Martinez-Perez v. Sessions
Opinion
Petitioner Blanca Lidia Martínez-Pérez (Martínez-Pérez) seeks judicial review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of her applications for asylum, withholding of removal, and withholding of removal under the Convention Against Torture (CAT). Martínez-Pérez argues that the BIA erred by affirming the Immigration Judge's (IJ) conclusion that she did not qualify for asylum, withholding of removal, or any other *37 basis for relief based on her mistreatment in Honduras because of her Afro-Honduran race and physical disability caused by polio, and furthermore that the IJ violated her due process rights. Before looking at the challenges Martínez-Pérez has raised here, we will run through the circumstances of Martínez-Pérez's journey to the United States, her life in Honduras and the circumstances that led her to come to the United States, and the prior proceedings that brought her before this court. 1
A. BACKGROUND
1. Facts and Circumstances
Martínez-Pérez was born in 1976 in Honduras. By the age of one she was diagnosed with polio, after which her mother gave Martínez-Pérez to her uncle, who in turn left her at an orphanage in Tegucigalpa, the capital of Honduras. Because of her childhood polio, Martínez-Pérez walks with a limp. She was harassed by staff and other children in the orphanage throughout her entire childhood, and was sometimes called names relating to her disability. She dropped out of school after the sixth grade.
Martínez-Pérez ultimately left the orphanage at age eighteen and moved to a town called Sambo Creek, about six hours north of Tegucigalpa. Tegucigalpa and Sambo Creek are the only two places Martínez-Pérez lived in Honduras. As an adult, Martínez-Pérez continued to experience general mistreatment based on her disability and race. She recalled being verbally harassed by strangers on the street. She also had difficulty finding a job, and supported herself by working as a babysitter for a friend. After three incidents in 2014 in which she heard someone threaten her life, had a bottle thrown at her, and survived a home invasion, all of which we'll get to later, Martínez-Pérez decided to leave Honduras and travel to the United States.
Martínez-Pérez entered the United States on foot, having broken her foot in transit, near Brownsville, Texas, on or about June 7, 2014. While in custody, she received medical attention for her foot and an asylum officer conducted a credible fear interview with her for her asylum claim, finding that there was a significant possibility that she could prevail on an asylum claim at a full hearing. She remained in custody and was transferred to Louisiana, where she was served with a notice to appear on July 23, 2014, which began the removal proceedings against her. She was then released on bond in August 2014. Between 2014 and 2016, when Martínez-Pérez ultimately was able to secure counsel and have a hearing on her application for asylum, the case was continued multiple times and ultimately venue was transferred from Louisiana to Boston. 2
2. The IJ Hearing
At her asylum hearing before the IJ, Martínez-Pérez's claims for (i) asylum, (ii) withholding of removal, and (iii) withholding of removal under the CAT were principally supported by her testimony about three experiences of harassment or threat of assault that she argued were past persecution, and thus also supported her well-founded fear of future persecution if she *38 returned to Honduras. 3 First, Martínez-Pérez described an incident in February 2014 when a stranger broke into her room at night. The intruder tried to attack her but ran away when she screamed. She believes the intruder targeted her and wanted to sexually assault her because of her disability. The intruder never spoke to her. Because she was afraid that the intruder would come back, or hurt her when released from custody, she did not file a complaint with the police.
The last two incidents relate to a single person, a man named Charlie who harassed her on multiple occasions in Sambo Creek. She encountered Charlie once a month over the course of a year. For the most part, Charlie made offensive comments about Martínez-Pérez's limp. But one time, Charlie escalated by threatening to throw her off a bridge, but said he wouldn't because she was carrying her friend's baby. Another time in April 2014, he physically threatened her, throwing a bottle at her that hit her feet and calling her "renca," which means "gimp." Martínez-Pérez described this as the reason she left Honduras, leaving for the United States a few weeks later.
At the end of the hearing, the IJ issued an oral decision denying Martínez-Pérez's asylum claim. Despite finding her testimony "credible" and "truthful," and her case "extremely sympathetic," the IJ found that Martínez-Pérez had failed to carry her burden in proving either past persecution or a well-founded fear of future persecution. In particular, the IJ found that the three more serious instances of threats and physical danger Martínez-Pérez testified about did not rise to the level of past persecution. As for well-founded fear of future persecution, though the IJ found her credible, and thus credited her subjective fear in returning to Honduras, the IJ found that the threats she faced were from a single person, and therefore did not "present a likelihood of persecution if she returned." Under the same reasoning, the IJ rejected her claims for withholding of removal and protection under the CAT.
3. Appeal to BIA
Martínez-Pérez then appealed to the BIA, which affirmed the IJ's decision to deny her claims for asylum and withholding of removal. The BIA agreed with the IJ that the evidence Martínez-Pérez presented was not serious enough to "rise[ ] to the level of past persecution." For the same reason, the BIA also agreed with the IJ's conclusion that the mistreatment and harassment she faced did not rise to the level of a well-founded fear of future persecution. 4 Because she could not satisfy this lesser asylum burden, the BIA agreed that it necessarily followed that she had not satisfied the higher burden for withholding of removal.
This petition for judicial review ensued. Jurisdiction of this court is pursuant to
B. DISCUSSION
On appeal, Martínez-Pérez makes three arguments. First, she contends that the IJ and BIA erred by failing to find that she had suffered past persecution, thus entitling her to a rebuttable presumption of a
*39
well-founded fear of future persecution.
See
1. Standard of Review
When the BIA "adopts portions of the IJ's findings while adding its own gloss," as it did here, "we review both the IJ's and the BIA's decisions as a unit."
Paiz-Morales
v.
Lynch
,
2. Asylum
To qualify for asylum, an applicant must " 'demonstrate a well-founded fear of persecution on one of five protected grounds'-race, religion, nationality, political opinion or membership in a particular social group."
Paiz-Morales
,
If the applicant establishes past persecution, there is "a rebuttable presumption of a well-founded fear of future persecution."
In this case, Martínez-Pérez argues that the BIA erred in affirming the IJ's conclusion that she had not demonstrated either past persecution or a well-founded fear of persecution. The BIA and IJ rejected Martínez-Pérez's past and future persecution arguments because the harassment she endured in Honduras did not rise to the level of persecution. While we too find petitioner's plight extremely sympathetic, we must nevertheless agree with the BIA's and IJ's assessments.
a. Past Persecution
An applicant for asylum " 'bears a heavy burden,' and faces a 'daunting task' in establishing subjection to past persecution."
Vasili
v.
Holder
,
The three incidents Martínez-Pérez pointed to as evidence of past persecution-the single death threat and bottle-throw from Charlie, and the home invasion by an unknown assailant-while undoubtedly scary, do not compel us to find they were serious enough to constitute persecution.
5
We have upheld BIA decisions concluding that even more frequent and more serious experiences than the ones endured here were insufficient to show past persecution.
6
See
Attia
, 477 F.3d at 23-24 (finding no persecution where the applicant was beaten twice over a nine year period and experienced a "general climate of discrimination");
Topalli
v.
Gonzales
,
*41
Bocova
v.
Gonzales
,
b. Future Persecution
As we explained before, even though there was substantial evidence supporting the BIA's and IJ's conclusions that Martínez-Pérez had not shown past persecution, she can still make out an asylum claim based on a well-founded fear of future persecution if she can satisfy a two-part inquiry that "she genuinely fears future persecution and that her fears are objectively reasonable."
Carvalho-Frois
,
3. Humanitarian Asylum
Martínez-Pérez alternatively argues that the BIA erred by failing to consider her claim for humanitarian asylum. 8 The government contends that this argument was waived because Martínez-Pérez *42 did not argue it specifically before the IJ. But even if it is not waived, the government argues that for the same reasons Martínez-Pérez's evidence was insufficient in the asylum context, so shall it be in the humanitarian asylum context. On this second point, we agree with the government.
First, we do not find that, because it wasn't specifically raised before the IJ, this argument was waived. As we have previously held, where the applicant "has consistently asserted eligibility for asylum based on [ ] past harm" based on the same protected grounds she now claims for humanitarian asylum, the applicant need not "explicitly request[ ] [humanitarian asylum] from the IJ apart from [her] overall past-persecution-based asylum claim."
Ordonez-Quino
v.
Holder
,
But this is the end of the good news for Martínez-Pérez. So-called "humanitarian asylum" provides that an applicant who has shown past persecution but failed to show a well-founded fear of future persecution can still be granted asylum if "(A) [t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or (B) [t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal...."
4. Due Process
Finally, Martínez-Pérez argues that the IJ's failure to consider all of her supporting evidence, namely, the aforementioned country-condition evidence, and its use of inapplicable case law violated her due process rights. Martínez-Pérez did not raise this argument before the BIA and thus has "failed to exhaust [her] administrative remedies on that issue, and we consequently lack jurisdiction to review the claim." Sunoto , 504 F.3d at 59.
C. CONCLUSION
For the foregoing reasons, we deny the petition for judicial review.
These facts are drawn from the administrative record, including Martínez-Pérez's hearing testimony, which the IJ found credible.
Not at issue in this appeal, counsel for Martínez-Pérez before the BIA represented that there were several continuances "due to the Immigration Judge's scheduling issues," before ultimately venue was transferred from New Orleans to Boston on April 22, 2015.
Martínez-Pérez also submitted several "country condition" documents as exhibits at her asylum hearing that described disabled people and people of Afro-Honduran descent as subject to discrimination, especially in employment, housing, and public services access, as well as the overall poor state of healthcare access and quality in Honduras.
Neither the IJ nor the BIA reached other elements of past or future persecution in denying her claims.
While Martínez-Pérez also argues that the BIA and IJ erred by failing to explicitly consider the country-conditions evidence she submitted, we need not consider that evidence in the mix of Martínez-Pérez's persecution argument for three reasons. First, Martínez-Pérez develops no specific arguments about what alleged persecution these country conditions would support, or why, and instead cites generally to the entire seventy-four pages of country-condition evidence. Without more, such an argument is insufficiently developed, and thus waived.
See
United States
v.
Sevilla-Oyola
,
Martínez-Pérez alternatively argues, by comparison, that domestic violence victims have shown persecution in support of an asylum claim based on the violence or threats of a single tormentor, e.g., a spouse. This argument does not factor into our review of the BIA's decision for two reasons. First, this theory was not raised before the IJ or BIA, and is therefore waived due to lack of administrative exhaustion.
See
Sunoto
v.
Gonzales
,
Even if we were to peek into the other elements of past persecution, Martínez-Pérez fares no better. First, Martínez-Pérez has drawn no connection between any of the incidents and government action or inaction. At most, she assumes that even if she had complained to authorities, they would not have done anything due to the general discrimination towards disabled and Afro-Honduran people in Honduras. We have held that the nexus cannot be shown by "no more than a guess."
López-Castro
,
Having failed to argue in her opening brief any error in either the BIA's denial of her claim for withholding of removal, or its silence on the IJ's denial of her claim for withholding of removal under the CAT, we deem these arguments waived.
Reference
- Full Case Name
- Blanca Lidia MARTÍNEZ-PÉREZ, Petitioner, v. Jefferson B. SESSIONS, III, United States Attorney General, Respondent.
- Cited By
- 26 cases
- Status
- Published