Sosa-Perez v. Sessions

• Decision Date: 28 February 2018
• Docket Number: No. 17-1304,17-1304
• Citation: 884 F.3d 74
• Parties: Wendy Carolina SOSA-PEREZ, Christhian Jassell Diaz-Sosa, Emir Fabrizio Diaz-Sosa, Petitioners, v. Jefferson B. SESSIONS, III, Respondent.
• Court: U.S. Court of Appeals — First Circuit

884 F.3d 74

Wendy Carolina SOSA-PEREZ, Christhian Jassell Diaz-Sosa, Emir Fabrizio Diaz-Sosa, Petitioners,

v.Jefferson B. SESSIONS, III, Respondent.

No. 17-1304

United States Court of Appeals, First Circuit.

February 28, 2018

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.

Before Barron, Selya, and Stahl, Circuit Judges.

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. 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 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).

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 [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 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 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...