N. Y. C. C. v. William P. Barr , 930 F.3d 884 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2618
N.Y.C.C.,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A000-000-000
____________________
ARGUED APRIL 16, 2019 — DECIDED JULY 19, 2019
____________________
Before EASTERBROOK, KANNE, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. To obtain asylum in the United
States, N.Y.C.C. needed to establish that she has faced past
persecution or harbors a well-founded fear of future persecu-
tion based on her membership in a particular social group. An
immigration judge determined that she fell short of making
this showing and denied her application. The Board of Immi-
gration Appeals agreed. N.Y.C.C. has now sought our review,
2 No. 18-2618
and she faces the difficult burden of showing that the record
compels a different result. Seeing nothing in the record that
required the immigration judge (or the Board) to conclude
that N.Y.C.C. experienced past persecution or reasonably
fears future persecution, we deny her petition.
I
N.Y.C.C., a citizen of Mexico, applied for asylum in De-
cember 2014. Her application led to a hearing before an immi-
gration judge in September 2015, and there she testified and
presented documents to support her petition, including an ex-
pert’s report on the conditions in Mexico and written state-
ments from family members.
N.Y.C.C. testified that she fled Mexico because of threats
and harassment by her former partner, a man going by the
initials E.G. and the father of one of her sons. N.Y.C.C. be-
lieves E.G. and his cohorts are members of the Mexican cartel
known as La Familia Michoacana. She roots this view in ob-
servations she made while the two of them lived together dur-
ing parts of 2011 and 2012. More specifically, N.Y.C.C. testi-
fied that E.G. had a large house despite working at a carwash
and frequently stayed out late only to return home in different
cars. He often hosted visitors at their home and held discus-
sions he kept N.Y.C.C. from hearing. N.Y.C.C. testified that
she once overheard a visitor mention “going to do the job
now,” and she believed this meant E.G. and his friends
planned to kidnap someone. She also testified to finding a gun
in their home. All of this caused N.Y.C.C. to believe E.G. and
his friends belonged to the La Familia cartel.
N.Y.C.C. ended her relationship with E.G. in July 2012. She
told the immigration judge that she did so because of his
No. 18-2618 3
suspicious behavior and her fear that opposing cartel mem-
bers who wished to harm E.G. and La Familia might also end
up harming her or her children. This fear, she added, led to
her moving back into her mother’s house about two hours
away while she was nine months pregnant with E.G.’s child.
E.G. reacted by telling her that she could leave if she wanted
to.
For the next year or so, E.G. was not around much, only
showing up in August 2012 when N.Y.C.C. contacted him to
pay for the hospital expenses related to the birth of their child.
He resurfaced in June 2013, when N.Y.C.C. began to see him
occasionally drive by her home and the restaurant where she
worked. She found this worrisome and believed E.G. was
looking for her. On a few occasions he entered the restaurant
to eat, one time telling N.Y.C.C. that she needed to move back
in with him. N.Y.C.C. did not agree to do so, and E.G. reacted
by threatening to take her sons away—“the bad way” if nec-
essary. N.Y.C.C. explained that her supervisor observed these
events and, aware that E.G. had been following N.Y.C.C., took
her son (who was in the restaurant) into a bathroom to hide.
E.G. left that day in anger but, as N.Y.C.C. recounted in her
testimony, kept returning to the restaurant to look for her.
Following this confrontation in the restaurant, N.Y.C.C.
moved to a different apartment outside of town. Despite do-
ing so, she continued to see E.G. driving by her apartment late
at night, often in different cars. She recalled one of the cars
that had driven by her apartment also followed her to her
son’s school one day. N.Y.C.C. remembered another time
when E.G. and some of his friends revved their engines out-
side her apartment and shined their car lights into her room.
4 No. 18-2618
N.Y.C.C. complained to the local police but was told there
was nothing they could do. After the police offered no help,
she fled to the United States with her children in December
2014. N.Y.C.C. has not spoken to E.G. since their confrontation
in the restaurant sometime around June 2013. But, even after
she left Mexico, E.G. sent one of his relatives to her mother’s
house in Mexico to ask for her phone number and wherea-
bouts.
Drawing on this testimony, N.Y.C.C. argued that she was
entitled to asylum on the basis that she fears persecution as
the mother of a cartel member’s child and as a Mexican
woman who cannot leave her relationship. The immigration
judge found that, although N.Y.C.C. testified credibly, her tes-
timony fell short of establishing past persecution or a well-
founded fear of future persecution and an inability to relocate
in Mexico to avoid persecution. So the judge denied her asy-
lum application. In doing so, the immigration judge added
that N.Y.C.C. had not shown she was a member of either so-
cial group she identified—Mexican women who cannot leave
their relationship and mothers of a cartel member’s child—
because she did leave her relationship and her belief that E.G.
was a cartel member was too speculative.
The Board of Immigration Appeals agreed and dismissed
her appeal.
II
“Typically, when the [Board of Immigration Appeals] is-
sues a decision, that decision becomes the basis for review.”
Moab v. Gonzalez, 500 F.3d 656, 659 (7th Cir. 2007). But when
the Board adopts the immigration judge’s findings, as it did
here, “we review the immigration judge’s findings as
No. 18-2618 5
supplemented by the Board’s.” W.G.A. v. Sessions, 900 F.3d
957, 962 (7th Cir. 2018). We review questions of law de novo
and findings of fact for “substantial evidence.” See Cece v.
Holder, 733 F.3d 662, 675–76 (7th Cir. 2013) (en banc). Whether
a petitioner suffered past persecution or harbors a well-
founded fear of future persecution are factual findings subject
to the deferential “substantial evidence” standard, allowing
us to reverse only if the evidence compels a different result.
See Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir. 2013) (explaining
that “whether the facts compel a finding of past persecution is
the standard for judicial review”).
To receive asylum, a petitioner must establish that she is
“unable or unwilling” to return to her home country “because
of persecution or a well-founded fear of persecution on ac-
count of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(A). An applicant grounding her petition on a well-
founded fear of future persecution by a non-government ac-
tor faces the added burden of establishing that she cannot rea-
sonably relocate to another part of her home country to avoid
future persecution. See 8 C.F.R. § 1208.13(b)(3)(i).
While neither the Immigration and Nationality Act nor its
implementing regulations define “persecution,” we have ex-
plained that the term does not require the conduct be “life-
threatening or freedom-threatening,” Ahmed v. Gonzalez, 467
F.3d 669, 673 (7th Cir. 2006), but it “must rise above mere har-
assment,” Orellana-Arias v. Sessions, 865 F.3d 476, 487 (7th Cir.
2016). We have determined persecution to be “the use of sig-
nificant physical force against a person’s body,” “the infliction
of comparable physical harm without direct application of
force,” and “nonphysical harm of equal gravity.” Stanojkova v.
6 No. 18-2618
Holder, 645 F.3d 943, 948 (7th Cir. 2011). Mere harassment, on
the other hand, “involves targeting members of a specified
group for adverse treatment, but without the application of
significant physical force.” Id. “The line between harassment
and persecution is the line between the nasty and the barbaric
or alternatively between wishing you were living in another
country and being so desperate that you flee without any as-
surance of being given refuge in any other country.” Id.
Persecution most often manifests itself in the form of “gov-
ernmental persecution.” Hor v. Gonzales, 421 F.3d 497, 501 (7th
Cir. 2005). But an applicant can nonetheless claim persecution
by a private actor (such as by a cartel or one of its members),
and such a claim may succeed if “the government either con-
dones it or is helpless to prevent it.” Id.; see also Plaza-Ramirez
v. Sessions, 908 F.3d 282, 286 (7th Cir. 2018) (“Generalized vi-
olence simply does not justify relief.”).
A
We first consider N.Y.C.C.’s challenge to the immigration
judge’s determination that she did not suffer past persecution.
Threats like the ones N.Y.C.C. testified to E.G. leveling must
be “credible, imminent and severe” before we will consider
them persecution. N.L.A. v. Holder, 744 F.3d 425, 431 (7th Cir.
2014). In N.L.A., for example, threats directed at an asylum
applicant by guerillas from the Revolutionary Armed Forces
of Colombia who murdered her uncle and kidnapped her fa-
ther amounted to persecution “because the FARC backs them
up with acts of violence when its demands are not met,” and
in that instance, the FARC “proved that they would follow
through on their threats by killing the uncle and kidnapping
the father—the gravest harms possible.” Id. at 432.
No. 18-2618 7
Here, by contrast, nothing from the evidence compelled
the immigration judge to conclude that E.G.’s threat was
“credible, imminent and severe.” Id. at 431. E.G. made only a
single vague threat to take N.Y.C.C.’s sons, including the “bad
way,” if she did not move back in with him. But in the months
and indeed years that followed, E.G. never acted in further-
ance of this threat. And this is true despite him knowing
where N.Y.C.C. was in Mexico at almost all times. E.G. had
every opportunity to follow through on the threat but never
did. On this record, then, the immigration judge was on solid
ground when concluding that E.G.’s threat did not amount to
persecution because it was too vague and never materialized
into a more acute and substantial risk to N.Y.C.C. or her fam-
ily. See Bejko v. Gonzalez, 468 F.3d 482, 486 (7th Cir. 2006)
(“Threats can constitute past persecution only in the most ex-
treme circumstances, such as where they are of a most imme-
diate or menacing nature or if the perpetrators attempt to fol-
low through on the threat.”).
The immigration judge was on similarly strong footing
when concluding that E.G.’s harassing conduct while driving
by her home and workplace fell short of establishing past per-
secution. The harassment never crossed the line of presenting
the sort of grave physical or emotional harms we have re-
quired in the past to show persecution. See Stanojkova, 645
F.3d at 948; see also Dandan v. Ashcroft, 339 F.3d 567, 573 (7th
Cir. 2003) (explaining that “actions must rise above the level
of mere harassment to constitute persecution”); Sirbu, 718
F.3d at 659 n.3 (listing cases affirming findings of no past per-
secution that included conduct such as detaining a petitioner
in primitive conditions without medical treatment and hitting
another petitioner in the face).
8 No. 18-2618
B
N.Y.C.C. separately challenges the immigration judge’s
conclusion that she failed to demonstrate a reasonable fear of
future persecution. But here, too, we do not see evidence in
the record compelling a contrary finding. E.G.’s prior threat
and related behavior did not amount to past persecution, so
without evidence to suggest that E.G.’s conduct will escalate
in the future, the facts fall short of requiring us to conclude
N.Y.C.C. will face future persecution. See Boykov v. I.N.S., 109
F.3d 413, 416–17 (7th Cir. 1997) (explaining that the petitioner
did not suffer past persecution and his failure to present evi-
dence showing his treatment would be any worse in the fu-
ture undermined his claim to having a well-founded fear of
future persecution).
Nor does the record compel us to upset the immigration
judge’s related finding that, even assuming N.Y.C.C. had a
well-founded fear of future persecution, she failed to demon-
strate that she was unable to relocate to another part of Mex-
ico. N.Y.C.C. insists she would not be safe anywhere in Mex-
ico. The facts do not support such an unyielding conclusion.
We cannot say that the record evidence precluded the immi-
gration judge from observing that E.G. lacked the intent or re-
sources not only to find her if she moved within Mexico, but
also to then persecute her. The record also falls short of com-
pelling the conclusion that the Mexican government would be
unable or unwilling to help N.Y.C.C. in such a scenario. At the
very least, there is no error in the immigration judge’s more
limited finding that N.Y.C.C. is fluent in Spanish, spent nearly
all her life in Mexico, and has successfully worked at a restau-
rant there—skills and experience that reasonably allow her to
relocate.
No. 18-2618 9
C
We turn to N.Y.C.C.’s contention that the immigration
judge committed legal and factual error that warrants remand
by concluding N.Y.C.C. did not sufficiently demonstrate E.G.
was a cartel member. In her view, this was a crucial fact—ca-
pable of undermining the immigration judge’s key conclusion
that she did not suffer past persecution and lacked a well-
founded fear of future persecution. Invoking decisions from
the Second and Ninth Circuits, she argues that the immigra-
tion judge committed legal error by failing to “give [her] no-
tice of the corroboration that is required and an opportunity
either to produce the requisite corroborative evidence or to
explain why that evidence is not reasonably available.” Ren v.
Holder, 648 F.3d 1079, 1093 (9th Cir. 2011); see also Zheng v.
Lynch, 646 F. App’x 50, 52 (2d Cir. 2016).
But this case does not require us to consider adopting such
an approach because resolving whether E.G. was a cartel
member is not necessary to the outcome here. By N.Y.C.C.’s
own account, even though E.G. was a cartel member at the
time he confronted her in the restaurant and threatened to
take the children, he never used the cartel’s resources to fol-
low through or otherwise commit an act of violence towards
her.
The reality is that E.G.’s conduct—regardless of his affilia-
tion with the La Familia cartel—did not compel the immigra-
tion judge to conclude that N.Y.C.C. suffered past persecution
or harbors a well-founded fear of future persecution. See Bath-
ula v. Holder, 723 F.3d 889, 900 (7th Cir. 2013) (explaining that,
even though a group with the ability and resolve to kill its
adversaries threatened the petitioner, the nature of the threats
and the group’s failure to follow through despite the
10 No. 18-2618
opportunity to do so reflected harassment, not persecution).
The immigration judge therefore had no obligation to prompt
N.Y.C.C. to submit further evidence towards an unnecessary
factual dispute that did not matter to the ultimate outcome.
D
N.Y.C.C. has also appealed the immigration judge’s denial
of her request for withholding of removal and protection un-
der the Convention Against Torture. Her asylum claim had
the lowest burden of proof, so her failure to establish eligibil-
ity for asylum necessarily means that she cannot prevail on
her withholding of removal and CAT claims. See Toure v.
Holder, 624 F.3d 422, 428 (7th Cir. 2010) (explaining that a fail-
ure to prove persecution for purposes of asylum eligibility
necessarily means a petitioner cannot meet the higher stand-
ard for withholding of removal); see also Bathula, 723 F.3d at
903 (explaining that the Convention Against Torture’s re-
quirement to show a future likelihood of torture is a more
stringent standard than persecution).
* * *
N.Y.C.C. has been well-represented on appeal. In the end,
though, she has not carried the weighty burden of showing
that the record compelled the granting of asylum. For these
reasons, we DENY the petition for review.