Sosa-Perez v. Sessions , 884 F.3d 74 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1304
WENDY CAROLINA SOSA-PEREZ, CHRISTHIAN JASSELL DIAZ-SOSA,
EMIR FABRIZIO DIAZ-SOSA,
Petitioners,
v.
JEFFERSON B. SESSIONS, III,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Selya, and Stahl,
Circuit Judges.
Traci N. Firicano, with whom Sheri F. Murray was on brief,
for petitioners.
Anna Juarez, Office of Immigration Litigation, with whom
Melissa K. Lott, Trial Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, Civil Division, and M.
Jocelyn Lopez Wright, Senior Litigation Counsel, Office of
Immigration Litigation, were on brief, for respondent.
February 28, 2018
BARRON, Circuit Judge. Wendy Sosa-Perez (Sosa), a
Honduran national, petitions for review of the Board of Immigration
Appeals' (BIA) dismissal of her appeal from the denial of her
application for asylum and withholding of removal for herself and,
derivatively, her two minor children. She does so on the basis of
the violent attack that she claimed to have suffered in that
country in 2013 and the numerous violent attacks that she claimed
other members of her family suffered over the course of more than
three decades. Given the deference that we owe the BIA's factual
findings, we deny the petition for review.
I.
We first review the basic legal background. We then
describe the facts relevant to the issues before us, as well as
the BIA's ruling and the ruling by the Immigration Judge (IJ),
which the BIA adopted.
A.
To be eligible for asylum, an applicant bears the burden
of proving by a preponderance of the evidence that she is "unable
or unwilling to return to" her home country because she has a
"well-founded fear of persecution." 8 U.S.C. § 1101(a)(42)(A); 8
U.S.C. § 1158(b)(1)(B)(i). If the applicant can show that she has
faced persecution in the past, then she has established a
"rebuttable presumption of a well-founded fear of future
persecution." Harutyunyan v. Gonzales, 421 F.3d 64, 67 (1st Cir.
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2005). Unless that presumption is overcome, the applicant's past
persecution supplies the basis for finding that she has a well-
founded fear of persecution and is potentially eligible for asylum.
Id.
If the applicant fails to demonstrate that she has faced
past persecution, she may still demonstrate a well-founded fear of
future persecution in either of two ways. She may demonstrate
that she has a genuine and objectively reasonable fear of suffering
individualized persecution in the future, or she may
"demonstrat[e] 'a pattern or practice in his or her country of
nationality . . . of persecution of a group of persons similarly
situated to the applicant on account of' a protected ground."
Decky v. Holder, 587 F.3d 104, 112 (1st Cir. 2009) (quoting
8 C.F.R. § 1208.13(b)(2)(iii)(A)).
There is no precise definition of "persecution," but it
must "add up to more than mere discomfiture, unpleasantness,
harassment, or unfair treatment." Nikijuluw v. Gonzales, 427 F.3d
115, 120 (1st Cir. 2005). In addition, the asylum seeker must
show that the persecution has a "nexus" to one of the statutorily
enumerated protected grounds, such as membership in a "social
group," like a nuclear family. Guerra-Marchorro v. Holder, 760
F.3d 126, 128 (1st Cir. 2014); 8 U.S.C. § 1101(a)(42); see also
Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir. 2008) ("Kinship can be
a sufficiently permanent and distinct characteristic to serve as
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the linchpin for a protected social group within the purview of
the asylum laws."). Finally, the asylum seeker must also show
that the harm is attributable to the action or inaction of the
government of her home country. Morales-Morales v. Sessions, 857
F.3d 130, 135 (1st Cir. 2017).
Even if an asylum applicant is not eligible for asylum,
she still may be entitled to receive what is known as withholding
of removal, which provides her protection from being removed from
the United States without offering all of the other benefits that
come with receiving asylum. 8 U.S.C. § 1231(b)(3)(A); Soeung v.
Holder, 677 F.3d 484, 487 (1st Cir. 2012) (explaining difference
between asylum and withholding of removal). To be eligible for
withholding of removal, however, the applicant must prove by a
"clear probability," Lopez Perez v. Holder, 587 F.3d 456, 463 (1st
Cir. 2009), that her "life or freedom would be threatened in [the
country to which she would be removed] because of [her] race,
religion, nationality, membership in a particular social group, or
political opinion" if she were returned there. 8 U.S.C.
§ 1231(b)(3)(A); Marroquín-Rivera v. Sessions, 861 F.3d 7, 8 (1st
Cir. 2017). Because the "clear probability" standard is more
onerous than the "well-founded fear" standard, an alien who fails
to meet the asylum standard will necessarily fail to meet the
withholding of removal standard. Amilcar-Orellana v. Mukasey, 551
F.3d 86, 92 (1st Cir. 2008).
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B.
Sosa and her two children, Christhian and Emir Diaz-
Sosa, were apprehended by the Department of Homeland Security while
entering the United States without inspection on June 14, 2014.
They conceded their removability, and Sosa thereafter submitted a
timely application for both asylum and withholding of removal.
Sosa listed Christhian and Emir as derivative applicants on her
asylum and withholding of removal applications.1
At her removal proceedings before the IJ, Sosa testified
and submitted a declaration in support of her applications for
asylum and withholding of removal. Through that evidence, she
described that she had been the victim of a violent attack in 2013,
while she was living in Honduras.2 Specifically, she stated in
her declaration and testimony that she was "robbed at knife point"
in that incident and that this robbery came after she had been
"receiving threatening calls from the local gangs," which she
described in her declaration as having been made "anonymously" and
as containing threats "to kill her and her sons if she did not pay
1 Sosa also initially indicated that she would file
applications for Special Immigrant Juvenile adjustment of status
for her two minor children, but never did so. The BIA thus deemed
these claims waived, and Sosa does not challenge that determination
on appeal.
2 Sosa's written statement indicated that this event occurred
in 2014. However, as she was not given an opportunity to explain
this inconsistency, the IJ did not hold this inconsistency against
her.
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[the callers] money." In her testimony regarding that 2013
incident, Sosa further explained that the robbers "manhandled" her
and "wanted to rape [her], but . . . somebody else showed up.
[She] was . . . spared that . . . and [she] got home very nervous,
but nothing happened."
Through her evidence at the removal proceeding, Sosa
also recounted the history of violent incidents that a number of
her family members -- including a great uncle, two uncles, a
grandmother (who was threatened with a machete), an aunt, and a
cousin -- had suffered. She described that history as follows.
In the early 1980s, "local gangs" robbed one of Sosa's
uncles, took his horse, and shot him in the head, killing him.
Two years later, her great-uncle, who had witnessed the murder of
her uncle, was "found . . . murdered."
More than a decade later, in 1999, a second of Sosa's
uncles "was attacked by a gang while standing outside her
grandmother's home." During that incident, "[t]he gang members
robbed [her uncle of] his chain and beat him up very badly."
During this incident, one of this uncle's attackers also
threatened her grandmother with a machete and threatened to
decapitate her uncle. The uncle and grandmother reported this
incident to the police in Honduras and provided the police with
"as many names and aliases" of the assailants as they could. The
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police took the report, but "did nothing to help or protect" her
uncle and grandmother.
In addition, more than a decade after this incident
involving her uncle and grandmother, her aunt and cousin in March
of 2011 traveled to Honduras from the United States to visit her
grandmother. On the second day of their visit to Honduras, they
were "attacked and robbed" by "[s]ome men." The attackers fled
when a neighbor fired his gun into the air.
Finally, in 2014, after Sosa had been the victim of the
2013 robbery, her grandmother's house was broken into. Sosa
testified that she did not know who the assailant was.
Sosa testified that she has only two family members
remaining in Honduras. They are her grandmother, who Sosa
testified has fortified her house with electrified barbed wire,
and her uncle, who she testified has, since the 2011 incident in
which her aunt and cousin were robbed while visiting Honduras,
left the region in Honduras where Sosa's family lives.
As to why these attacks on her family had occurred, Sosa
stated in her declaration that, "I am not sure why but my family
has always been targeted by the local gangs." She added that
"[t]he local gangs have always tried to rob my family, physically
harm us and even kill us." Sosa also stated that, "I don't know
why the gangs have always targeted my family[,] they just have
. . . . I think it may be because we are considered [a] wealthy
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family in Honduras because we have always owned a lot of land and
had big houses." Finally, in her testimony, when asked why her
family had been "attacked so many times," Sosa answered: "[P]erhaps
out of jealousy. I don't know really."
Sosa contends to us, as she did to the IJ and the BIA,
that this evidence -- cumulatively -- sufficed to demonstrate that
she suffered past persecution in 2013 on account of her membership
in her family and that this past persecution gives rise to a
presumption of future persecution that the government has not
rebutted. She also contends, separately, that, in light of the
violence that members of her family have endured over the years in
Honduras, she has a well-founded fear of future persecution on
account of her familial ties, even if the 2013 incident in which
she was victimized does not itself constitute an instance of past
persecution that could give rise to a presumption of her having a
well-founded fear of future persecution.
The IJ denied Sosa's applications for asylum and
withholding of removal and ordered Sosa and her minor children
removed. The IJ reasoned that the 2013 attack did not constitute
persecution. In so ruling, the IJ concluded that Sosa's "brief
description of the incident [did] not indicate that she was
physically injured" and the record did not "suggest that the [2013]
attack was anything more than an isolated crime committed in a
country with widespread violence," as she had failed to establish
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that the attack was on account of her family membership.
Accordingly, the IJ concluded that Sosa was not entitled, on the
basis of the 2013 attack, to a presumption of a well-founded fear
that she would face future persecution. See Harutyunyan, 421 F.3d
at 67.
The IJ also found that, even apart from the 2013 attack,
Sosa had not met the requirements to show that she was at risk of
future persecution on account of her family membership. The IJ
ruled that she had not demonstrated an objectively reasonable fear
of future persecution because she had "not established that any
past or future harm is (or would be) on account of her social group
membership," since she had provided no evidence that "family
membership was 'at the root' of [the] harm" she and her family
members experienced. Indeed, the IJ concluded, Sosa "even
acknowledged that she does not know why her family has been
targeted by the gangs." In consequence, the IJ concluded, Sosa
had "merely shown that multiple family members had negative
experiences, without establishing that those experiences are
causally linked to family membership."
Finally, the IJ concluded that Sosa had, for the same
reasons, not demonstrated that there was a "pattern or practice"
of persecution of her family that would support a conclusion that
she had an objectively reasonable fear of persecution on account
of her membership in her family.
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The BIA adopted the reasoning of the IJ. The BIA
explained that the attack in 2013 did not constitute persecution.
The BIA also reasoned that Sosa had not demonstrated that she had
a "well-founded fear of [future] persecution" because she had not
demonstrated that the mistreatment her family members experienced
was on account of their family membership. Lopez de Hincapie v.
Gonzales, 494 F.3d 213, 217-18 (1st Cir. 2007).
Sosa now timely petitions for review of the BIA's
dismissal of the appeal from the IJ's denial of her asylum and
withholding of removal claims on the ground that the BIA's ruling
is not supported by substantial evidence. She also contends the
BIA violated the Fifth Amendment's Due Process Clause by refusing
to consider certain portions of her evidence and arguments.
II.
When "the BIA conducts a de novo review of the record,
independently validates the sufficiency of the evidence, and
adopts the IJ's findings and conclusions, the IJ's findings become
the BIA's." Laurent v. Ashcroft, 359 F.3d 59, 64 n.3 (1st Cir.
2004). Our review of those findings is for "substantial evidence,"
which means we must "defer to those findings of fact that are
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Perlera-Sola v. Holder, 699
F.3d 572, 576 (1st Cir. 2012) (quoting Lobo v. Holder, 684 F.3d
11, 16 (1st Cir. 2012)). We will therefore sustain the findings
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"unless the record is such as to compel a reasonable factfinder to
arrive at a contrary determination." Palma-Mazariegos v.
Gonzales, 428 F.3d 30, 34 (1st Cir. 2005).
The BIA, in adopting the IJ's decision, determined that
among the reasons that Sosa's asylum claim failed was that she had
failed to satisfy her burden of "establishing the requisite nexus
between the alleged harm she fears and her membership in a
particular social group." We focus on that finding here in order
to determine whether it is supported by substantial evidence or,
put otherwise, to determine whether a contrary finding is compelled
on this record.
We start with Sosa's contention that she is entitled to
a presumption of a well-founded fear of future persecution because
she suffered past persecution in consequence of the attack that
she suffered in 2013. Sosa is correct that a nuclear family is a
protected social group. See Aldana-Ramos v. Holder, 757 F.3d 9,
15 (1st Cir. 2014). She is also correct that, to meet her burden
to show the requisite "nexus" between her familial ties and this
attack, she need not show that her membership in her family was
the sole reason that she was targeted in that attack. She need
only show that her membership in that protected group was a
"central reason" that she was targeted. Sugiarto v. Holder, 586
F.3d 90, 95 (1st Cir. 2009) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
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Here, the BIA, in rejecting Sosa's asylum claim, adopted
the finding of the IJ that, considering the record as a whole,
Sosa had not put forth evidence sufficient to "suggest that the
attack was anything more than an isolated crime committed in a
country with widespread violence," and thus that she had failed to
establish that the incident was related to her family membership.
And that finding is supported -- even if it is not compelled -- by
the record.
The record indicates that the attack in 2013 followed
Sosa's receipt of calls from what she described as members of
"local gangs." Sosa did not, however, either in her testimony or
her declaration, state that she knew who the assailants were in
the 2013 incident or what their affiliation was. Nor does she
suggest otherwise in her briefing to us. She also offers no direct
evidence to support her assertion that the assailants knew that
she was a member of the family that she alleges they were
targeting, let alone that they attacked her on that basis.
She nevertheless argues that the evidence that multiple
members of her family have been the victims of violent attacks
over many years, including by members of local gangs, provided
"sufficient evidence for a reasonable person to believe that the
harm" she suffered in 2013 was on account of her kinship status.
But, even assuming the record provides a basis for the agency to
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so conclude, we do not see how the record could be read to compel
that conclusion.
As the BIA and IJ supportably concluded, there is
"rampant crime" and "pervasive societal violence" in Honduras,
which has "far reaching effects on many segments of the
population." And, as both the IJ and the BIA noted, Sosa admitted
that she did not know the motivation underlying many of the attacks
on her family members.
We note in this regard that, when asked about the attack
on her uncle in 1980, she testified that "with that uncle, we don't
know whether it was simply a robbery or it was part of revenge
against the family." As to her great uncle, who was killed two
years later, she does not explain who murdered him, just that her
"family found [him] murdered." With regard to the 1999 attack on
her uncle, she testified that "he . . . was robbed" by individuals
who "had their faces covered." She did not claim, however, to
know the robber's identity or affiliation, thereby making it hard
to rely on her testimony to attribute that attack to a family-
based motivation. And when asked about the attack on her aunt and
cousin during their visit to Honduras in 2011, she testified merely
that "some individuals" robbed them. Finally, with respect to the
break-in at her grandmother's home, which post-dates the attack
she suffered in 2013, Sosa testified that "we don't know" who had
tried to break into her grandmother's house.
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In light of these aspects of the record, we do not see
how the fact that over the course of three decades a number of
other members of her family were subjected to acts of violence can
in and of itself compel (even assuming such a fact permits) the
conclusion that those prior attacks on members of her family were
themselves made on account of the victims' membership in Sosa's
family, rather than that they were a "series of highly unfortunate
criminal incidents occurring within a culture of widespread
societal violence." And that in turn means that we cannot say
that the record compels a different conclusion as to what motivated
the 2013 attack.
This conclusion accords with our recent decision in
Ruiz-Escobar v. Sessions, No. 17-1539, 2018 WL 671125 (1st. Cir.
2018). In Ruiz-Escobar, the petitioner alleged that he had been
the victim of past persecution on account of his membership in his
family. Id. at *1. As support for this claim, he presented
evidence that various members of his family had been killed, and
that he himself had been the victim of a break-in and threats.
Id. at *1-2. But, like here, Ruiz-Escobar offered no evidence
that his family members had been killed based on their family
membership, rather than for reasons unrelated to their family
membership. Id. at *5-6. Indeed, like Sosa, he acknowledged that
he "had no idea who [his attackers] were[,]" and offered no basis
for his assertion as to the reason for his family members' deaths.
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Id. at *5. We thus concluded that Ruiz-Escobar failed to
demonstrate a nexus between his past mistreatment and his familial
membership, and so we held that he had not demonstrated that he
had suffered past persecution. Id.
In pressing the case that the BIA did err, Sosa relies
on Aldana-Ramos. 757 F.3d 9. There, we determined that the BIA's
"nexus" ruling could not be sustained because the BIA failed to
even mention, let alone engage with, evidence critical to the
asylum seekers' argument that they had demonstrated that their
persecution was on account of their family membership. Id. at 18.
But, Sosa has presented no evidence analogous to the evidence of
targeting by a specific gang on account of membership in a
particular family that the petitioners put forward in Aldana-
Ramos. And, unlike in Aldana-Ramos, the BIA in this case, by
adopting the IJ's decision, fully engaged with the arguments and
evidence that Sosa did present.
Sosa does also contend that, even if the 2013 attack on
its own did not constitute past persecution on account of her
membership in her family, the tragic experiences of her family
members, taken together, compel the conclusion that she has a
"well-founded fear" of future persecution. But, as we have just
explained, Sosa has failed to identify evidence in the record that
would compel -- even if the evidence she did put forward might
permit -- a finding that the attacks on her family members were
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connected, let alone compel the conclusion that the assailants in
these incidents targeted her family members on account of the
family to which they belonged. And as the IJ correctly concluded,
"[w]here a petitioner presents 'no evidence other than his own
speculation' to forge the statutorily required 'link,' no nexus is
established." See Guerra-Marchorro, 760 F.3d at 129. That
conclusion is also consistent with our recent decision in Ruiz-
Escobar. 2018 WL 671125 at *7.
Finally, Sosa separately argues that the record suffices
to establish that there is a "pattern or practice" in Honduras of
persecuting her family, and thus that she fears future persecution
there. See 8 C.F.R. § 1208.13(b)(2)(iii)(A). To make that
showing, she must put forth evidence to demonstrate that there is
a "regular and widespread persecution creating a reasonable
likelihood of persecution of all persons in the group." Ye v.
Lynch, 845 F.3d 38, 45 (1st Cir. 2017) (quoting Rasiah v. Holder,
589 F.3d 1, 5 (1st Cir. 2009)).
But the BIA adopted the IJ's ruling that Sosa had not
met her burden in that regard, and the record does not compel the
contrary conclusion that the attacks that she describes were
motivated -- in significant part -- by the fact that the victims
were members of her family. In arguing otherwise to us, Sosa does
point to the evidence in the record that members of her family
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have taken steps to avoid being victimized.3 But, the IJ considered
that evidence and supportably found that the record failed to
establish that there was "regular and widespread persecution
creating a reasonable likelihood of persecution of all persons in
the group." Gilca v. Holder, 680 F.3d 109, 117 (1st Cir. 2012)
(quoting Rasiah, 589 F.3d at 5).
For these reasons, Sosa's challenge to the denial of her
asylum claim fails.4 And so, for identical reasons, must her
3 In her reply brief, Sosa relies extensively on a series of
recent cases from the Fourth Circuit to contend that the BIA erred
in denying her claim based on kinship persecution. To the extent
that this raises new arguments, they are waived. Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000). In
any event, the cases that she relies on do not alter our conclusion
that, on this record, Sosa has failed to demonstrate that the
evidence she put forth regarding the attacks against members of
her family compels the conclusion that the attacks were on account
of family membership. In each of the Fourth Circuit cases that
the she relies on there was some evidence in the record tying the
petitioner's persecution to their kinship or some failure of the
BIA to engage with the petitioner's arguments. See Zavaleta-
Policiano v. Sessions, 873 F.3d 241, 248-50 (4th Cir. 2017)
(remanding to BIA based on BIA's erroneous holding that the
petitioner had not established a nexus because the BIA had ignored
evidence that the petitioner had been threatened because her father
had fled the gang); Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir.
2017) (holding the BIA erred in determining that a petitioner had
not established a nexus between persecution and her family
relationship where the record showed that petitioner was targeted
after she threatened to file a police report accusing a local
criminal of responsibility for a family member's disappearance);
Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015)
("Hernandez's relationship to her son is why she, and not another
person, was threatened with death if she did not allow him to join
[a gang], and the gang members' demands leveraged her maternal
authority to control her son's activities.").
4 In a Rule 28(j) letter, Sosa argues that the fact that her
aunt's asylum claim based on her membership in the same family was
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challenge to the denial of her withholding of removal claim.
Amilcar-Orellana, 551 F.3d at 92.
III.
We turn next to Sosa's due process claim. Sosa argues
that the decision by the BIA was "arbitrar[y]" because a footnote
to a section of its opinion discussing Sosa's failure to provide
details about the attack in 2013 stated that "to the extent that
the lead respondent's counsel makes statements on appeal that are
not supported by citations to the record on appeal, the statements
of counsel are not evidence and are not entitled to any evidentiary
weight." There is no doubt that aliens are entitled to due process
in our immigration courts, see Pena-Muriel v. Gonzales, 489 F.3d
438, 443 (1st Cir. 2007), and we afford de novo review to
determinations regarding the "contours" of the process due to them,
Eze v. Gonzales, 478 F.3d 46, 47 (1st Cir. 2007).
The government characterizes this footnote as merely
stating the "noncontroversial point that statements and arguments
by counsel [are] not themselves evidence in the case." See I.N.S.
v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (concluding that
granted (and, according to Sosa, was not opposed by the government)
in 2015 demonstrates that the BIA's determination in this case was
in error. But, while Sosa raised the fact that her aunt's asylum
claim was granted before the BIA, she did not do so on appeal to
this Court until after oral argument. This argument is therefore
waived. See United States v. DeMasi, 40 F.3d 1306, 1320 n.14 (1st
Cir. 1994).
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"[c]ounsel's "unsupported assertions" did not establish facts
sufficient to support eligibility for suspension of deportation);
United States v. Castro-Davis, 612 F.3d 53, 68 (1st Cir. 2010)
("[A]rguments and statements of counsel are not evidence.");
Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (BIA 1980)
("[C]ounsel's arguments are not evidence."). But, even if we were
to accept Sosa's characterization of the footnote, she has not
pointed to any evidence that was unfairly excluded from the BIA's
analysis, nor any argument that was overlooked that would support
a finding that she did not receive a "fair opportunity to be
heard." Pena-Muriel, 489 F.3d at 443. Nor does she contend that
any content of the record was itself excluded from consideration.
She has thus not demonstrated that the alleged error resulted in
prejudice to her. Pulisir v. Mukasey, 524 F.3d 302, 311 (1st Cir.
2008) (citing Shmyhelskyy v. Gonzales, 477 F.3d 474, 482 (7th Cir.
2007)). Accordingly, this claim fails.
IV.
For the foregoing reasons, the petition for review is
denied.
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