Dina Betancourth-Aplicano v. Jefferson Sessions, III

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 15, 2018
• Docket: 17-3995
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0409n.06

No. 17-3995 FILED UNITED STATES COURT OF APPEALS Aug 15, 2018 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

DINA ENEIRA BETANCOURT-APLICANO and ) DOMINIC MONSERRATH LOPEZ- ) BETANCOURT, ) ) Petitioners, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION JEFFERSON B. SESSIONS III, United States ) APPEALS Attorney General, ) ) Respondent. )

BEFORE: BOGGS, CLAY, and ROGERS, Circuit Judges.

BOGGS, Circuit Judge. Two citizens of Honduras, Dina Betancourt-Aplicano and her

minor daughter Dominic Lopez-Betancourt, petition for review of the BIA’s denial of their

applications for asylum and withholding of removal. For the reasons set forth below, we deny the

petition for review.

I

A. Factual Background

Dina Betancourt-Aplicano is a citizen of Honduras. Beginning in January 2012, she earned

a living by selling home-cooked meals door-to-door two or three times per week to her neighbors

and to spectators at local soccer games. She typically traveled by bicycle or foot in the late No. 17-3995, Betancourt-Aplicano v. Sessions

afternoon and returned home between 6:00 p.m. and 8:00 p.m. When she began selling food,

Betancourt-Aplicano was pregnant with her daughter, Dominic Lopez-Betancourt.

In approximately February 2012, two men approached Betancourt-Aplicano on her way

home and demanded that she give them her money. She initially refused, but one of the men

brandished a knife and forcibly took money from her. During the next year-and-a-half, Betancourt-

Aplicano was robbed at knifepoint or gunpoint between eight and twelve times per month, by a

rotating set of two men from a group comprised of approximately ten men.1 Betancourt-Aplicano

was never physically injured, but the robbers would either forcibly take her money or threaten her

if she did not voluntarily turn over her money. Generally, the robbers would take only a portion

of her money.

In May 2012, Betancourt-Aplicano gave birth to her daughter and the robbers occasionally

told Betancourt-Aplicano that they would harm her daughter if Betancourt-Aplicano refused to

surrender the money. As a result, Betancourt-Aplicano enlisted the help of a relative and a friend

to watch her daughter while Betancourt-Aplicano was out selling food. There is no evidence on

the record to suggest that her daughter was ever physically harmed by the robbers. During the

hearing before the immigration judge, Betancourt-Aplicano presented testimony from two

Honduran witnesses, one male and one female, who explained that they were also robbed

periodically.

Betancourt-Aplicano testified that she could have recognized and identified the robbers to

police. However, she chose not to contact the police because she was afraid and believed that the

police would be ineffective.

1 During the proceeding in front of the immigration judge, it appears that Betancourt-Aplicano’s attorney misstated the range as “so, that’s anywhere between eight and twenty-four times a month. Is that correct?” However, Betancourt- Aplicano had testified that she sold food two or three times per week and was robbed almost every time, totaling eight to twelve robberies per month.

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Before she began her food-selling business, Betancourt-Aplicano had been a domestic

employee. She did not receive any sort of threats, nor was she robbed, while employed as a

domestic worker. In addition to her income from selling food, Betancourt-Aplicano also

periodically received money from her daughter’s father.

Betancourt-Aplicano and her daughter arrived in the United States on May 27, 2014

without a valid visa.

A. Procedural Background

On August 13, 2014, the Department of Homeland Security began removal proceedings

against Betancourt-Aplicano and her daughter by filing Notices to Appear. The government

charged them with removability under the Immigration and Nationalization Act (INA)

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being aliens present in the United States without

having been admitted or paroled. Betancourt-Aplicano conceded her removability as charged, but

filed applications for asylum, withholding of removal, and Convention Against Torture (CAT)

protection for herself and her daughter.

Betancourt-Aplicano’s proffered social group was “single unprotected female business

owners out in the community selling food.” The daughter’s proffered social group was being the

child of someone who is being targeted for persecution. On October 19, 2016, the immigration

judge denied the applications for asylum, withholding of removal, and CAT protection.

Betancourt-Aplicano appealed the immigration judge’s decision to the Board of Immigration

Appeals (BIA). The BIA affirmed the IJ’s decision and issued a separate opinion. The BIA held

that Betancourt-Aplicano did not present a cognizable social group that she belonged to and failed

to establish a nexus between the harm that she experienced and her proffered social group. The

BIA assumed, without deciding, that the daughter may fall within a cognizable family-based social

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group but held that she was targeted “as a means of extorting money” from the mother rather than

intrinsically because of her family ties. The BIA held that Betancourt-Aplicano did not carry her

burden to establish that the mistreatment constituted “persecution” because the robbers were not

government actors and she did not prove that the government would have been wholly unwilling

or unable to assist in stopping them. The BIA also held that Betancourt-Aplicano failed to meet

the requirements to establish eligibility for Convention Against Torture protection. Betancourt-

Aplicano filed a petition for review, challenging only the BIA’s determination as to the asylum

and withholding-of-removal claims.

II

Where the BIA reviews the immigration judge’s decision and issues its own opinion, this

court reviews the BIA’s order as the final agency determination. Sanchez-Robles v. Lynch,

808 F.3d 688, 691–92 (6th Cir. 2015). However, if the BIA adopted the immigration judge’s

reasoning on a particular issue, we will also review the immigration judge’s decision. Id. at 692.

This court reviews questions of law de novo and reviews factual determinations under the

highly deferential substantial-evidence standard. Thus, the BIA’s factual determinations are

“conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

III

A. Asylum Claims

The decision whether to grant asylum is discretionary. See INA § 208(b)(1)(A), 8 U.S.C.

§ 1158(b)(1)(A). However, in order to be eligible for asylum, the applicant must establish that she

is a “refugee.” See INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is a person

“who is unable or unwilling to return to [her country] . . . because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a particular social

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group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

Not all social groups are cognizable for the purposes of the INA. The proffered social group

must be “(1) composed of members who share a common immutable characteristic, (2) defined

with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-,

26 I. & N. Dec. 227, 237 (B.I.A. 2014); see Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir.

2015). In order to satisfy the particularity requirement, the group must be discrete and have

definable boundaries. Zaldana Menijar, 812 F.3d at 498. In order to satisfy the social distinction

requirement, the group must be perceived as a group by society, regardless of whether society can

identify the members of the group by sight. Ibid. While the question of whether a proffered social

group is cognizable is ultimately a question of law, Sanchez-Robles, 808 F.3d at 691, the factual

elements underlying that determination—whether the group is based on an immutable

characteristic, whether the group is defined with particularity, and whether the group is socially

distinct—are factual questions reviewed for substantial evidence. See Zaldana Menijar, 812 F.3d

at 498–99.

In addition to proffering a cognizable social group, the applicant must satisfy the nexus

requirement. Applicants must show that membership in the social group or protected class “was

or will be at least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i),

8 U.S.C. § 1158(b)(1)(B)(i); see Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010).

The asylum applicant bears the burden to establish that she meets the definition of a refugee. INA

§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).

i. Betancourt-Aplicano’s Asylum Claim

Betancourt-Aplicano’s proffered social group of “single unprotected female business

owners out in the community selling food” is not cognizable because it is neither immutable nor

socially distinct. Betancourt-Aplicano’s status as a food-selling business owner is not immutable. -5- No. 17-3995, Betancourt-Aplicano v. Sessions

After all, Betancourt-Aplicano previously had a different occupation, working as a domestic

employee, and she did not testify that her current occupation was somehow fundamental to her

identity. See Castro-Paz v. Holder, 375 F. App’x 586, 590 (6th Cir. 2010) (holding that the

proffered social group “lack[ed] an immutable characteristic because [he] could change jobs and

the concept of a refugee simply does not guarantee an individual a right to work in the job of his

choice” (internal quotation marks omitted)). In her brief, Betancourt-Aplicano argues that it would

be “virtually impossible” for her to change occupations because of her limited education and the

low income she is likely to earn as a domestic employee. However, the evidence submitted by

Betancourt-Aplicano does not compel the conclusion that it is virtually impossible for her to find

alternative work.

Second, Betancourt-Aplicano did not provide any evidence that the category of “single

unprotected female business owners out in the community selling food” is recognized in Honduras

as somehow “set apart, or distinct, from other persons within the society in some significant way.”

See Matter of M-E-V-G-, 26 I. & N. Dec. at 238. Instead, substantial evidence supports the

conclusion that opportunistic robbers target anyone with wealth and that the robbers do not treat

this proffered group as being distinct. Betancourt-Aplicano conceded as much when she testified

that she believed that the robbers broadly target people who “work[]” or “people [the robbers] have

felt are doing well.” Betancourt-Aplicano argues that it is a “fair inference” from the testimony

that these gangs target women more frequently in order to bolster the gang members’ feeling of

“machismo.” However, that does not compel the conclusion that the category of “single

unprotected female business owners out in the community selling food” is socially distinct.

Substantial evidence supports the BIA’s conclusions that Betancourt-Aplicano’s proffered

social group was neither immutable nor socially distinct. As in similar Sixth Circuit cases,

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Betancourt-Aplicano’s proffered social group is not cognizable under the INA. An applicant’s

perceived wealth or access to money does not constitute membership in a cognizable social group.

See Sanchez-Robles, 808 F.3d at 692 (rejecting a claimed social group of “persons who are

perceived to have money or access to money due to having spent a significant amount of time in

and having familial ties to the United States”). And more specifically, this court has held that a

social group defined as “upwardly mobile women trying to build a better life through business” is

not cognizable. Mendez v. Sessions No. 17-3148, 2017 U.S. App. LEXIS 22256, at *1 (6th Cir.

Nov. 6, 2017).

Betancourt-Aplicano attempts to distinguish these cases by arguing that her claimed social

group is more narrowly drawn than the above examples and by emphasizing that the IJ found her

testimony to be credible. However, while “upwardly mobile women trying to build a better life

through business” (which failed in Mendez) may technically be broader than Betancourt-

Aplicano’s “single unprotected female business owners out in the community selling food,” this

appears to be a distinction without a difference. That Betancourt-Aplicano’s proffered social

group is more narrowly defined than groups that this court has previously rejected does not mean

that this group is cognizable. In neither case did the applicant carry the burden of establishing that

the proffered group was socially distinct. And that the IJ concluded that Betancourt-Aplicano was

sincere about the mistreatment that she endured does not relate to the question of her membership

in a cognizable social group.

Because Betancourt-Aplicano has failed to proffer a cognizable social group, she failed to

meet her burden to establish eligibility for asylum.

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ii. The Asylum Claim of Betancourt-Aplicano’s Daughter

The proffered social group for Betancourt-Aplicano’s daughter’s application was the

daughter or relative of someone who is being targeted for persecution. The BIA did not analyze

whether this group would satisfy the immutability requirement (which of course it would), the

particularity requirement, and the social distinctiveness requirement to be a cognizable social

group. Instead, the BIA assumed without deciding that Betancourt-Aplicano’s minor daughter

could conceivably fall within a family-based social group as a member of the Betancourt-Aplicano

family. [[AR at 5]] See Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009). But even so,

the BIA concluded that the daughter failed to satisfy the nexus requirement.

Substantial evidence supports the BIA’s conclusion that the daughter was inferentially

threatened by the robbers merely as a “means of extorting money” from Betancourt-Aplicano. The

daughter’s name was only ever mentioned in conjunction with the robbers’ demands for money

from Betancourt-Aplicano. And where threats made against a family member are simply “a means

to achieve the [robbers’] objective to increase [their] profits,” there is no nexus. Matter Of L-E-

A-, 27 I. & N. Dec. 40, 46–47 (B.I.A. 2017). Thus, even if Betancourt-Aplicano’s daughter offered

a cognizable family-based social group, she failed to satisfy the nexus requirement to establish

eligibility for asylum.

The lack of a cognizable social group in Betancourt-Aplicano’s application and the failure

to demonstrate a nexus in the minor daughter’s application are dispositive of their asylum

applications. As a result, we decline to analyze whether the mistreatment committed by private

actors, without Betancourt-Aplicano ever seeking police or government assistance, qualifies as

“persecution,” in light of the requirement that persecution be perpetrated by the government or by

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a group that the government is unable or unwilling to control. See Khalili v. Holder, 557 F.3d 429,

436 (6th Cir. 2009).

B. Withholding of Removal Claims

A withholding-of-removal claim is analyzed similarly to an asylum claim but requires the

applicant to meet a more stringent standard. See Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009).

The applicant bears the burden of demonstrating that it is more likely than not that her “life or

freedom would be threatened” because of her race, religion, nationality, membership in a particular

social group, or political opinion, if she returned to her home country. Ibid.; see INA §

241(b)(3)(A), 8 U.S.C. §1231(b)(3)(A)). We have interpreted the “life or freedom would be

threatened” language to require that the applicant demonstrate that he or she will be persecuted.

See Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006).

Because Betancourt-Aplicano’s claimed social group is not cognizable, her withholding-

of-removal claim necessarily fails. Similarly, for the reasons described above, the daughter has

not established that it is more likely than not that she would be persecuted because of her proffered

social group.

CONCLUSION

For the foregoing reasons, we DENY the petition for review.

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