# Marla Lopez-Diego v. Jefferson B. Sessions, III

> Court of Appeals for the Sixth Circuit · November 14, 2017 · 704 F. App'x 576

URL: https://www.frixlaw.com/law-library/cases/4220244

## Case

- **Full name:** Marla Patricia LOPEZ-DIEGO, Derian Ramirez-Lopez, Petitioners, v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** November 14, 2017
- **Citations:** 704 F. App'x 576
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Moore
- **Judges:** Guy, Moore, Rogers
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0631n.06

No. 17-3160 FILED
Nov 14, 2017
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT

MARLA PATRICIA LOPEZ-DIEGO, )
DERIAN RAMIREZ-LOPEZ, )
)
ON PETITION FOR REVIEW
Petitioners, )
OF A FINAL ORDER OF THE
)
BOARD OF IMMIGRATION
v. )
APPEALS
)
JEFFERSON B. SESSIONS, III, U.S. )
ATTORNEY GENERAL, )
OPINION
)
Respondent. )
)

Before: GUY, MOORE, and ROGERS, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Marla Lopez-Diego and her minor son

Derian Ramirez-Lopez, both citizens of Honduras, entered the United States in March 2014.

They entered without being admitted or paroled after an inspection by a Department of

Homeland Security (“DHS”) immigration officer and were immediately served with Notices to

Appear. Lopez-Diego and her son conceded removability and filed an application for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”),

claiming that they faced discrimination in Honduras as members of a minority group, the specific

threat of violence from the killers of Ramirez-Lopez’s father, and the general threat of violence

from the high crime rate in their country.

The Immigration Judge (“IJ”) found that the petitioners were credible, but denied their

applications for asylum, withholding of removal, and protection under the CAT. The Board of
No. 17-3160, Lopez-Diego et al. v. Sessions

Immigration Appeals (“BIA”) affirmed the denial on appeal. After reviewing the record under

the substantial evidence standard, we conclude that Lopez-Diego and Ramirez-Lopez cannot

satisfy their burden of proof for asylum, withholding of removal, or protection under the CAT.

We therefore DENY their petitions for review.

I. BACKGROUND

Honduran citizens Lopez-Diego and her minor son Ramirez-Lopez entered the United

States on or about March 14, 2014. Administrative Record (“A.R.”) at 483 (Lopez-Diego Notice

to Appear at 1); A.R. at 530 (Ramirez-Lopez Notice to Appear at 1). The two entered the

country without being admitted or paroled after an inspection by a DHS immigration officer in

violation of 8 U.S.C. § 1182(a)(6)(A)(i). Id. at 483 (Lopez-Diego Notice to Appear at 1); id. at

530 (Ramirez-Lopez Notice to Appear at 1). They were detained for two days and were then

released. Id. at 232 (Removal Proceeding Tr. at 90). Subsequently, Lopez-Diego and her son

moved to Columbus, Ohio. Id. at 233 (Removal Proceeding Tr. at 91).

At the petitioners’ consolidated removal hearing, both admitted the factual allegations

and conceded removability. Id. at 149 (Removal Proceeding Tr. at 9). On April 22, 2015,

Lopez-Diego filed an I-589 application for asylum, withholding of removal, and protection under

the CAT. Id. Lopez-Diego filed an amended I-589 on September 2, 2015. Id. at 159 (Removal

Proceeding Tr. at 18); id. at 298–316 (Lopez-Diego Amended I-589). Ramirez-Lopez also filed

an I-589 application for asylum, withholding of removal, and protection under the CAT.1 Id. at

1
Although this document is entitled “Respondent’s Amended I-589, Application for Asylum and
Withholding of Removal,” this was Ramirez-Lopez’s first independent application. A.R. at 159 (Removal

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No. 17-3160, Lopez-Diego et al. v. Sessions

505–22 (Ramirez-Lopez I-589). In their applications, the petitioners asserted two main reasons

behind their fear of returning to Honduras. First, Lopez-Diego and Ramirez-Lopez claim that

they face discrimination as members of the Garifuna ethnic group. Id. at 311 (Lopez-Diego

Amended I-589 Add. at 1); id. at 518 (Ramirez-Lopez I-589 Add. at 1). Second, after Ramirez-

Lopez’s father was murdered, Lopez-Diego feared that the unidentified perpetrators would target

their children, specifically their eldest son Derian.2 Id. at 312 (Lopez-Diego Amended I-589

Add. at 2); id. at 519 (Ramirez-Lopez I-589 Add. at 2).

At the removal hearing, Lopez-Diego testified that she was Garifuna, which is a distinct

ethnic group in Honduras. Id. at 183 (Removal Proceeding Tr. at 41). The Garifuna have darker

skin than other ethnic groups in Honduras, wear different clothing, and speak a distinctive

dialect. Id. at 184–85 (Removal Proceeding Tr. at 41–43). Lopez-Diego testified that she lived

in Tornabe, Honduras from 2011 to 2013 in her family’s ancestral home, which was owned by

her mother at the time. Id. at 192 (Removal Proceeding Tr. at 50); id. at 201 (Removal

Proceeding Tr. at 59). In September 2013, the government evicted Lopez-Diego and her family

from their home, along with other members of the local community, in order to build a hotel on

the land. Id. at 193 (Removal Proceeding Tr. at 51). Lopez-Diego testified that the Honduran

government did not compensate her family. Id. at 195 (Removal Proceeding Tr. at 53).

According to Lopez-Diego, the government evicted the local residents from Tornabe because the

Proceeding Tr. at 18). Ramirez-Lopez had previously been included only as a derivative applicant on his mother’s
I-589. Id.
2
In addition to Derian Ramirez-Lopez, who is the rider petitioner in this case, Lopez-Diego has two
younger sons, Kevin and Kelvin Ramirez-Lopez, who still reside in Honduras. Id. at 301 (Lopez-Diego Amended I-
589 at 3).

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No. 17-3160, Lopez-Diego et al. v. Sessions

town is on the coast and well-suited for the development of a tourist resort. Id. at 197 (Removal

Proceeding Tr. at 55).

Lopez-Diego testified that she had moved to Tornabe in 2011 after the father of her

children, Dionisio Ramirez Marcelino (Ramirez), was murdered in March of that year. Id. at

204–06 (Removal Proceeding Tr. at 62–64). Ramirez was shot while working as a bus driver in

San Pedro Sula, Honduras. Id. at 206 (Removal Proceeding Tr. at 64). After the shooting, two

individuals visited Lopez-Diego’s home and asked after her son Derian, who had sometimes

accompanied his father Ramirez to work. Id. at 211 (Removal Proceeding Tr. at 69). Lopez-

Diego feared that the two individuals were Ramirez’s murderers and that fear prompted her to

flee with her family back to her ancestral home along the coast. Id. at 212 (Removal Proceeding

Tr. at 70).

Lopez-Diego testified that she struggled to support her family after Ramirez was killed.

Id. at 210 (Removal Proceeding Tr. at 68). According to Lopez-Diego, there is significant

discrimination against Garifunas in Honduras, and she was unable to obtain steady employment

because employers preferred to hire applicants who were white. Id. at 208–10 (Removal

Proceeding Tr. at 66–68). Lopez-Diego testified that she chose to come to the United States in

February 2014 because of the discrimination she faced in Honduras, her fears about further

violence from Ramirez’s unidentified murderers, and the high crime rate in Honduras in general.

Id. at 215–19 (Removal Proceeding Tr. at 73–77).

The government agreed to stipulate that Ramirez-Lopez’s testimony would be the same

as his mother’s regarding their eviction and the discrimination they face in Honduras as

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No. 17-3160, Lopez-Diego et al. v. Sessions

Garifunas. Id. at 238 (Removal Proceeding Tr. at 96). Ramirez-Lopez testified for the limited

purpose of explaining his fear of further violence from his father’s murderers. Ramirez-Lopez

said that he would visit his father on the bus and Ramirez would introduce him to passengers as

his son. Id. at 243 (Removal Proceeding Tr. at 101). Ramirez-Lopez testified that he was afraid

that the unknown perpetrators would kill him and would find the rest of his remaining family

through him and kill them as well. Id. at 245–46. (Removal Proceeding Tr. at 103–04).

To support their application, petitioners submitted multiple additional documents

including the 2014 U.S. Department of State Country Report on Human Rights Practices for

Honduras, which discusses the discrimination faced by minority groups in Honduras, including

Garifunas. Id. at 364–377 (Resp’t Ex. 3A at Tab J).

The IJ rendered an oral decision on February 1, 2016. Id. at 99 (IJ Dec. at 1). The IJ

found both petitioners to be credible witnesses, but gave little evidentiary weight to the parts of

their testimony that were based on unsupported speculation. Id. at 109 (IJ Dec. at 11). The IJ

found that Lopez-Diego’s application for asylum was untimely, but analyzed both Lopez-

Diego’s and Ramirez-Lopez’s applications as if neither was time-barred. Id. at 110 (IJ Dec. at

12). The IJ found that the petitioners had not established past persecution or a well-founded fear

of future persecution. Id. at 111–13 (IJ Dec. at 13–15). Consequently, the IJ denied the

petitioners’ applications for asylum. Id. at 115 (IJ Dec. at 17). Because the burden of proof for

withholding of removal is higher than that for an asylum application, the IJ also denied the

petitioners’ application for withholding of removal. Id. Finally, the IJ found that neither

petitioner had suffered physical harm and they could safely relocate within Honduras, and

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No. 17-3160, Lopez-Diego et al. v. Sessions

therefore their application for protection under the CAT was also denied. Id. at 116 (IJ Dec. at

18).

The petitioners appealed the IJ’s decision to the BIA. On January 18, 2017, the BIA

dismissed their appeal. Id. at 6 (BIA Dec. at 4). The BIA first found that the IJ’s determination

that the petitioners (respondents below) had not established past persecution or a well-founded

fear of future persecution was not clearly erroneous.3 Id. at 3 (BIA Dec. at 1). Second, the BIA

affirmed the IJ’s denial of withholding of removal because they had not satisfied the lower

burden of proof required for asylum. Id. at 6 (BIA Dec. at 4). Finally, the BIA affirmed the IJ’s

denial of protection under the CAT. Id. The BIA did not address the IJ’s finding that Lopez-

Diego’s application for asylum was untimely because the IJ had considered the merits of her

underlying claim. Id. at 3 (BIA Dec. at 1 n.2).

II. DISCUSSION

A. Standard of Review

When “the BIA reviews the immigration judge’s decision and issues a separate opinion,

rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision

as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “[W]e

are also empowered to review the IJ’s opinion to the extent that the BIA adopts that opinion.”

Marikasi v. Lynch, 840 F.3d 281, 287 (6th Cir. 2016) (quoting Gaye v. Lynch, 788 F.3d 519, 526

(6th Cir. 2015)). “The agency’s findings of fact are reviewed for substantial evidence, and

3
The BIA decision discussed only the IJ’s determinations as to Lopez-Diego and treated Ramirez-Lopez’s
application as wholly derivative of his mother’s application. Id. at 3 (BIA Dec. at 1 n.1).

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No. 17-3160, Lopez-Diego et al. v. Sessions

questions of law are reviewed de novo.” Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir.

2012). Under the substantial-evidence standard, “we will not reverse a factual determination . . .

unless we find ‘that the evidence not only supports a contrary conclusion, but compels it.’”

Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (quoting Marku v. Ashcroft, 380 F.3d 982,

986 (6th Cir. 2004)); 8 U.S.C. § 1252(b)(4)(B). To the extent that the IJ found the petitioners

credible, we treat the representations made in their applications and testimony as true. Stserba v.

Holder, 646 F.3d 964, 972 (6th Cir. 2011).

B. Application for Asylum

“The Secretary of Homeland Security or the Attorney General may grant asylum to an

alien . . . [if either] determines that such alien is a refugee . . . .” 8 U.S.C. § 1158(b)(1)(A). A

“refugee” is defined as an alien “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 group, or political opinion . . . .” 8 U.S.C. § 1101(a)(42). The

applicant for asylum bears the burden of proof to establish that she is a refugee. 8 U.S.C.

§ 1158(b)(1)(B)(i). Furthermore, in order to do so, “the applicant must establish that race,

religion, nationality, membership in a particular social group, or political opinion was or will be

at least one central reason for persecuting the applicant.” Id.

Persecution is not statutorily defined, but it is well-established that “physical harm is not

an essential feature of persecution.” Stserba, 646 F.3d at 972. “Nonphysical persecution can

take various forms, including ‘the deliberate imposition of severe economic disadvantage or the

deprivation of liberty, food, housing, employment[,] or other essentials of life.’” Id. (alteration

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No. 17-3160, Lopez-Diego et al. v. Sessions

in original) (quoting In re T-Z-, 24 I. & N. Dec. 163, 171 (B.I.A. 2007)). Persecution does,

however, “require[] more than a few isolated incidents of verbal harassment or intimidation,

unaccompanied by any physical punishment, infliction of harm, or significant deprivation of

liberty.” Bi Xia Qu v. Holder, 618 F.3d 602, 606 (6th Cir. 2010) (quoting Singh v. Ashcroft, 398

F.3d 396, 401 (6th Cir. 2005)). The types of harm that rise to the level of persecution, as

opposed to harassment, include: “detention, arrest, interrogation, prosecution, imprisonment,

illegal searches, confiscation of property, surveillance, beatings, or torture.” Stserba, 646 F.3d at

972 (quoting Haider v. Holder, 595 F.3d 276, 286–87 (6th Cir. 2010)). Finally, “the infliction of

harm or suffering [must be] by the government, or persons the government is unwilling or unable

to control.” Khalili, 557 F.3d at 436 (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir.

2004)).

If the asylum applicant establishes past persecution, then she is presumed to have a well-

founded fear of persecution. Bi Qing Zheng v. Lynch, 819 F.3d 287, 294 (6th Cir. 2016). If the

asylum applicant cannot show evidence of past persecution, she must instead prove her well-

founded fear of future persecution.

To do this, the applicant must show that he “actually fear[s] that he will be
persecuted upon return to his country, and he must present evidence establishing
an objective situation under which his fear can be deemed reasonable.” [Allabani
v. Gonzales, 402 F.3d 668, 674 (6th Cir. 2005)] (internal quotation marks
omitted). “The applicant need not demonstrate that he will probably be persecuted
if returned because one can certainly have a well-founded fear of an event
happening when there is less than a 50% chance of the occurrence taking place.”
Selami v. Gonzales, 423 F.3d 621, 625 (6th Cir.2005) (internal quotation marks
omitted).
Id.

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The BIA held that Lopez-Diego had not established that she had suffered past persecution

on account of a protected ground. A.R. at 4 (BIA Dec. at 2). That decision was supported by

substantial evidence. Lopez-Diego testified, both on direct and cross examination, that her

family’s ancestral home was taken by the government because the home was on the site of a

planned tourist development. Id. at 226–27 (Removal Proceeding Tr. at 84–85) (“The only

reason [the government took the land] was to build resorts . . . .”); see also id. at 197 (Removal

Proceeding Tr. at 55). The petitioners did not establish that a “central reason” behind their

eviction was the fact they were Garifuna. Furthermore, the State Department Country Report for

Honduras details efforts by both the Honduran government and the Inter-American Court of

Human Rights to address claims by various minority groups that their property rights have been

violated. Id. at 374 (Resp’t Ex. 3A at Tab J at 11). Consequently, the record supports the BIA’s

conclusion that the petitioners’ eviction was at most a civil dispute rather than persecution.4

Additionally, there is substantial evidence in the record supporting the BIA’s conclusion

that the discrimination faced by the petitioners as Garifunas does not rise to the level of

persecution. Lopez-Diego testified that neither she nor her relatives remaining in Honduras had

been physically harmed because they were Garifunas. Id. at 226, 228 (Removal Proceeding Tr.

at 84, 86). Additionally, although Lopez-Diego testified that her employment provided

insufficient income for her to support her family after the death of Ramirez, her testimony also

revealed that both she and Ramirez were able to find jobs. Id. at 206–08 (Removal Proceeding
4
Because the record supports the conclusion that the petitioners’ eviction was not on account of a protected
ground, we do not reach the question of whether the BIA was correct to hold that an alien cannot establish
persecution if the property confiscated by the government was owned by a family member as opposed to the alien
herself.

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No. 17-3160, Lopez-Diego et al. v. Sessions

Tr. at 64–66). Economic deprivations must be sufficiently severe in order to constitute

persecution. Stserba, 646 F.3d at 976; see also Ljuljdjurovic v. Gonzales, 132 F. App’x 607, 612

(6th Cir. 2005) (holding that aliens’ loss of job, denial of credit, and failure of a business due to

the lack of customers were insufficient to constitute economic persecution). Here, the economic

deprivations the petitioners have established do not rise to the level of economic persecution in

terms of their severity.5

The record also does not compel a contrary conclusion to the BIA’s holding that the

petitioners have not established a well-founded fear of future persecution. The IJ found credible

Lopez-Diego and Ramirez-Lopez’s fears about further directed violence from the unidentified

killers of Ramirez and generalized violence due to the high crime rate. Id. at 109 (IJ Dec. at 11).

Persecution, however, is the infliction of harm “by the government, or persons the government is

unwilling or unable to control.” Khalili, 557 F.3d at 436 (quoting Pilica, 388 F.3d at 950).

“Petitioners must have been ‘specifically targeted by the government for abuse based on a

statutorily protected ground,’ not merely victimized ‘by indiscriminate mistreatment’ or ‘random

crime.’” Stserba, 646 F.3d at 972 (quoting Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.

2005)). Because the petitioners have not shown that the violence they fear is from the

government or from parties the government is unwilling or unable to control, they have not

established that they fear future persecution. Umaña-Ramos v. Holder, 724 F.3d 667, 670–71

(6th Cir. 2013) (“General conditions of rampant gang violence alone are insufficient to support a

5
Furthermore, the petitioners did not produce any evidence that any economic discrimination they faced
was due to the government or to persons the government was unwilling or unable to control, as opposed to
discrimination by private parties.

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No. 17-3160, Lopez-Diego et al. v. Sessions

claim for asylum.”); Zaldana Menijar v. Lynch, 812 F.3d 491, 501 (6th Cir. 2015)

(“[W]idespread crime and violence does not itself constitute persecution on account of a

protected ground.”).

Because substantial evidence supports the BIA’s determination that the petitioners failed

to establish a sufficient nexus between their status as Garifunas and the past harm and future

harm they endured or fear, we deny their petition for review regarding their claim for asylum.

C. Withholding of Removal

An applicant for withholding of removal must demonstrate that her “life or freedom

would be threatened in that country [of removal] because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The

alien must establish a ‘clear probability of persecution,’ meaning that ‘it is more likely than not

that the alien would be subject to persecution.’” Al-Ghorbani v. Holder, 585 F.3d 980, 993–94

(6th Cir. 2009) (quoting INS v. Stevic, 467 U.S. 407, 413, 424 (1984)). “It is more difficult to

obtain withholding of removal than it is to obtain asylum” because the standard of proof for

withholding of removal is more stringent than that for asylum. Bi Qing Zheng, 819 F.3d at 294.

“Therefore, if an applicant fails to satisfy the lower burden of proof for asylum, it follows that he

also fails to satisfy the higher burden required for withholding of removal.” Id. Because Lopez-

Diego and Ramirez-Lopez have not met the requirements for establishing their eligibility for

asylum, they cannot meet the heightened requirements for withholding of removal.

Consequently, we deny their petition for review regarding their withholding of removal

application.

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D. Relief Under the CAT

To qualify for protection under the CAT, an applicant must “establish that it is more

likely than not that he or she would be tortured if removed to the proposed country of removal.”

8 C.F.R. § 1208.16(c)(2); see also Ramaj v. Gonzales, 466 F.3d 520, 532 (6th Cir. 2006).

“‘Torture,’ in any of its myriad manifestations, must entail the intentional infliction of severe

mental or physical pain upon an individual ‘by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.’” Alhaj v. Holder,

576 F.3d 533, 539 (6th Cir. 2009) (quoting 8 C.F.R. § 208.18(a)(1)). “[T]orture may be based on

any reason so long as it is inflicted by, instigated by, or done with the consent or acquiescence of

a government official or someone acting in [an] official capacity.” Hamida v. Gonzales, 478

F.3d 734, 741 (6th Cir. 2007). In other words, unlike a claim for asylum or withholding of

removal, “[n]o protected-ground nexus is required” to qualify for protection under the CAT.

Haider, 595 F.3d at 289.

The record evidence does not compel a conclusion contrary to the BIA’s holding that

Lopez-Diego “has not shown that it is more likely than not that she will be tortured if she returns

to Honduras.” A.R. at 6 (BIA Dec. at 4). First, Lopez-Diego testified that neither she nor her

relatives remaining in Honduras had ever been physically harmed, let alone tortured. Id. at 226,

228 (Removal Proceeding Tr. at 84, 86). Second, the petitioners did not show that any physical

harm they feared was more likely than not to be “inflicted by, instigated by, or done with the

consent or acquiescence of a government official or someone acting in [an] official capacity.”

Hamida, 478 F.3d at 741. “The CAT does not afford protection to torturous acts inflicted by

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wholly private actors.” Zaldana Menijar, 812 F.3d at 501. Thus, the record supports the BIA’s

conclusion that the petitioners failed to meet the requirements to qualify for protection under the

CAT; we therefore deny their petition for review regarding their application for relief under the

CAT.

III. CONCLUSION

Because there is substantial evidence in the record supporting the BIA’s decision that

Lopez-Diego and Ramirez-Lopez have failed to satisfy their burden of proof for asylum,

withholding of removal, and protection under the CAT, we DENY their petitions for review of

the BIA’s decision.

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4220244. Public record. Not legal advice.