Lopez–amador v. Holder

• Decision Date: 20 October 2011
• Docket Number: Nos. 10–2376,10–3491.,s. 10–2376
• Citation: 649 F.3d 880
• Parties: Ninoska LOPEZ–AMADOR, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

649 F.3d 880

Ninoska LOPEZ–AMADOR, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 10–2376

10–3491.

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2011.Filed: Aug. 15, 2011.Rehearing and Rehearing En Banc Denied Oct. 20, 2011.

Matthew Lorn Hoppock, argued, North Kansas City, MO, for Petitioner.Puneet Cheema, argued, Richard M. Evans, Assistant Director, Jeffrey J. Bernstein, OIL, U.S. DOJ, Tony West, AAG, on the brief, Washington, DC, for Respondent.Before MELLOY and BENTON, Circuit Judges, and GRITZNER,¹ District Judge.

MELLOY, Circuit Judge.

Ninoska Lopez–Amador petitions for review of a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge's (“IJ”) denial of her applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (“CAT”). She also seeks review of the BIA's denial of her petition to reopen her case based on additional evidence. We deny her petitions.

I. Background

Ms. Lopez is a native and citizen of Venezuela. She was admitted to the United States as a tourist on July 26, 2002. Her tourist visa expired in January 2003, and she applied for and received a six-month visa extension until July 2003. She next applied for a student visa but was denied student status in March 2003. Although the school to which she applied advised her to return to Venezuela at that time, Ms. Lopez remained in the United States beyond July 2003 without authorization.

The government claims it received Ms. Lopez's application for asylum and withholding of removal on November 20, 2003.² On October 22, 2004, Immigration and Customs Enforcement issued a Notice to Appear and charged Ms. Lopez with being removable pursuant to 8 U.S.C. § 1227(a)(1)(B).

Ms. Lopez filed her 2003 application pro se, and she received two continuances to allow her to obtain an attorney. In August 2007, with the assistance of counsel, she submitted a revised application. In the initial 2003 application, which her counsel stated “doesn't make sense as written,” Ms. Lopez alleged sexual orientation as the reason she suffered persecution. She also answered that neither she nor any family member was part of any groups or organizations in her home country. In the 2007 application, however, she answered this question in the affirmative, elaborating that she “always supported” the Democratic Action Party (an anti-Hugo Chavez political group) and that her mother and siblings in Venezuela “favor the ideas” of the party. In this 2007 application, she also alleged primarily that her political affiliations were the basis for persecution. In both her 2003 and 2007 applications, Ms. Lopez checked the “No” box when asked if she was afraid of being subjected to torture in Venezuela.

Ultimately, on October 20, 2008, Ms. Lopez received an evidentiary hearing before an IJ. At the hearing, primarily through her own testimony, Ms. Lopez alleged the following background facts. She holds a master's degree in finance and worked in Caracas as a mid-level executive for a phone company and as a shipment inspector before leaving Venezuela. Through these jobs, she achieved a certain amount of financial success and owns two condominiums in Venezuela. She is unmarried and has no children, but her mother and four siblings remain in Caracas.

According to Ms. Lopez, Venezuela's political and social climate began to change unfavorably in 2001. She alleges personal involvement with the Democratic Action Party since well before that change, beginning in 1995. Her involvement began with helping the needy, but, starting in 2000, she claims she was actively engaged in approximately fifteen demonstrations against the Hugo Chavez regime. The last of these demonstrations occurred on April 11, 2002, and involved thousands of protestors and onlookers throughout Caracas. Ms. Lopez testified that she was caught in the middle of the crowd when soldiers attacked the group with teargas and pellet guns. Snipers shot at those in the street from nearby buildings. Ms. Lopez said people around her were injured and killed and that she subsequently spent five days at home in a state of shock.

In the three months between the April 11 demonstration and Ms. Lopez's departure for the United States, Venezuelan police stopped her vehicle at checkpoints on ten different occasions. She believes she was targeted because officers recognized her car, but she admits other people were also going through checkpoints throughout Caracas and were asked the same questions, including political-affiliation inquiries.

Ms. Lopez continued to work until the end of June 2002. She testified that she left her job in June because government restrictions on business made it difficult for her to obtain clients. She said that she fears economic hardship if returned to Venezuela, noting that the Chavez government has a “one property” policy that would require her to sell one of her two condominiums at an unfavorable price. Ms. Lopez also fears she will be denied government jobs or services in Venezuela if she does not abandon her political convictions. She was, however, able to renew her passport in September 2001, while Chavez was in power. The Chavez government did not try to prevent her from leaving the country. Additionally, Ms. Lopez was able to keep working in Venezuela until she chose to leave her job in June 2002. Ms. Lopez also conceded that other members of her family had not experienced trouble with the authorities because of their beliefs or affiliations. She reported that even her mother, who worked for a Venezuelan supreme court justice with the previous government, had not been persecuted by the Chavez regime.

Ms. Lopez testified that she was persecuted in Venezuela for being a lesbian and fears being harassed or jailed for her sexual orientation if she returns. She reported an incident in Caracas in which she and her lesbian partner were walking in a park when they were verbally ridiculed by a police officer on account of their “immoral” lifestyle.

Ms. Lopez supported her application with documentary evidence, including a 2007 State Department Human Rights Report. This 2007 report indicates that President Chavez has maintained lists of his political opponents who “were often ineligible to receive government jobs or services.” Ms. Lopez testified she did not submit her Democratic Action Party card as evidence because she did not have it.

After hearing the evidence, the IJ issued an oral decision denying Ms. Lopez's applications for relief and ordering her removed to Venezuela. The IJ found the initial application untimely and, in the alternative, denied asylum on the merits. The IJ did not expressly make an adverse credibility ruling, but found Ms. Lopez failed to show she was specifically targeted or physically harmed by the government. The IJ denied withholding of removal for the same substantive reasons and also found that Ms. Lopez did not meet the standard required for relief pursuant to the CAT.

Ms. Lopez appealed the IJ's decision to the BIA, and the BIA affirmed on the same grounds. She then moved to have her case reopened, providing the BIA with new evidence of allegedly worsening circumstances in Venezuela, including many pages of documents that postdate her final hearing. This new evidence included: (1) a letter from the president of the Organization of Venezuelans in Exile (“ORVEX”), verifying Ms. Lopez's membership in the group since 2009 and asserting that the Venezuelan government has access to a list of asylum seekers in the United States; (2) the State Department's 2008 and 2009 Human Rights Reports for Venezuela; and (3) additional articles regarding current events in Venezuela, including an El Nuevo Herald article describing a database of asylum seekers being used to deny passports to those listed and quoting a Venezuelan official bragging about its existence.

The 2009 Human Rights Report for Venezuela states that unknown assailants physically assaulted and threatened opposition leaders in Venezuela. This report also finds that “violence against lesbian, gay, transgender, and bisexual communities reportedly occurred during the year,” and unknown perpetrators killed thirteen transgender individuals in Venezuela between November 2008 and May 2009.

II. Discussion

Ms. Lopez challenges the timeliness determination and the substantive determinations that she is not entitled to asylum, withholding of removal, or relief under the CAT. She also seeks review of the BIA's denial of her motion to reopen. Given our resolution of the other matters, we need not address the issue of timeliness.

A. Asylum and Withholding of Removal

Asylum relief is available if a petitioner proves past persecution or a well-founded fear of persecution on account of one of five protected classes: “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir.2007). We have defined persecution as “the infliction or threat of death, torture, or injury to one's person or freedom for a proscribed reason.” Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th Cir.2004) (internal quotation marks omitted). “Persecution is an extreme concept” that “does not include low-level intimidation and harassment.” Id. To prevail on an asylum claim, the refugee must show evidence of persecution that is sufficiently specific or imminent. Ladyha v. Holder, 588 F.3d 574, 577 (8th Cir.2009). A well-founded fear of persecution is presumed, subject to rebuttal, if the petitioner can establish past persecution; otherwise the individual bears the burden of proving the likelihood of future persecution. 8 C.F.R. § 1208.13(b). To meet this latter burden, the petitioner “ ‘must show the fear is both subjectively genuine and objectively reasonable.’ ” Litvinov v. Holder, 605 F.3d 548, 553 (8th Cir.2010) (quoting Uli v....