Maria Azucena Pomposo Lopez v. William P. Barr ( 2019 )

NONPRECEDENTIAL DISPOSITION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 August 7, 2019
Decided August 28, 2019
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-1026
MARIA A. POMPOSO LOPEZ, et al., Petition for Review of an Order of the
Petitioners, Board of Immigration Appeals.
v. Nos. A200-768-027, A208-296-669,
A208-296-670 & A208-296-671
WILIAM P. BARR,
Attorney General of the United States
Respondent.
ORDER
Maria Pomposo Lopez, a Mexican citizen, petitions, along with her three minor
children, for review of the Board of Immigration Appeal’s denial of her applications for
asylum and withholding of removal under the Immigration and Nationality Act (based
on her membership in a social group of people subjected to familial abuse) and for
withholding of removal under the Convention Against Torture. The Board concluded
that Pomposo Lopez did not establish harm that rose to the level of past persecution, a
well-founded fear of future persecution based on a protected ground, or a likelihood
that she would be tortured if removed to Mexico. We agree and deny the petition for
review.
No. 19-1026 Page 2
I.
Pomposo Lopez unlawfully entered the United States in 2010 with her three
minor children, Eyvi, Aryela, and Andrea, who are also petitioners in this case. They
settled in Columbus, Indiana with the children’s father.
Pomposo Lopez and her partner testified to the following. When Aryela was ten
years old, she confided in a school psychologist that she was being harassed and
touched inappropriately by her 24-year-old cousin who lived with the family. The
school contacted Aryela’s father, who took her to the police station to file a sexual
misconduct report in May 2014. When the police questioned Aryela alone, she said that
the sexual abuse did not occur, so they closed the case. Aryela’s father kicked out his
nephew, who later moved to Utah.
Months later, Pomposo Lopez began receiving threatening text messages
purportedly sent on behalf of the estranged nephew. The messager identified herself as
the nephew’s girlfriend and said that she knew where the family lived, that she was
going to send someone to beat them up, and that Pomposo Lopez should be careful
with her children. The girlfriend also taunted Pomposo Lopez, telling her that the
nephew would boast of his abuse of Aryela. Pomposo Lopez twice reported the
messages to the Columbus police, but they told her that she needed to receive more
messages before they opened an investigation.
In December 2014, Pomposo Lopez and her children returned to Mexico where
the harm grew more serious. In February 2015, Pomposo Lopez was held at gunpoint
by two unknown men with pistols, while a third man tried to abduct Aryela on the
street where they lived. Aryela escaped, but the men restrained Pomposo Lopez and
warned her that her partner should stop talking to the police. (In Pomposo Lopez’s
absence, her partner—then in the United States—had reported to Columbus police that
he had been receiving text messages, purportedly from the nephew and his girlfriend,
that insulted Pomposo Lopez and Aryela.) Pomposo Lopez reported the incident at
gunpoint to a nearby police patrol, who told her that incidents like this happen often
and that she “needed to give them a little bit of money in order for them to help [her]
find out what happened.” She did not pay and received no help.
The family also received phone threats in Mexico. Pomposo Lopez’s mother,
with whom the family was staying, received calls from unknown callers asking to speak
with Pomposo Lopez. On the one occasion that Pomposo Lopez answered the house
No. 19-1026 Page 3
phone in May 2015, an unfamiliar female voice told her to be careful “because children
can get lost and be found later without their organs.” Pomposo Lopez reported this call
to the police, who again refused to help her if she did not pay.
The next month, Pomposo Lopez and her children fled Mexico to escape the
threats. Since they left, Pomposo Lopez and her partner have not received any
threatening phone calls or text messages. But Pomposo Lopez’s father in Mexico
continued to receive calls from an unknown caller, asking to speak with Pomposo
Lopez.
Pomposo Lopez and her children sought to reenter the United States in Laredo,
Texas without visas and were stopped at the border. They were placed in removal
proceedings and found removable. They applied for asylum and withholding of
removal based on what they later identified as a social group comprising (1) individuals
or family members of individuals unable to leave a familial, or similar,
relationship/situation, and (2) individuals or family members of individuals who have
reported crime/familial abuse. They also sought CAT protection.
After a series of continued hearings, the immigration judge denied all their
applications. The IJ found Pomposo Lopez credible but concluded that the past harm
did not rise to the level of persecution. The IJ did not discuss the proposed social groups
but determined that any persecution was not based on a protected ground because the
threats were based on a personal family dispute. The IJ further concluded that Pomposo
Lopez had not established a well-founded fear of persecution that was objectively
reasonable, in part, because no evidence reflected that Pomposo Lopez, her partner, or
her relatives in Mexico had received threats in several years, and the police had closed
the sexual abuse case against the nephew. Because Pomposo Lopez could not meet the
standard for asylum, the IJ also determined that she could not meet the higher standard
for withholding of removal. The IJ denied CAT protection, finding that there was no
evidence that the Mexican government acquiesced or even knew of any harm and that
the incidents that she described do not constitute torture.
Pomposo Lopez appealed to the Board, which upheld the IJ’s decision. The
Board agreed with the IJ that the harm did not rise to the level of past persecution. The
Board also determined that the harm was based on a personal family dispute and that
even if the particular social groups were cognizable, the IJ correctly concluded that the
family would not be targeted in the future based on any protected group. Finally, the
Board agreed with the IJ that the family was ineligible for CAT protection because they
No. 19-1026 Page 4
had not shown a likelihood of being tortured in Mexico with the acquiescence of the
government.
II.
On appeal, Pomposo Lopez first contends that the Board erred by concluding
that she did not demonstrate past persecution to support her claims of asylum and
humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii). She argues that considered
together, the repeated phone threats on behalf of the nephew, the attempted
kidnapping of Aryela, and her own holdup at gunpoint all rise to the level of
persecution. She emphasizes that the incident at gunpoint and the phone message—
warning her that her children may get lost and turn up without organs—are “credible
threat[s] to inflict grave physical harm,” Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir.
2011), of an “immediate or menacing nature.” Bejko v. Gonzales, 468 F.3d 482, 486
(7th Cir. 2006).
We review the Board’s decision under the deferential “substantial evidence”
standard and will reverse only if the evidence compels a contrary finding. N.Y.C.C. v.
Barr, 930 F.3d 884, 888 (7th Cir. 2019). The evidence to which Pomposo Lopez points
does not compel a finding of past persecution. Persecution involves “the use of
significant physical force against a person’s body” “or nonphysical harm of equal
gravity.” Stanojkova, 645 F.3d at 948. A single, unsuccessful attempt to abduct Aryela at
gunpoint and a series of threatening phone messages, without any physical harm or
further attempts to carry out the threats, do not describe grave harm to compel a
finding of past persecution. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Mema v.
Gonzales, 474 F.3d 412, 418 (7th Cir. 2007) (abduction at gunpoint followed by detention
and physical abuse did not compel conclusion of past persecution); Hasanaj v. Ashcroft,
385 F.3d 780, 782 (7th Cir. 2004) (single incident at gunpoint with no physical harm did
not compel finding of past persecution).
Moreover, “[t]hreats can constitute past persecution only in the most extreme
circumstances, such as where they are of a most immediate or menacing nature or if the
perpetrators attempt to follow through on the threat” but “[i]n the majority of cases”
threats do not compel a finding of past persecution. Bejko, 468 F.3d at 486. A finding of
past persecution can be compelled, however, if threats are accompanied by other
incidents of severe violence. See Cecaj v. Gonzales, 440 F.3d 897, 899–900 (7th Cir. 2006)
(past persecution found after two detentions with beatings, gunshot intended to
intimidate, threatening phone calls, child kidnapping, and another threat); Kantoni
No. 19-1026 Page 5
v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (past persecution found in situation of
“rape, the destruction of one’s business, threats, detention, more threats, and threatened
seizure of one’s children”). Here, the gunpoint incident was fortunately an isolated
occurrence, and there is no evidence that the perpetrators attempted to follow through
on the threat. Although the incident occurred on the street near the family’s home, the
family remained there for four more months without further encounters. Because
Pomposo Lopez has not established past persecution, her claim for humanitarian
asylum also fails. See Georgieva v. Holder, 751 F.3d 514, 523 (7th Cir. 2014).
Pomposo Lopez next attacks several grounds supporting the IJ’s conclusion that
she lacks a well-founded fear of future persecution. First, she says that the IJ
unreasonably concluded that she had not shown a well-founded fear because the family
had not received any threats since fleeing to the United States. This conclusion is
unreasonable, she contends, because it requires asylum applicants to demonstrate that
threats are ongoing even after they have successfully fled danger—the very basis of
their asylum claim. But the IJ’s reliance on the absence of any threats after Pomposo
Lopez fled Mexico is reasonable given the nature of the threats in this case.
Pomposo Lopez testified that the perpetrators of the threats and harm—the nephew
and his girlfriend—reside in the United States and have family connections in both
countries, and, thus, could reasonably access the family in either country. Indeed, the
threatening phone messages began when Pomposo Lopez was in the United States. Yet,
despite this access, no one in Pomposo Lopez’s family received any threats, in either
country, after she fled Mexico.
Pomposo Lopez counters that the IJ overlooked evidence from her declaration
that her father received phone calls for her in Mexico after she fled. But the relevant part
of the declaration reads: “My father is still receiving phone calls for me in Mexico. The
numbers are marked private. We don’t know who is calling. My father tells them I am
not there.” This evidence does not establish that her father received any threats, and
thus does not undermine the IJ’s conclusion that no threats occurred since Pomposo
Lopez left Mexico.
Next, Pomposo Lopez challenges the IJ’s determination that she lacks a fear of
persecution on grounds that Aryela withdrew her statements about the alleged sexual
abuse and the police closed the case. It was only after the police closed the case, she
contends, that the most significant harm occurred—the attempted kidnapping at
No. 19-1026 Page 6
gunpoint. The case’s closure, then, she insists, is not indicative of whether she would
reasonably experience further harm for filing the police report.
But substantial evidence supports the IJ’s conclusion that Pomposo Lopez had no
reason to fear future persecution. The IJ reasonably concluded that—because Pomposo
Lopez and her partner had not heard from the nephew or his girlfriend in several years
and there was no threat of criminal charges for the alleged abuse—the family had no
reason to fear further threats from the nephew. The fact that Pomposo Lopez
experienced serious threats months after Aryela filed and withdrew her sexual abuse
complaint does not weaken the IJ’s determination that the fear of further threats several
years later was objectively unreasonable given the absence of any threats in the
intervening two years.
Because we have concluded that the record does not compel a finding that
Pomposo Lopez had a well-founded fear of future persecution, we need not address her
arguments that any persecution was based on her membership in a particular social
group.
Pomposo Lopez also challenges the denials of her claims of statutory
withholding of removal and withholding of removal under CAT. The standard for
withholding of removal is more stringent than that for asylum. Boci v. Gonzales, 473 F.3d
762, 767 (7th Cir. 2007). To qualify for withholding of removal, an alien must
demonstrate a clear probability that he or she will face persecution if removed. Id.Because Pomposo Lopez has not met the more lenient burden of proof for asylum, she
does not qualify for withholding of removal.
Finally, Pomposo Lopez seeks protection under CAT. To receive this protection,
an applicant must show that “it is more likely than not that one would be tortured if
removed to the proposed country of removal.” Sarhan v. Holder, 658 F.3d 649, 653
(7th Cir. 2011) (quoting Toure v. Holder, 624 F.3d 422, 429 (7th Cir. 2010)). “Torture” is
defined as “severe pain or suffering” or an “extreme form of cruel and inhuman
treatment” that is intentionally inflicted with the consent or acquiescence of a public
official. 8 C.F.R. § 208.18(a)(1)–(2). Pomposo Lopez has provided no evidence of torture
as defined by federal regulations, thus the record does not compel granting her relief
under CAT.
Because substantial evidence supports the Board’s conclusions, we deny the
petition for review.