Vicente-Elias v. Mukasey
| Decision Date | 11 July 2008 |
| Docket Number | No. 07-9545.,No. 07-9542.,07-9542.,07-9545. |
| Citation | 532 F.3d 1086 |
| Parties | Arturo VICENTE-ELIAS, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent. Jaime Vicente-Lopez, Petitioner, v. Michael B. Mukasey, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before McCONNELL, ANDERSON, and BRORBY, Circuit Judges.
Arturo Vicente-Elias and Jaime Vicente-Lopez petition for review of final orders for their removal to Guatemala. These cases involve very similar facts and legal issues and we have elected to resolve them together in a single decision. As explained below, we deny both petitions for review.
Mr. Vicente-Elias applied for asylum, restriction on removal, and relief under the Convention Against Torture (CAT). After an Immigration Judge denied relief, he appealed the first two matters to the Board of Immigration Appeals.1 The BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(4), making the IJ's decision on asylum and restriction on removal the final agency determination for purpose of our review under 8 U.S.C. § 1252(a)(1). Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir.2006). Mr. Vicente-Lopez also unsuccessfully applied for asylum, restriction on removal, and CAT relief, but in his case a BIA member issued an opinion under 8 C.F.R. § 1003.1(e)(5), which serves as the final agency determination, though we may consult the IJ's decision to explicate the BIA's analysis. Uanreroro, 443 F.3d at 1203-04. Mr. Vicente-Lopez has limited his petition for review to the denial of restriction on removal.
Petitioners are of Mayan ancestry and speak the Quiche language, which puts them at an economic disadvantage in Guatemala, where Spanish-speakers refuse to employ native Americans who communicate in indigenous languages. Petitioners' resultant poverty, rather than the imposition or threat of physical harm, underlies their claims for relief from removal. Because both asylum and restriction on removal turn on a showing of persecution, see Wiransane v. Ashcroft, 366 F.3d 889, 892-93 (10th Cir.2004), the standard for determining when economic deprivation rises to the level of persecution is a primary focus of both petitions.
The BIA recently clarified that standard in In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007), issued after the IJ decisions in petitioners' cases but while their administrative appeals were pending. The BIA noted it had at times referred to (1) "deliberate imposition of substantial economic disadvantage," a formulation used by the Ninth Circuit in Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969), and at other times to (2) "economic deprivation or restrictions so severe that they constitute a threat to an individual's life or freedom," a formulation from Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled on other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In re T-Z-, 24 I. & N. Dec. at 170 (internal quotations omitted). The BIA did not reject either formulation in favor of the other. Instead, it reaffirmed a prior decision, Matter of Laipenieks, 18 I. & N. Dec. 433 (BIA 1983), rev'd on other grounds, 750 F.2d 1427 (9th Cir.1985), that had held them to be alternative, rather than mutually exclusive, ways to demonstrate non-physical persecution, finding this dual approach supported by relevant Congressional commentary. In re T-Z-, 24 I. & N. Dec. at 171 (citing H.R.Rep. No. 95-1452, at 5-6, reprinted in 1978 U.S.C.C.A.N. 4700, 4704-05). And, consistent with this legislative source, the BIA revised the Kovac formulation to require a "severe" rather than merely "substantial" economic disadvantage. Id. at 172-73.
It may seem that the Kovac test, which does not require that the economic deprivation necessarily threaten life or freedom, and the Acosta test, which does, are not mutually compatible. See generally Jonathan L. Falkler, Economic Mistreatment as Persecution in Asylum Claims: Towards a Consistent Standard, 2007 U. Chi. Legal F. 471, 484-85 (2007). But the BIA resolved this tension by indicating that these tests naturally apply to different situations; in particular, that the Kovac test can support asylum absent a threat to life or freedom if an alien has suffered a severe loss of an existing economic/vocational advantage:
[T]here may be situations in which, for example, an extraordinarily severe fine or wholesale seizure of assets may be so severe as to amount to persecution, even though the basic necessities of life might still be attainable.... This form of persecution is covered by the "economic disadvantage" test in Kovac ...
....
[An alien] need not demonstrate a total deprivation of livelihood or a total withdrawal of all economic opportunity in order to demonstrate harm amounting to persecution [under] Kovac ... Government sanctions that reduce an applicant to an impoverished existence may amount to persecution even if the victim retains the ability to afford the bare essentials of life. A particularly onerous fine, a large-scale confiscation of property, or a sweeping limitation of opportunities to continue to work in an established profession or business may amount to persecution even though the applicant could otherwise survive.
In re T-Z-, 24 I. & N. Dec. at 171, 173-74; see also id. at 174-75 ().
In sum, In re T-Z- reaffirmed a dual standard for economic deprivation that the BIA had applied, albeit at times unclearly (often under one alternative without explicit acknowledgment of the other), since Matter of Laipenieks. In some situations, the focus is on whether conditions for an alien have been or will be so impoverished as to support a finding of persecution, and Acosta's "threat to life or freedom" test naturally applies; in other situations, the focus is on whether an alien has been or will be subjected to an economic loss that, though sparing the bare essentials of life, nevertheless supports a finding of persecution, and Kovac's "imposition of severe economic disadvantage" test is appropriate.2 With this understanding, we turn to the matters currently under review.3
Mr. Vicente-Elias argues (1) that the IJ used an incorrect legal standard for economic persecution in his case, and (2) that under any standard, even the one used by the IJ, the facts in his case demonstrate persecution. Before getting into more specific points, we note that Mr. Vicente-Elias did not argue on appeal to the BIA that the IJ had used an incorrect legal standard in assessing his claim of economic persecution. Indeed, at that time Mr. Vicente-Elias himself invoked various formulations of that standard without voicing any objection regarding their variability. See Admin. R. at 7-13. In any event, even if his appeal of the IJ's findings on persecution were deemed sufficient to preserve a tacit objection to the underlying standard, that would not avail him here. The IJ clearly applied the Acosta test, see id. at 41,4 which was consistent with In re T-Z- under the circumstances (detailed below) involving general economic disadvantage but no seizure or loss of property, assets, or professional occupation/status that would implicate the Kovac test. Indeed, the BIA summarily affirmed the IJ's decision shortly after issuing its opinion in In re T-Z-. We turn, then, to the application of the Acosta test to the facts in evidence.
Mr. Vicente-Elias testified that he left Guatemala to escape extreme poverty. Admin. R. at 56. Employment opportunities for Quiche speakers were minimal. Id. at 57. Work could sometimes be found within the (poor) indigenous community, id. at 60-61, as his father's experience showed, id. 63-64, but he explained that farther away the (wealthier) Spanish-speaking population "d[id] not allow us to work because they prefer to work with people who speak Spanish." Id. at 57-58; see id. at 74 (). School was not free, so this cycle of linguistic limitation and economic disadvantage perpetuated itself: his Quiche-speaking father could not afford to send him to school and, as a result, he failed to learn the Spanish necessary to gain a foothold in the workplace as well. See id. at 57-58. He was able to find work in his teens when a labor recruiter, who spoke Quiche, would come through his village in a truck and drive men to the coast to clean up and cultivate the land. Id. at 65-66. But pay was less than a dollar a day. Id. at 73-74. Like others in the community, his family also grew some crops, including corn, potatoes, and wheat, id. at 69, and raising animals such as sheep, cows, and chickens brought money for clothes, id. at 70. There were, however, times when there was not enough to eat, id. at 56, or money for clothing, id. at 59, and his family had to rely on home herbal remedies for medical care, id. at 59-60.
There was little testimony about discrimination against indigenous people distinct from the employment problems related to the Quiche-Spanish language barrier. Mr. Vicente-Elias stated that Spanish-speaking people "don't treat [indigenous people] right" and "don't like us," id. at 61, but he did not flesh out these vague generalities with any specific incidents of ill treatment. Indeed, at other points he...
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...85. 86. Temu v. Holder, 740 F.3d 887, 893 (4th Cir. 2014). 87. See, e.g. , T-Z- , 24 I. & N. Dec. at 163; Vicente-Elias v. Mukasey, 532 F.3d 1086, 1089 n.3, 1091 (10th Cir. 2008) (adopting economic persecution test from T-Z- ; however, finding that employment discrimination based on race a......