A well-founded fear of death alone is not a basis for asylum.

Sunday, April 29th, 2018
By: Jonathan MontagJ.D.

Over and over, the media reports of aliens fleeing violence in Latin America, predominantly Mexico, Guatemala, Honduras, and El Salvador seeking asylum in the United States. Over and over the pretense is that a well-founded fear of persecution allows one to win an asylum claim and live in safety in the United States. Over and over, the facts and the law show this is not true, as I have written here and here and here and here and here. Certainly, one must show a well-founded fear of persecution. But a well-founded fear is not enough. This fear must be “on account” of a person’s race, religion, political opinion, nationality, or social group. No nexus to one of these five grounds and there is no asylum.

Today’s news is about a “caravan” of Latin Americans coming to the San Ysidro, California, Port of Entry, the land border between San Diego and Tijuana, to seek asylum because of their fears of gangs – gangs raping them, kidnapping them, killing family members, impressing them and their families into the gangs to kill others or sell drugs. As this location is in the Ninth Judicial Circuit, I thought it would be instructive to do a case-law search, “Gangs and Asylum,” and see what the most-recent Ninth Circuit cases teach us. Here we go – most recent first:

1. Medrano-Ponce v. Sessions, No. 13-72557 (9th Cir. Apr. 16, 2018)

Substantial evidence supports the agency’s determination that Medrano-Ponce failed to establish that any harm he experienced or fears in El Salvador was or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”); Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (rejecting petitioner’s claim where he “provided no evidence that his opposition to the gang’s criminal activity was based on political opinion”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc); see also Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (to demonstrate membership in a particular group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'”) (citation omitted). Thus, Medrano-Ponce’s asylum and withholding of removal claims fail. See Zetino, 622 F.3d at 1016.

2. Barrientos v. Sessions, No. 15-70544 (9th Cir. Apr. 16, 2018)

Substantial evidence supports the BIA’s conclusion that Barrientos failed to establish she would be persecuted on account of a protected ground. See Zetino, 622 F.3d at 1016 (9th Cir. 2010) (applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, in the absence of a nexus to a protected ground, petitioner’s withholding of removal claim fails. See id. Because this determination is dispositive as to Barrientos’ eligibility for withholding of removal, we do not reach her contentions regarding changed country conditions. Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

3. Secundido-Solis v. Sessions, No. 17-70615 (9th Cir. Apr. 13, 2018)

Substantial evidence supports the agency’s determination that Secundido-Solis failed to establish the threats as to his father, the denial of a job, and the disappearance of his cousin, even considered cumulatively, rose to the level of persecution. See Wakkary, 558 F.3d at 1060 (two incidents of being beaten and robbed and being accosted by a mob did not compel a finding of past persecution, and harm to associates was not ‘closely tied’ to petitioner); Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003) (record did not compel the finding that petitioner experienced past persecution). Further, substantial evidence supports the agency’s finding that Secundido-Solis failed to establish a nexus between the harm he fears and a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group” (emphasis in original)); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner’s desire to be free from harassment motivated by theft or random violence by gang members has no nexus to a protected ground). Thus, Secondido-Solis’ withholding of removal claim fails.

4. Ramirez v. Sessions, No. 15-71465 (9th Cir. Apr. 13, 2018)

Substantial evidence supports the agency’s determination that Trancoso Ramirez failed to establish that any harm he experienced or fears in Mexico was or would be on account of a protected ground. See Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir. 2011) (a personal dispute, standing alone, does not constitute persecution based on a protected ground); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). We reject, as unsupported by the record, Trancoso Ramirez’s contention that the agency violated his due process rights or otherwise erred by failing to properly analyze his claims. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim). Thus, in the absence of a nexus to a protected ground, Trancoso Ramirez’s asylum and withholding of removal claims fail. See Zetino, 622 F.3d at 1016.

5. Pereira v. Sessions, No. 11-71402 (9th Cir. Apr. 13, 2018)

Substantial evidence supports the agency’s determination that Pereira failed to establish a nexus between the harm he suffered and fears and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, petitioners’ asylum and withholding of removal claims fail. See id. at 1015-16.

6. Lopez v. Sessions, Nos. 14-73684 (9th Cir. Apr. 13, 2018)

Simon Lopez’s initial petition is denied because he has failed to demonstrate his membership in a particular social group or a well-founded fear of persecution should he be removed to his country of origin, Mexico. Here, the record does not establish that Simon Lopez actually cooperated with police with respect to the 2003 shooting in Phoenix, Arizona. The record neither supports the contention that imputed informants are a particular social group in Mexican society, nor that Simon Lopez’s alleged persecutors harassed him in Mexico in 2009 and 2010 because of his purported cooperation with police in Phoenix, Arizona, in 2003. Simon Lopez does not connect the harassment and the break-in to any threats or intimidation specifically related to that cooperation, nor does he demonstrate that the gang believed him to have cooperated with police. Independently, the incidents described by Simon Lopez do not give rise to a well-founded fear of persecution on the basis of membership in a particular social group. Because HN2 the standard for withholding of removal is “more stringent than the well-founded fear standard governing asylum,” we also deny review of the agency’s decision not to grant withholding of removal. Simon Lopez acknowledges that his motion to reopen is untimely, but moves to reopen his application on the grounds that the 2015 murder of his cousin, Juan Luis Lopez Diaz, constitutes changed country circumstances. Simon Lopez contends that the murder of his cousin was a tragic case of mistaken identity, and that Simon Lopez was the real target. The Board’s denial of that motion is reviewed for abuse of discretion. While Simon Lopez provides evidence that he has used Lopez Diaz’s name, tSimon Lopez provides insufficient evidence to connect Lopez Diaz’s death to Simon Lopez’s alleged persecutors, let alone to show a prima facie link between that event and Simon Lopez’s alleged status as an imputed cooperator whose cooperation occurred in 2003. On the record before the Court, the Board did not abuse its discretion when it denied Simon Lopez’s motion to reopen.

7. Esteban-Gonzalez v. Sessions, No. 17-72615 (9th Cir. Apr. 13, 2018)

Substantial evidence supports the BIA’s finding that Esteban-Gonzalez failed to establish he was or would be persecuted on account of his political opinion. See Barrios v. Holder, 581 F.3d 849, 856, 567 F.3d 451 (9th Cir. 2009) (petitioner failed to present evidence of actual or imputed political or ideological opposition to the gang attempting to recruit him or to gangs in general). Further, the BIA did not err in finding that Esteban-Gonzalez did not establish membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Esteban-Gonzalez’s asylum and withholding of removal claims fail.

8. Calderon v. Sessions, No. 17-70641 (9th Cir. Apr. 13, 2018)

Substantial evidence supports the agency’s determination that Calderon has not established a likelihood of future persecution on account of a protected ground. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (In order to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans” returning to Mexico does not constitute a particular social group); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). Thus, Calderon’s asylum and withholding of removal claims fail. Id.

9. Salvador-Secundino v. Sessions, No. 17-73082 (9th Cir. Apr. 12, 2018)

Substantial evidence supports the agency’s determination that Salvador-Secundino has not established a likelihood of future persecution on account of a protected ground. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans” returning to Mexico does not constitute a particular social group); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, we deny the petition for review as to Salvador-Secundino’s application for withholding of removal.

10. Pineda-Quezada v. Sessions, No. 16-73963 (9th Cir. Apr. 12, 2018)

Substantial evidence supports the agency’s determination that Pineda-Quezada failed to establish he would be persecuted on account of a protected ground. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (In order to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans” returning to Mexico does not constitute a particular social group); Barrios v. Holder, 581 F.3d 849, 854-56 (9th Cir. 2009) (rejecting claim that alien was persecuted on account of a political opinion where he established no facts in support of a political opinion beyond his refusal to join the gang); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Pineda-Quezada’s asylum and withholding of removal claims fail.

All of these decisions are unpublished. As the Court of Appeals usually publishes opinions when they are deciding something new, the fact that none of the opinions is published shows that a well-founded fear of gangs killing you is not a grounds for asylum. When was the last published gang-asylum opinion, you ask? A year and a half ago.

Garay Reyes v. Lynch, 842 F.3d 1125, 1139-40 (9th Cir. November 30, 2016)

The BIA’s application of the “particularity” requirement to Garay’s purported class of “deportees from the United States to El Salvador” was reasonable. The BIA found that a proposed class of deportees was too amorphous, overbroad and diffuse because it included men, women, and children of all ages, regardless of the length of time they were in the United States, the reasons for their removal, or the recency of their removal. Matter of W-G-R-, 26 I. & N. Dec. at 223. Garay presented scarcely any contrary evidence. Viewing all the evidence, the BIA’s rejection of Garay’s proposed class was reasonable, if not compelled.Indeed, the BIA’s determination is supported by case law declining to recognize much more circumscribed purported groups of deportees. Most recently, in Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016), we affirmed the BIA’s determination that a purported class of “imputed wealthy Americans” deported to Mexico did not constitute a particular social group. Citing Henriquez-Rivas, 707 F.3d at 1090, we held that the proposed group was not “sufficiently particular that it can be described with passable distinction that the group would be recognized as a discrete class of persons.” Ramirez-Munoz, 816 F.3d at 1229.As in Ramirez-Munoz, the BIA’s rejection of Garay’s purported class of “deportees from the United States to El Salvador” is not contrary to our holding in Henriquez-Rivas that “considerations of diversity of lifestyle and origin” may not be “the sine qua non of ‘particularity’ analysis.” 707 F.3d at 1093-94. To go so far would come close to doing away with the particularity requirement, which was included in the plain language of the statute enacted by Congress. Aguirre-Aguirre, 526 U.S. at 419. However, this was not our intent. Where a petitioner makes a prima facie showing of a “discrete class of persons,” neither diversity of lifestyle nor origin will undermine that group. But where, as here, a petitioner proffers a group that is amorphous rather than discrete, he can hardly be heard to argue that the BIA may not consider the proposed group’s lack of cohesion in determining that it is not particular.Applying the deference due to the BIA’s decision and reviewing the entire record, we reject Garay’s challenge to the BIA’s determination that his proposed group of “deportees from the United States to El Salvador” is not cognizable.

This last case was a part-literal, part-figurative nail in the gang-asylum-applicant’s coffin.

So what will happen to these desperate fellow-Americans coming to San Ysidro today? The vast majority, unable to show that their persecution was on account of membership in a social group or race, religion, nationality, or political opinion, after spending time in ice boxes and then detention centers, separated from their families, and separated from their money – the costs of getting to the United States and for some, hiring a lawyer, will lose and be sent back home to be persecuted or killed.

For what it’s worth, this is not an American law phenomenon. It is international law. Posted April 29, 2018.


 

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