Bonilla-Morales v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0174p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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FRANCISCA BONILLA-MORALES,

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Petitioner,

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No. 09-3676

v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A094 922 953.

Decided and Filed: June 15, 2010

Before: DAUGHTREY, GILMAN, and SUTTON, Circuit Judges.

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COUNSEL

ON BRIEF: Jamie B. Naini, THE LAW OFFICES OF JAMIE B. NAINI, Bartlett,

Tennessee, for Petitioner. Anthony P. Nicastro, Ernesto H. Molina, Jr., UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Francisca Bonilla-Morales, a 57-year-old

native of Honduras, requests review of a decision by the Board of Immigration Appeals

(BIA) that denied her application for asylum, the withholding of removal, and protection

under the United Nation’s Convention Against Torture (CAT). She seeks asylum based on

alleged past persecution and a fear of future persecution by the MS-13 gang in Honduras.

In addition, she claims that she will be tortured by her brother-in-law, a policeman in the

Honduran military, if she returns to Honduras. For the reasons set forth below, we DENY

the petition for review.

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I. BACKGROUND

A. Factual background

The following facts are based on Bonilla-Morales’s testimony at her hearing before

an immigration judge (IJ) in November 2008. Bonilla-Morales was born in Honduras in

November 1952. She has five children, one of whom currently lives with her in Memphis,

Tennessee. Her other four children continue to live in Honduras. In 1973, she was widowed

when members of the MS-13 gang shot and killed her husband in Honduras. According to

the U.S. State Department, the gang likely originated in the 1980s and 1990s “among

marginalized Mexican and Salvadoran immigrant youths living in the slums of Los Angeles,

California.” The MS-13 and Mara 18 gangs are the two most widely known Central

American gangs.

When Bonilla-Morales was 13 years old, her unnamed brother-in-law, allegedly a

policeman in the Honduran military, tried to rape her. (Bonilla-Morales’s appellate brief

repeatedly asserts that he was a “high-ranking” police officer in the military, but the record

contains no corroboration of this assertion.) Sometime later, when Bonilla-Morales was at

a grocery store, her brother-in-law allegedly sent at least two policemen to forcefully take

her from the store to a house outside the city. She was held there for five days, tied up,

blindfolded, and repeatedly raped.

Bonilla-Morales’s brother-in-law again kidnaped and raped her in 2004. He detained

her for one day, during which he hit her hand and foot so hard that they fractured, forcing

her to wear a cast on her foot. Bonilla-Morales subsequently moved to another area in

Honduras, but her brother-in-law was able to locate her there. He did not harm her,

however, because “there were other people” there.

One of Bonilla-Morales’s sons was shot by the MS-13 gang in either 2003 or 2004.

He was shot six times in his right side, hospitalized for over three months, and remains under

treatment because one of his lungs was damaged during the shooting. The gang members

told him that they “were the ones who killed his father,” and they threatened to kill everyone

in his family. In mid-2008, one of Bonilla-Morales’s other sons was “bumped by a car, a

motorcycle” driven by a gang member.

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When Bonilla-Morales was living in Honduras, members of the gang demanded

money from her every month, and she testified that the members of the gang would have

killed her if she had not complied. The gang also attempted to recruit her oldest grandchild,

Carlos, beginning in 2006. At one point, gang members broke into Bonilla-Morales’s home,

pointed guns at the family members, and took Carlos with them. They told him that they

would rape his sister if he did not join. Carlos was eventually able to leave the gang’s

control and return back home.

Bonilla-Morales testified that she entered the United States without documentation

in December 2006 with three of her grandchildren, one of whom was Carlos. She decided

to leave Honduras because the MS-13 gang was attempting to recruit him. When she was

interviewed by U.S. border officials, she stated that although she feared the gangs in

Honduras, she did not ultimately fear returning to the country.

B. Procedural history

In February 2007, the government initiated removal proceedings against Bonilla-

Morales. She conceded removability, but applied for asylum, the withholding of removal,

and protection under the CAT. The IJ held a merits hearing on November 21, 2008, where

Bonilla-Morales and three of her grandchildren testified. That same day, the IJ issued an

oral decision denying all relief. The IJ first found that Bonilla-Morales lacked credibility

because (1) she never told the border officials about any mistreatment by her brother-in-law,

and told them that she was not afraid to return to Honduras; (2) she claimed that her husband

was killed in 1973 by a gang that did not even exist until the 1980s or 1990s; and (3) her

testimony was inconsistent regarding dates of the mistreatment allegedly suffered by her and

her family.

Nonetheless, the IJ alternatively found that even if Bonilla-Morales’s testimony were

credible, her claims were without merit. The IJ first found that she had not established

eligibility for asylum because the alleged harm suffered by her and her family in Honduras

was not on account of any protected ground. Next, the IJ concluded that Bonilla-Morales

did not qualify for protection under the CAT because she presented no evidence that the

government was willfully blind to the criminal conduct of her brother-in-law.

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In May 2009, the BIA dismissed Bonilla-Morales’s appeal with regard to her claims

for asylum and the withholding of removal, reasoning that even if Bonilla-Morales were

credible, she had not established a nexus between her alleged persecution in Honduras and

one of the five protected grounds under the Immigration and Nationality Act (INA). The

BIA also found that “the record does not indicate that it is more likely than not that [Bonilla-

Morales] will face torture . . . upon return to Honduras,” and it thus denied her CAT claim.

Bonilla-Morales has timely appealed.

II. ANALYSIS

A. Standard of review

We review the factual determinations of the IJ and the BIA under the “substantial

evidence test.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). Under this standard, we

will not reverse a factual determination unless we find “that the evidence not only supports

a contrary conclusion, but compels it.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)

(emphasis in original). Because the BIA analyzed Bonilla-Morales’s claims on the

assumption that her testimony was credible, we will do so as well.

B. Asylum

An alien who seeks asylum must establish that she meets the definition of a

“refugee,” which means a person who is unable or unwilling to return to her home country

because of past persecution or a “well-founded fear” of future persecution “on account of

race, religion, nationality, membership in a particular social group, or political opinion.”

INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). The burden of proof is on Bonilla-Morales to

establish that she meets this definition of a refugee. See INA § 208(b)(1)(B)(i), 8 U.S.C.

§ 1158(b)(1)(B)(i).

In addition, because Bonilla-Morales filed her application for asylum after May

2005, the requirements of the REAL ID Act of 2005 apply. See Pub. L. No. 109-13

(codified as amended at INA § 208 (b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i)). This means

that Bonilla-Morales must show that “race, religion, nationality, membership in a particular

social group, or political opinion was or will be at least one central reason for persecuting”

her. Id.

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Bonilla-Morales claims asylum based on past persecution by the MS-13 gang that

she allegedly suffered because she was a member of the putative social group of “family

members of youth who have been subjected to recruitment efforts by the gang and who have

rejected membership.” She also claims to possess a well-founded fear that she will suffer

future persecution on the same basis if she were to return to Honduras. (Bonilla-Morales’s

CAT claim based on the alleged kidnapings, rapes, and beating by her brother-in-law is not

part of her claims for asylum and the withholding of removal.)

Bonilla-Morales faces several hurdles in establishing that she is a refugee. First,

there is the question of whether the mistreatment that she allegedly suffered constitutes

persecution. Persecution is defined as “the infliction of harm or suffering by the

government, or persons the government is unwilling or unable to control, to overcome a

characteristic of the victim.” Al-Ghorbani v. Holder, 585 F.3d 980, 997 (6th Cir. 2009)

(citation omitted). Neither party has presented significant evidence regarding whether the

Honduran government is unwilling or unable to control the MS-13 gang.

And the mistreatment that Bonilla-Morales allegedly suffered might not be severe

enough to constitute persecution. See Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.

1998) (explaining that persecution entails “more than a few isolated incidents of verbal

harassment or intimidation, unaccompanied by any physical punishment, infliction of harm,

or significant deprivation of liberty”). Her family members were the primary targets of the

gang, and persecution of an applicant’s family members will not necessarily be determinative

of past persecution of the applicant. See Bal v. Gonzales, 207 F. App’x 627, 630 (6th Cir.

2006) (holding that the BIA did not abuse its discretion by denying an applicant’s motion

to reconsider his asylum claim based on evidence of persecution suffered by the applicant’s

uncle). The only mistreatment that Bonilla-Morales herself directly suffered was being

asked by the gang for money and having the gang break into her home on one occasion to

remove her grandson Carlos, and she did not explain how this mistreatment was severe

enough to constitute persecution.

Next, Bonilla-Morales must establish that the family members of youth who have

been subjected to recruitment efforts by the MS-13 gang and who have rejected such

membership are a cognizable social group. A social group is a group “of individuals who

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share a common, immutable characteristic.” Castellano-Chacon v. INS, 341 F.3d 533, 546

(6th Cir. 2003) (citation and internal quotation marks omitted). An alleged social group must

be both particular and socially visible:

The essence of the particularity requirement . . . is whether the proposed

group can accurately be described in a manner sufficiently distinct that the

group would be recognized, in the society in question, as a discrete class of

persons. Social visibility, on the other hand, requires that the shared

characteristic of the group should generally be recognizable by others in the

community.

Al-Ghorbani, 585 F.3d at 994 (citation and internal quotation marks omitted). Bonilla-

Morales’s proposed social group likely does not meet these requirements. See, e.g., Matter

of S-E-G-, 24 I. & N. Dec. 579, 583 (BIA 2008) (holding that neither Salvadoran youths who

have resisted gang-recruitment efforts nor their families constitute social groups for asylum

purposes because they lack both the particularity and social visibility characteristics).

We need not reach these two issues, however, because Bonilla-Morales’s asylum

claim clearly fails on the nexus requirement. That is, she has not shown that the

mistreatment that she and her family suffered was “on account of” her membership in this

purported social group. The MS-13 gang did not begin its attempt to recruit Carlos until

approximately 2006. But much of the mistreatment that Bonilla-Morales and her family

suffered at the hands of the gang happened before 2006. Her husband was shot and killed

by alleged gang members in 1973— well before Carlos was even born. And one of her sons

was shot by the same gang in either 2003 or 2004. These incidents were clearly not caused

by Carlos’s refusal to join the gang and thus do not support Bonilla-Morales’s claim for

asylum. See, e.g., Amouri v. Holder, 572 F.3d 29, 33 (1st Cir. 2009) (explaining that to meet

the nexus requirement for asylum, “an alien must produce convincing evidence of a causal

connection; that is, convincing evidence that the harm was premised on a statutorily

protected ground” (emphasis added)).

The timeline for her other alleged mistreatment is unclear. For example, Bonilla-

Morales did not say when the gang began demanding money from her each month. She did,

however, testify that the gang asked her for money because they knew that she had a

daughter living in the United States and assumed that the daughter was sending her mother

money. Because Bonilla-Morales provided no information as to when these demands

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occurred, and because she stated that the gang sought money due to her daughter’s presence

in the United States rather than as a result of Carlos’s refusal to join the gang, the demands

do not support her claim for asylum. See Marku v. Ashcroft, 380 F.3d 982, 987-88

(6th Cir. 2004) (holding that the alien did not qualify for asylum, in part, because she failed

to show that the alleged persecutor was motivated to harm her on the basis of a protected

ground).

The two instances of alleged mistreatment that do coincide with or post-date Carlos’s

recruitment are (1) the gang breaking into Bonilla-Morales’s home and forcefully taking

Carlos with them, and (2) a gang member “bumping” one of her sons with a car or

motorcycle. But these two incidents were far from the start of her troubles with the gang.

Rather, it appears that Bonilla-Morales and her family were subject to indiscriminate

violence by the gang both before and after Carlos was unsuccessfully recruited. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (“Asylum is not available to

victims of indiscriminate violence, unless they are singled out on account of a protected

ground.”).

And Bonilla-Morales has not shown that her mistreatment by the gang after Carlos

refused membership was different in severity or nature than the mistreatment that she

suffered before the gang attempted to recruit him. Indeed, the incidents that predate Carlos’s

recruitment appear to be more severe than those that occurred after he refused to join the

gang. In short, the mistreatment that Bonilla-Morales and her family suffered was not “on

account of” Carlos’s refusal to join the gang—i.e., on account of her membership in the

alleged social group of family members of youth who have rejected gang membership. She

has therefore not established that she qualifies for asylum based on her membership in a

particular social group.

Similarly, Bonilla-Morales has not shown that she is entitled to a presumption of a

well-founded fear of future persecution by the gang based on her status as a refugee because

she has not demonstrated past persecution on that basis. See Mikhailevitch v. INS, 146 F.3d

384, 389 (6th Cir. 1998) (rejecting an asylum claim based on the applicant’s failure to show

past persecution). Nor has she presented any evidence to show that the gang would target

her upon her return to Honduras or that, if they did, it would be because Carlos rebuffed their

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recruitment efforts. Bonilla-Morales’s daughter who has remained in Honduras did submit

a letter to the IJ stating that she and her family were forced to move to another area of

Honduras because the gangs were targeting them. But Bonilla-Morales’s three sons in

Honduras have apparently not needed to move, and the record is devoid of any evidence that

her sons have suffered any mistreatment by the gang since Bonilla-Morales left the country.

See Jing Hu v. Holder, 342 F. App’x 94, 99-100 (6th Cir. 2009) (holding that the applicant

had not established a well-founded fear of future persecution, in part, because she provided

no evidence that family members remaining in the country were still being persecuted).

Substantial evidence therefore supports the conclusion that Bonilla-Morales has not carried

her burden to show that she is eligible for asylum based on a well-founded fear of future

persecution.

C. Withholding of removal

In order to qualify for the withholding of removal, Bonilla-Morales must show “that

it is more likely than not that . . . she would be persecuted on account of race, religion,

nationality, membership in a particular social group, or political opinion upon removal.”

8 C.F.R. § 1208.16(b)(2). This standard is more demanding than the standard required to

establish asylum. Sarr v. Gonzales, 485 F.3d 354, 362 (6th Cir. 2007). Because Bonilla-

Morales did not meet the burden of showing future persecution for asylum purposes, she

cannot meet the higher burden needed to qualify for the withholding of removal. See id.

(rejecting a claim for the withholding of removal because the applicant did not meet the more

lenient standard for asylum).

D. CAT Protection

An alien is eligible for the withholding of removal pursuant to the CAT if she

establishes that “it is more likely than not that . . . she would be tortured if removed to” her

home country. 8 C.F.R. § 1208.16(c)(2). Torture is defined as “any act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . when

such pain or suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.” Id.

§ 1208.18(a)(1).

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Bonilla-Morales claims that she will be tortured by her brother-in-law, a policeman

in the Honduran military, if she were to return to Honduras. But even assuming that her

brother-in-law is a public official for the purposes of the CAT (Bonilla-Morales provided

minimal information about his actual position) or that he was acting in an official capacity

when he harmed her, her CAT claim still fails because she has not carried her burden to

show that he will more likely than not torture her if she returns. Bonilla-Morales testified

regarding three alleged instances of mistreatment by her brother-in-law: an attempted rape

when she was 13, her kidnaping and rape for five days sometime later, and her rape and

beating for one day in 2004. Although the latter two incidents are severe enough to

constitute torture, they are not by themselves sufficient to establish that it is more likely than

not that she will be tortured upon returning to Honduras given the significant time span over

which these incidents occurred. See Prasla v. Gonzales, 226 F. App’x 388, 390 (5th Cir.

2007) (holding that the applicant did not qualify for protection under the CAT, in part,

because the two prior instances of mistreatment happened six years apart, which was a “long

time span between the incidents”); Lam v. U.S. Attorney Gen., 199 F. App’x 801, 802 (11th

Cir. 2006) (holding that two instances of past beatings were not sufficient to support a CAT

claim because the harm was not severe enough and because they were “isolated incidents

during an extended period of time”).

Moreover, the last time that Bonilla-Morales interacted with her brother-in-law (after

she had moved to a different area in Honduras), he did not harm her. Although she said this

was because other people were around at the time, she did not claim that he even attempted

to harm her or that he communicated any threats to her. Three incidents over a 40-year time

period, combined with the fact that he did not harm her once she moved, suggest that the IJ’s

and the BIA’s findings were supported by substantial evidence. See 8 C.F.R.

§ 208.16(c)(3)(ii) (listing “[e]vidence that the applicant could relocate to a part of the

country of removal where he or she is not likely to be tortured” as one of the factors a court

should analyze when deciding whether a CAT applicant has carried her burden).

Aside from the past mistreatment that she allegedly suffered, Bonilla-Morales has

little support for her CAT claim. Particularly troubling is that Bonilla-Morales made no

attempt to establish that her brother-in-law is still a policeman in the Honduran military or

is even still alive (a legitimate question considering that he first attacked her 45 years ago).

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Nor did she present any evidence that he has communicated any threats against her to her

or her family members, many of whom remain in Honduras. She never even identified him

by name.

Bonilla-Morales also failed to mention to the border officials the mistreatment that

she allegedly suffered due to her brother-in-law. In fact, she told them that she had no fear

of returning to Honduras. The record thus does not compel reversal of the IJ’s and the BIA’s

conclusion that Bonilla-Morales failed to prove that she would more likely than not be

tortured upon returning to Honduras.

III. CONCLUSION

For all of the reasons set forth above, we DENY Bonilla-Morales’s petition for

review.