluded that those threats were too “vague,
unsubstantiated, and unfulfilled” to rise to the level of persecution. Compare Orellana-
Arias v. Sessions, 865 F.3d 476, 487 (7th Cir. 2017) (finding of past persecution not
compelled where gang members physically attacked petitioner but inflicted only minor
injuries and made unfulfilled death threats), with N.L.A., 744 F.3d at 432–34 (threats
directed at petitioner by guerillas who murdered her uncle and kidnapped her father
compelled a finding of past persecution). And although the death threat relayed to
Hernandez-Diaz by her neighbor is troubling, it was a vague rumor, and there is no
evidence that any gang member attempted to follow through. See Hernandez-Baena v.
Gonzales, 417 F.3d 720, 723 (7th Cir. 2005).
The IJ also did not err in concluding that Hernandez-Diaz fell short of
establishing a well-founded fear of future persecution under 8 C.F.R. § 1208.13(b)(2). A
well-founded fear of future persecution is one that is “subjectively genuine and
objectively reasonable in light of credible evidence.” Hernandez-Garcia v. Barr, 930 F.3d
915, 920 (7th Cir. 2019) (quoting Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir. 2008)).
The IJ concluded that Hernandez-Diaz met the subjective prong. And Hernandez-Diaz
contends that she also satisfied the objective component by showing both a reasonable
probability that she will be singled out for persecution in El Salvador and a pattern or
practice of persecution of an identifiable group to which she belongs. See Hernandez-
No. 19-1996 Page 5
Garcia, 930 F.3d at 920 (one or the other would suffice). Hernandez-Diaz has not shown
that her fear of future prosecution is objectively reasonable.
First, Hernandez-Diaz failed to offer “specific, detailed evidence indicating that it
would be more likely than not that [she] would be individually targeted for harm” if
she returns to El Salvador. Orellana-Arias, 865 F.3d at 488. The record supports the IJ’s
conclusion that Hernandez-Diaz lacked evidence that gang members would even know
if she returns, or, if they did, that they would target her for harm. Gang members never
went beyond threats or menacing conduct toward Hernandez-Diaz when she lived in El
Salvador, and there is no evidence that the MS-13 gang looked for her after she fled or
warned her against returning. Only her own speculation supports her argument that
gang members will target her for violence if she returns.
Second, substantial evidence supported the IJ’s conclusion that Hernandez-Diaz
failed to show a pattern or practice of persecution of current or former police officers.
This would require evidence of “a systematic, pervasive, or organized effort to kill,
imprison, or severely injure members of the protected group.” Georgieva v. Holder,
751 F.3d 514, 523 (7th Cir. 2014) (quoting Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir.
2005)). The IJ reasonably found that the news articles and country reports in the record
evince a country-wide violent gang problem affecting the entire population of
El Salvador. And she correctly concluded that such generalized conditions are
insufficient to show a pattern or practice of persecution of police officers. See Hernandez-
Garcia, 930 F.3d at 920–21. That same evidence makes clear that gang violence has
caused substantial hardships for police officers in particular; however, the evidence
does not reflect the extreme extent of police-specific mistreatment necessary to overturn
the IJ on this point. See, e.g., id. (“shocking level of violence against women” insufficient
to show systemic persecution of women by gangs); Krishnapillai v. Holder, 563 F.3d 606,
620–21 (7th Cir. 2009) (reports of extreme human rights deprivations suffered by ethnic
minority insufficient to compel finding of pattern or practice of persecution).
Moreover, to reverse the IJ’s finding with respect to either past or future
persecution, this court would have to conclude that the El Salvadoran government is
complicit in MS-13 gang violence or is “unable or unwilling to take steps to prevent” it.
N.L.A., 744 F.3d at 440. But the record here suggests that, although the gang violence
has not been controlled, there is aggressive policing and state action to suppress gang
violence. Hernandez-Diaz did not put forth evidence that the government ignores or is
complicit in the gang problem; indeed, she testified that police responded when the
No. 19-1996 Page 6
purported gang members individuals banged on the walls of her home and fired
weapons into the air in her neighborhood.
Hernandez-Diaz also insists that she established the requisite connection
between the purported persecution and her status as a (now former) police officer. The
government argues that Hernandez-Diaz waived this argument, but she simply falls
short of supporting it. To show that persecution was based on membership in a social
group, a petitioner must identify a group that is cognizable under the Act and establish
a nexus between the persecution and the membership in the group. Orellana-Arias,
865 F.3d at 484. The IJ assumed that the proposed social groups were cognizable but
reasonably concluded that Hernandez-Diaz had no evidence to support her nexus
argument. See id. In two of the incidents Hernandez-Diaz described, it is unclear
whether gang members were involved at all. Even assuming they were, she cites
nothing but her and her husband’s conclusory testimony that the threatening incidents
she experienced “occurred because [Hernandez-Diaz] is a police officer” and “just for
being a police officer.” That is one permissible inference based on circumstantial
evidence. See Bueso-Avila v. Holder, 663 F.3d 934, 938 (7th Cir. 2011). But only
Hernandez-Diaz’s and her husband’s subjective beliefs support their suspected motive
as compared to any other possible one; without more, their inference is not “so
compelling that no reasonable fact-finder could fail to find” that gang members targeted
Hernandez-Diaz based on her occupation. Id. (quoting Jamal-Daoud v. Gonzales, 403 F.3d
918, 922 (7th Cir. 2005)).
We affirm the IJ’s decision denying Hernandez-Diaz’s application for asylum
because she did not establish past persecution or a well-founded fear of future
persecution as a result of being a police officer. She also challenges the denial of
withholding of removal, but the standard for that relief is more stringent. See
Dominguez-Pulido, 821 F.3d at 845. To qualify, a claimant must demonstrate a clear
probability that she will face persecution if removed. Id. Because Hernandez-Diaz
cannot establish eligibility for asylum, she necessarily cannot satisfy the higher
standard for withholding of removal.
For these reasons, we DENY the petition for review.