Irlis Maheli Lopez Barrios v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 6, 2019
• Docket: 18-12756
• Status: Unpublished

Opinion

Case: 18-12756 Date Filed: 09/06/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12756 Non-Argument Calendar ________________________

Agency No. A206-730-222

IRLIS MAHELI LOPEZ BARRIOS, ONEYBER JOSUE DE LEON-LOPEZ,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 6, 2019)

Before JORDAN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: Case: 18-12756 Date Filed: 09/06/2019 Page: 2 of 11

Irlis Maheli Lopez Barrios and her young son, Oneyber Josue De Leon-Lopez,

are natives and citizens of Guatemala. The Board of Immigration Appeals denied

their application for asylum and they petition for review of that decision.

Ms. Lopez Barrios and Mr. Leon-Lopez claim that the BIA failed to review

the total information presented to the immigration judge purportedly proving that

they are in fear of violence and future persecution in Guatemala, and thus failed to

render a reasoned decision in their case. They also challenge the BIA’s classification

of Ms. Lopez Barrios’ group as “rural area women in Guatemala with cognitive

disabilities” instead of the more general social group “individuals with cognitive

disabilities.” After a thorough review of the record and the parties’ briefs, we deny

the petition in part and dismiss in part.

I

Ms. Lopez Barrios and her 10-year-old son were apprehended in Hidalgo,

Texas and charged as removable under the Immigration and National Act, see 8

U.S.C. § 212(a)(6)(A)(i). Ms. Lopez Barrios filed for asylum on behalf of herself

and her son. She attached a supporting affidavit to her form, which included a

neuropsychological evaluation that reported her as having a “full scale IQ of 53” and

“classifying her performance within the Extremely Low range of functioning.” AR

at 437.

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Before her hearing, the IJ asked Ms. Lopez Barrios’ counsel whether he was

concerned about her ability to assist in presenting the case. Ms. Lopez Barrios’

attorney answered that, while there had been difficulties, “I would say in general I

feel like she has assisted.” Id. at 109. The IJ asked whether a competency hearing

should be held, and her attorney declined, noting that the IJ should instead “take into

account” her intellectual deficiencies when evaluating her testimony. Id. The IJ also

asked whether Ms. Lopez Barrios had a definition of the particular social group of

which she claimed to be a member. Her attorney responded, “women living in rural

areas in Guatemala who suffer from cognitive disability.” Id. at 40.

Ms. Lopez Barrios testified that she was born in a rural town near San Marcos,

Guatemala. She went to school, but did not finish. It was very difficult for her to

understand what was being taught and she stopped going to school when she was 15

years old, without completing the fifth grade. She testified that her parents moved

to the United States, and she lived with her grandparents. After she dropped out of

school, Ms. Lopez Barrios worked cleaning houses for those members. She did not

seek work beyond the homes of her family members because she heard about “a lot

of evil things” like “rapes and murders and other things,” though she was never a

victim of any violence. Id. at 127.

Ms. Lopez Barrios came to the United States because her son was having

health problems. Her home in Guatemala was far away from medical care, and she

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could not afford to move away from her grandparents. After arriving in the United

States, Ms. Lopez Barrios found work cleaning. She was fearful of returning to

Guatemala because she would have to stay with her grandparents (who are now

unable to support her), she gets sick a lot (the doctors are far away), and she fears

the violent crime she heard about. Finally, she testified that she has not attempted

to get assistance in Guatemala for her learning difficulties, and that her difficulty in

learning has not caused her other problems.

In addition to her testimony, Ms. Lopez Barrios filed several reports to

substantiate her asylum claim, including a Guatemala National Disability Study, a

United Nations Committee on the Rights of Persons with Disabilities in Guatemala

report, a Transition Foundations study, and her neuropsychological evaluation. As

summarized by her attorney, these reports “show[ ] that individuals in Guatemala

who have disabilities suffer from discrimination, societal discrimination, that results

in a series of negative life circumstances” including access to jobs, political

participation, healthcare, and education. Id. at 143–44.

The IJ rendered an oral decision denying asylum to Ms. Lopez Barrios and

her son. After reviewing “all of the documents in the record,” including the

“numerous country conditions documents,” letters from friends, and Ms. Lopez

Barrios’ declaration, the IJ concluded that—although her testimony was credible—

she did not have a well-founded fear of future persecution based on a statutorily-

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protected ground. Ms. Lopez Barrios testified that neither she nor her family had

ever been personally threatened by violence, so she did not have an objective fear of

future harm. The IJ recognized that Ms. Barrios’ cognitive disability is an

immutable characteristic, but concluded that her status as a resident in a rural area is

not. And she had not established that she was unable to move away from her rural

home to seek work in a larger city.

Ms. Lopez Barrios appealed the IJ’s decision to the BIA, which also denied

her application for asylum. Because she did not contest the IJ’s finding that she had

not experienced past persecution in Guatemala, the BIA considered the issue waived.

The BIA also agreed with the IJ’s conclusion that she had not established a well-

founded fear of future persecution on account of her cognitive disability, as opposed

to fear of random crime in Guatemala. Assuming that her stated social group was

viable for asylum under the INA, the IJ also did not err in concluding that Ms. Lopez

Barrios failed to show that she could not move away from a rural area. Ms. Lopez

Barrios then sought review here.

II

The BIA issued its own opinion and relied on the IJ’s decision and reasoning.

We therefore “review the IJ’s opinion, to the extent that the BIA found that the IJ’s

reasons were supported by the record,” and we “review the BIA’s decision, with

regard to those matters on which it rendered its own opinion and reasoning.” Tang

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v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). We apply the substantial

evidence test to the BIA’s factual determinations. See Al Najjar v. Ashcroft, 257

F.3d 1262, 1283 (11th Cir. 2001). Under that test, we view “the record evidence in

the light most favorable to the . . . decision and draw all reasonable inferences in

favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)

(en banc).

The BIA and the IJ “must consider all evidence introduced by the applicant,”

but where the BIA “has given reasoned consideration to the petition, and made

adequate findings, we will not require that it address specifically each claim the

petitioner made or each piece of evidence the petitioner presented.” Tan v. U.S. Att’y

Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (citation and internal quotations

omitted). We may reverse the IJ’s findings “only when the record compels a

reversal; the mere fact that the record may support a contrary conclusion is not

enough.” Al Najjar, 257 F.3d at 1283.

Ms. Lopez Barrios argues that the BIA failed to reasonably consider the record

as a whole because its decision did not address the documentary evidence provided

to the IJ and on appeal, which she believes shows that people with cognitive

disabilities face “economic disadvantages which rise to persecution.” Appellant’s

Br. at 9. We conclude that substantial evidence supports the BIA’s conclusion that

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Ms. Lopez Barrios did not demonstrate eligibility for asylum because her fear of

future persecution was not objectively reasonable.

The IJ noted the numerous documents and country condition studies that Ms.

Lopez Barrios included with her asylum petition. But the IJ found that such

information did not outweigh Ms. Lopez Barrios’ testimony that she had not tried to

find work outside of her hometown, since she presumably could move away with

the help of her family. She also testified that she had never personally been the

subject of discrimination or violence because of her cognitive disability. When

asked why she had not moved away from her grandparent’s home in a small town to

find work elsewhere, she said that she feared the crime she heard about. The IJ acted

reasonably in weighing this evidence and concluding that Ms. Lopez Barrios did not

have an objective fear of future persecution based on her cognitive disability. The

BIA’s decision on appeal recounts the IJ’s reasoning and concludes that the IJ did

not err. The BIA agreed that Ms. Lopez Barrios’ testimony supported a fear of

“random crime” and not a fear based on a protected ground. See AR at 4.

The record on appeal does not compel reversal. Although the BIA did not

specifically reference Ms. Lopez Barrios’ country reports, we do not require the BIA

to “address specifically each claim the petitioner made or each piece of evidence the

petitioner presented.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).

The BIA’s decision reflects a reasoned decision that balances the country reports

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and Ms. Lopez Barrios’ testimony. Thus, we affirm the BIA’s denial of her

application for asylum.

Ms. Lopez Barrios also challenges the IJ’s decision not to conduct a

competency hearing given that her neuropsychological evaluation showed a

cognitive disability. Ms. Lopez Barrios argues that, had the IJ performed a

competency hearing and implemented certain safeguards—like having Ms. Lopez

Barrios’ husband testify on her behalf and waiving her appearance—she would have

been able “to more accurately articulate her fear of future persecution.” Appellant’s

Br. at 12–13. Ms. Lopez Barrios points to the BIA’s decision in Matter of M-A-M-,

25 I. & N. Dec. 474, 474 (BIA 2011), which requires IJs, when there “are indicia of

incompetency,” to “make further inquir[ies] to determine whether the alien is

competent for purposes of immigration proceedings.”

The record shows that the IJ recognized that the neuropsychological exam

showed that Ms. Lopez Barrios had a cognitive disability. The IJ asked her attorney

whether a competency hearing was required, and whether any safeguards should be

put in place. Her attorney informed the IJ that, although there were difficulties, they

had been able to confer and prepare for the hearing. Her attorney also rejected a

competency hearing or any further safeguards. Given the position taken by counsel

for Ms. Lopez Barrios, there is no basis for vacatur.

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III

Ms. Lopez Barrios also argues that the BIA misclassified the particular social

group she identified with as a basis for asylum. Her social group should have been

“individuals with cognitive disabilities” rather than “women who live in rural areas

of Guatemala and have cognitive disabilities.” Appellant’s Br. at 14.

An applicant for asylum bears the burden of proving that she is a “refugee”

within the INA’s meaning of the term. See Chen v. U.S. Att’y Gen., 463 F.3d 1228,

1231 (11th Cir. 2006). The INA defines a “refugee” as

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). “[A]n applicant can prove refugee status by presenting

specific and credible evidence of either past persecution or fear of future persecution

on account of race, religion, nationality, membership in a particular social group, or

political opinion.” Sanchez Jimenez v. U.S. Atty. Gen., 492 F.3d 1223, 1232 (11th

Cir. 2007) (quotations omitted).

To establish fear of future persecution, the applicant must show “(1) a

subjectively genuine and objectively reasonable fear of persecution that is (2) on

account of a protected ground,” such as a particular social group. Silva v. U.S. Att’y

Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). We defer to the BIA’s legal definition 9 Case: 18-12756 Date Filed: 09/06/2019 Page: 10 of 11

of a “particular social group.” See Castillo-Arias v. U.S. Atty. Gen., 446 F.3d 1190,

1196 (11th Cir. 2006). As the BIA has explained, a member of a particular social

group is someone who “share[s a] characteristic . . . such as sex, color, or kinship

ties, or in some circumstances . . . a shared past experience such as former military

leadership or land ownership.” Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985).

The characteristic “must be one that the members of the group either cannot change,

or should not be required to change because it is fundamental to their individual

identities or consciences.” Id.

Ms. Lopez Barrios did not assert the reformulation of her particular social

group before the BIA, so we lack jurisdiction to review it. See Amaya-Artunduaga,

463 F.3d at 1250–51. When Ms. Lopez Barrios filed her I-589 form, she indicated

that she was applying for asylum based on being a member of a particular social

group, but she did not describe the group. At the hearing, the IJ asked Ms. Lopez

Barrios’ attorney how he would define her particular social group, to which he

responded “women living in rural areas in Guatemala who suffer from cognitive

disability.” AR at 115. On appeal to the BIA, Ms. Lopez Barrios’ attorney did not

correct this description of her particular social group, and the brief includes

arguments supporting the rural component of her brief. See e.g., AR at 13

(“Disability in Guatemala, especially in rural areas, is a source of impoverishment

for both disabled people and their families.”). Because Ms. Lopez Barrios did not

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present her argument that the IJ misclassified her social group to the BIA, we lack

jurisdiction to review it. Accordingly, we dismiss this part of her petition for lack

of jurisdiction.

IV

For the foregoing reasons, we deny in part and dismiss in part the petition of

Ms. Lopez Barrios and her son.

PETITION DENIED IN PART AND DISMISSED IN PART.