Francisco Mendoza-Alvarez v. Eric H. Holder Jr. , 714 F.3d 1161 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER MENDOZA- No. 08-74386
ALVAREZ,
Petitioner, Agency No.
A095-734-117
v.
OPINION
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 10, 2013—Pasadena, California
Filed May 3, 2013
Before: Richard C. Tallman and Milan D. Smith, Jr.,
Circuit Judges, and Lee H. Rosenthal, District Judge.*
Per Curiam Opinion
*
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.
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SUMMARY**
Immigration
The panel denied a petition for review of a decision of the
Board of Immigration Appeals denying withholding of
removal to a citizen of Mexico because petitioner failed to
establish that he was a member of a protected social group or
that he would more likely than not be persecuted on that
basis.
The panel held that petitioner’s proposed social group,
which petitioner variously describes as consisting of disabled
persons or all insulin-dependent diabetics or all insulin-
dependent diabetics who suffer from mental illness, did not
qualify as a protected social group because it lacked sufficient
particularity. The panel further held that substantial evidence
supported the Board’s determination that petitioner failed to
demonstrate that his social group membership would be at
least one central reason for being persecuted.
COUNSEL
Liana Harutunyan, Van Nuys, California, for Petitioner.
Jeffrey Lawrence Menkin, Margaret Kuehne Taylor, United
States Department of Justice, Civil Division/Office of
Immigration Litigation, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MENDOZA-ALVAREZ V. HOLDER 3
OPINION
PER CURIAM:
Francisco Javier Mendoza-Alvarez petitions for review of
the Board of Immigration Appeals’ order denying
withholding of removal under 8 U.S.C. § 1231(b) and
returning him to Mexico. The record does not show that if
Mendoza-Alvarez is returned to Mexico, he faces a clear
probability of persecution because of his membership in a
particular social group. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition for review.
I.
Mendoza-Alvarez is a Mexican citizen. He was born in
1975 and came to the United States in 1988. In 1994, he was
diagnosed with insulin-dependent diabetes. He has been
unable to work since a leg injury resulted in the amputation
of the toes on his right foot. He has had two eye surgeries to
correct diabetes-related problems. In 2007, he went into a
diabetic coma lasting several hours. The record shows that he
is at risk of further amputation. He has a family history of
diabetes and has been told that his grandmother died because
she did not receive timely treatment. In addition to diabetes,
Mendoza-Alvarez has been diagnosed as suffering from
depression and posttraumatic stress disorder, in part due to
his childhood with an alcoholic and abusive father, his fears
for his own health, and his younger brother’s paralysis since
the age of 19 from a gunshot wound.
In April 2008, the Immigration Judge denied Mendoza-
Alvarez’s asylum application and his request for withholding
of removal under the Convention Against Torture (CAT), but
4 MENDOZA-ALVAREZ V. HOLDER
granted his request for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A). The IJ denied the asylum application
because it was filed long after the one-year deadline
following Mendoza-Alvarez’s arrival in the United States,
and no exception applied. Mendoza-Alvarez does not
challenge the denial of asylum or withholding of removal
under CAT.
The IJ granted the request for withholding of removal
under § 1231(b)(3)(A) based on Mendoza-Alvarez’s fear of
persecution from the “cumulative threat to his survival from
poverty and the limiting effects of his disabilities on his
employability, access to housing, necessary life saving
medications, and physical and mental health treatment.” The
BIA sustained the DHS’s appeal from the IJ’s order. The
BIA concluded that the social group Mendoza-Alvarez
proposed, framed in the terms presented to the BIA—insulin-
dependent persons with mental-health problems, including
posttraumatic stress and depressive disorders—was not
“particular” as the statute requires. The BIA also concluded
that the record did not show a clear probability of persecution
because of membership in a particular social group.
II.
Whether a group constitutes a “particular social group,”
Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010), and
the meaning of “persecution” under 8 U.S.C.
§ 1101(a)(42)(A), Pitcherskaia v. INS, 118 F.3d 641, 646 (9th
Cir. 1997), are questions of law, which we review de novo.
The BIA’s factual findings as to the existence of persecution
in this case are reviewed for substantial evidence and upheld
“if supported by reasonable, substantial and probative
evidence on the record considered as a whole.” Tamang v.
MENDOZA-ALVAREZ V. HOLDER 5
Holder, 598 F.3d 1083, 1088 (9th Cir. 2010) (citation
omitted).
III.
To secure withholding of removal, a petitioner must
demonstrate that his “life . . . would be threatened in that
country because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). When there is no past persecution,
a petitioner must show a clear probability of future
persecution. Wakkary v. Holder, 558 F.3d 1049, 1059 (9th
Cir. 2009). “[C]lear probability” means that “it is ‘more
likely than not’ that the petitioner would be subject to
persecution on account of one of the protected grounds.”
Tamang, 598 F.3d at 1091 (quoting INS v. Cardoza-Fonseca,
480 U.S. 421, 429 (1987)). Mendoza-Alvarez must show a
clear probability that he will be subject to persecution
because of his membership in a particular social group.
Mendoza-Alvarez has taken inconsistent positions in
describing the social group that he belonged to that was
allegedly targeted for persecution. Mendoza-Alvarez has
variously described the proposed social group as consisting
of all disabled persons; all insulin-dependent diabetics; and
all insulin-dependent diabetics who suffer from mental
illnesses. The harms that Mendoza-Alvarez asserts are the
result of different additional characteristics that may be
shared by some, but not all, individuals whose conditions or
circumstances may correspond to one or more of these
proposed groups. The additional characteristics are an
inability to work, a lack of medical insurance, and a lack of
money from other sources. These additional characteristics
result in an inability to obtain essential medication, including
6 MENDOZA-ALVAREZ V. HOLDER
insulin, that the Mexican government does not make available
to those who are not insured and cannot pay.
The first problem is that none of the social groups
Mendoza-Alvarez identified is particular. The particularity
requirement looks to “whether a group’s boundaries are so
amorphous that” it cannot be considered a social group.
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir.
2013) (en banc). A social group is particular if it “can
accurately be described in a manner sufficiently distinct that
the group would be recognized . . . as a discrete class of
persons.” Matter of S–E–G–, 24 I. & N. Dec. 579, 584 (BIA
2008). The groups Mendoza-Alvarez proposed, including the
group he proposed before the BIA, include large numbers of
people with different conditions and in different
circumstances. Many individuals in Mexico have serious
chronic health problems, including insulin-dependent diabetes
or mental illness. Individuals may have these conditions
separately or in combination, and in varying degrees of
severity. There is evidence in the record that over half of the
Mexican population lacks health insurance. Those who lack
health insurance must pay for medication that the Mexican
government does not provide for free. Insulin is one of these
medications.
Individuals who need but cannot obtain life-sustaining
medication, including insulin, because of poverty, inability to
work, or lack of insurance are far from a particular, discrete
social group. See Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996)
(“Populations whose only common characteristic is their low
economic status do not form a social group for asylum
MENDOZA-ALVAREZ V. HOLDER 7
purposes.”). Instead, these described groups sweep up a large
and disparate population.1
Substantial evidence supports the BIA’s determination
that Mendoza-Alvarez failed to show that if he returned to
Mexico, he will be persecuted because of his membership in
a particular social group. “The Real ID Act requires that a
protected ground represent ‘one central reason’ for an asylum
applicant’s persecution.” Parussimova v. Mukasey, 555 F.3d
734, 740 (9th Cir. 2009). As noted, many individuals in
Mexico who lack insurance, cannot work, and have no other
sources of money cannot obtain certain medications. That is
true not only for insulin-dependent diabetics (who may also
have mental illnesses), but for many who suffer from grave
illnesses and depend on medications to sustain life. If
someone suffers harm on grounds that are associated with
group membership but also apply to many others, then the
harm is not because of membership in a particular social
group and there is no basis to conclude that the group
members were intentionally targeted. As the BIA and the
courts have recognized, an inadequate healthcare system is
1
See Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46 (9th Cir. 2008)
(holding that “young men in El Salvador resisting gang violence, is too
loosely defined to meet the requirement for particularity”);
Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576–77 (9th Cir. 1986) (holding
that “young, working class, urban males of military age” is not a particular
social group because “[i]ndividuals falling within the parameters of this
sweeping demographic division naturally manifest a plethora of different
lifestyles, varying interests, diverse cultures, and contrary political
leanings”).
8 MENDOZA-ALVAREZ V. HOLDER
not persecution and is not harm inflicted because of
membership in a particular social group.2
IV.
The BIA correctly found that Mendoza-Alvarez failed to
show that he is a member of a particular social group within
the meaning of the Act or that he will be persecuted because
of his membership in a particular social group.
The petition for review is DENIED.
2
See Khan v. Attorney Gen. of U.S., 691 F.3d 488, 499 (3d Cir. 2012)
(“The lack of access to mental health treatment alone, however, does not
create a well-founded fear of persecution.” (citation omitted)); see also
Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011) (finding
that a homosexual asylum applicant had not demonstrated persecution
because a “lack of access to HIV drugs is a problem suffered not only by
homosexuals but by the Mexican population as a whole”);
Ixtlilco-Morales v. Keisler, 507 F.3d 651, 655–56 (8th Cir. 2007) (“The
BIA further concluded that Morales failed to establish that inadequacies
in health care for HIV-positive individuals in Mexico was an attempt to
persecute those with HIV. Our review of the record convinces us that
these conclusions are supported by substantial evidence.”); Raffington v.
INS, 340 F.3d 720, 723 (8th Cir. 2003) (holding that a “medical provider’s
concern and the Pan American Health Organization’s report that Jamaica
devotes limited resources to treating those who are mentally ill do not
establish a pattern of persecution on account of this disability”); Raass v.
INS, 692 F.2d 596, 596 (9th Cir. 1982) (persecution requires more than
“generalized economic disadvantage”).