United States v. Trevor Ray

United States Court of Appeals
For the Eighth Circuit
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No. 18-3651
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Mario Mejia-Lopez; Silvia Lorena Rodas-Ordonez; Erick Fernando Mejia-Rodas;
Meylin Lorena Mejia-Rodas; Luis Mario Mejia-Rodas
lllllllllllllllllllllPetitioners
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 24, 2019
Filed: December 11, 2019
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Before SMITH, Chief Judge, BEAM and ERICKSON, Circuit Judges.
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SMITH, Chief Judge.
Petitioners seek review of the Board of Immigration Appeals’ (BIA) denial of
their request for humanitarian asylum. Mario Mejia-Lopez and Silvia Rodas-Ordonez
are the parents of Erick Mejia-Rodas, Meylin Mejia-Rodas, and Luis Mejia-Rodas,
and they seek asylum for themselves and their children. They contend that the BIA

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erred in requiring that they show past persecution on account of a protected ground
as a prerequisite for obtaining humanitarian asylum. Petitioners also request that we
remand this case to the BIA for full development of the record on
their humanitarian-asylum claim. We deny the petition for review.
I. Background
Petitioners are natives and citizens of Guatemala. On or about October 31,
2016, petitioners reached the United States-Mexico border in El Paso, Texas.
Petitioners did not present valid entry or travel documents upon applying for
admission and, therefore, were paroled into the United States. The Department of
Homeland Security (DHS) simultaneously served petitioners with a notice to appear
(NTA), which charged petitioners with being removable pursuant to the Immigration
and Nationality Act (INA) § 212(a)(7)(A)(i)(I). See 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Petitioners resided in Carthage, Missouri. In January 2017, DHS filed the NTA in the
Immigration Court in Kansas City, Missouri, initiating formal removal proceedings
against petitioners.
In June 2017, petitioners admitted to all factual allegations in the NTA,
conceded removability, and declined to designate a country of removal. The
immigration judge (IJ) designated Guatemala as the country of removal, and
petitioners informed the IJ that they would apply for asylum and other relief.
Petitioners claimed that they qualified for asylum based on (1) their
membership in two particular social groups (PSG) and (2) their political opinions.
Meylin alleged that she had suffered past persecution as a member of “female
children subjected to rape within a society where the subordination and devaluation
of women by men ha[ve] allowed them to be sexually persecuted with government
sanctioned impunity.” Pet’rs’ Br. at 5 (quoting Admin. R. at 4). The remaining
petitioners stated that they are members of one family and averred past persecution
based on their kinship to Meylin. Petitioners explained that a man had raped Meylin
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when she was 13 years old. They alleged that the perpetrator’s supporters had
threatened to kill petitioners if they pursued criminal charges. The threats caused
petitioners to seek refuge in the United States. They also contended that the ordeal
has traumatized Meylin and affected her well-being.
In addition, petitioners asserted that they had been persecuted based on their
political opinions. According to petitioners, they expressed their political opinions
when Meylin had resisted the perpetrator’s abuse by reporting Meylin’s rape to law
enforcement and pursuing criminal charges. Petitioners claimed that their alleged
political opinions had induced the threat that they received from the perpetrator’s
supporters. Petitioners also relied on the government’s alleged indifference toward
Meylin’s rape.
The IJ held a merits hearing in August 2017 and subsequently denied
petitioners’ multiple claims for relief. In relevant part, the IJ concluded that
petitioners were not eligible for humanitarian asylum pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii) because petitioners had not established past persecution based on
a protected ground that is enumerated in § 101(a)(42)(A) of the INA. See also
8 U.S.C. § 1101(a)(42)(A). In sum, the IJ found that petitioners had not shown that
they were harmed due to either Meylin’s membership in her alleged PSG or as a result
of their alleged political opinions.
The IJ specifically found that petitioners had failed to show that Meylin’s PSG
is cognizable as a particular and socially distinct group. The IJ acknowledged gender
as an immutable characteristic but explained that gender alone is insufficient to
satisfy the particularity requirement of a PSG. Further, the IJ found that the
group—young girls who have been sexually abused—is not socially distinct. The IJ
also found that opposing private criminal activity as a victim is not a political opinion
as that term is understood in immigration law. The IJ did not address the other alleged
PSG.
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Petitioners appealed to the BIA. Among other things, petitioners argued before
the BIA that they qualified for humanitarian asylum because they would suffer “other
serious harm” if removed to Guatemala and that the “other serious harm” does not
require proof of “harm or past persecution on account of a protected group.” Pet’rs’
Br. at 10. Petitioners described the “other serious harm” as the likelihood of Meylin
continuing to experience post-traumatic stress disorder, the possibility of Meylin
exhibiting careless behavior, and the risk of Meylin committing suicide. The BIA
denied relief and agreed with the IJ, concluding that petitioners were not eligible for
humanitarian asylum because they had failed to demonstrate the requisite past
persecution on account of a protected ground.
In determining whether past persecution in connection with a protected ground
existed, the BIA only addressed Meylin’s alleged PSG and petitioners’ alleged
political opinions. The BIA stated the following:
[T]o be a cognizable particular social group for asylum . . . purposes, the
claimed group must exist independently of the persecution or harm its
members claim to suffer or fear. The group female children subjected to
rape is impermissibly circular because it is defined by reference to the
persecution (i.e., rape) its members have suffered.
Pet’rs’ Add. at 4 (cleaned up). The BIA further found that Meylin’s alleged PSG is
defined as a childhood group, that childhood is not an immutable characteristic, and
that petitioners had not demonstrated a nexus between any Guatemalan female child
that had been targeted for persecution on account of her status as a rape victim. The
BIA also found that petitioners’ “mere opposition to private criminal acts does not so
qualify” as a political opinion for asylum purposes. Id.
The BIA dismissed petitioners’ entire appeal. This timely petition for review
ensued, see 8 U.S.C. § 1252(b)(1), and we have jurisdiction to review the BIA’s final
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order of removal as it relates to petitioners’ humanitarian-asylum claim. See 8 U.S.C.
§ 1252(a)(1).
II. Discussion
“We review the BIA’s decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or the reasoning of the IJ, we also review
the IJ’s decision as part of the final agency action.” Degbe v. Sessions, 899 F.3d 651,
655 (8th Cir. 2018) (quoting Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir.
2008)). “We review the BIA’s legal determinations de novo, according substantial
deference to the BIA’s interpretation of the statutes and regulations it administers.”
Id. (quoting Davila-Mejia, 531 F.3d at 627). As for the BIA’s ultimate denial of an
asylum application, such decision “is ‘conclusive unless manifestly contrary to the
law and an abuse of discretion.’” Mambwe v. Holder, 572 F.3d 540, 547 (8th Cir.
2009) (quoting 8 U.S.C. § 1252(b)(4)(D)).
Petitioners’ principal argument on appeal is that a showing of past persecution
based on a protected ground is not required as a prerequisite for a grant of
humanitarian asylum. Petitioners also assert that this court has on other occasions
addressed the “other serious harm” ground for humanitarian asylum. They contend
we have defined this ground as “harm that is not inflicted on account of race, religion,
nationality, membership in a particular social group, or political opinion, but is so
serious that it equals the severity of persecution.” Pet’rs’ Br. at 10 (quoting
Hernandez v. Holder, 579 F.3d 864, 875 (8th Cir. 2009), vacated in part, 606 F.3d
900 (8th Cir. 2010)). Petitioners further allege that the BIA improperly characterized
their claim for humanitarian asylum as being based on past persecution only and that
the BIA did not properly develop the record as a result of the mischaracterization.
Discretion to grant asylum to an individual who is considered to be a “refugee”
within the meaning of the INA rests with DHS or the Attorney General.
Ixtlilco-Morales v. Keisler, 507 F.3d 651, 654 (8th Cir. 2007) (quoting 8 U.S.C.
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§ 1158(b)(1)). “A refugee is defined by the [INA] as an alien who is unwilling or
unable to return to his or her country of nationality ‘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.’” Id. (citing 8 U.S.C.
§ 1101(a)(42)(A)). An asylum applicant bears the burden of proving that she or he is
a refugee within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(B)(i).
An asylum applicant is entitled to a rebuttable presumption of a well-founded
fear of persecution after demonstrating that the applicant’s past persecution or harm
occurred because of a statutorily protected ground. Bushira v. Gonzales, 442 F.3d
626, 630–31 (8th Cir. 2006) (citing 8 C.F.R. § 208.13(b)(1)); see also 8 C.F.R.
§ 1208.13(b)(1).1 DHS can rebut the well-founded fear presumption. Bushira, 442
F.3d at 631 (citing 8 C.F.R. § 208.13(b)(1)(ii)); see also 8 C.F.R. § 1208.13(b)(1)(ii).
But even when it does, an applicant may be entitled to a discretionary grant of
humanitarian asylum pursuant to the following:
(iii) Grant in the absence of well-founded fear of persecution. An
applicant described in paragraph (b)(1)(i) of this section . . . may be
granted asylum, in the exercise of the decision-maker’s discretion, if:
(A) The applicant has demonstrated compelling reasons for
being unwilling or unable to return to the country arising
out of the severity of the past persecution; or
(B) The applicant has established that there is a reasonable
possibility that he or she may suffer other serious harm
upon removal to that country.
1“As a result of the enactment of the Homeland Security Act of 2002, 8 C.F.R.
Part 208 was duplicated at 8 C.F.R. Part 1208, which applies to actions by the BIA.”
Ixtlilco-Morales, 507 F.3d at 655 n.2.
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8 C.F.R. § 1208.13(b)(1)(iii)(A)–(B) (emphasis added). The applicant must be “an
alien found to be a refugee on the basis of past persecution.” 8 C.F.R.
§ 1208.13(b)(1)(i). Thus, a humanitarian-asylum applicant must first demonstrate
refugee status that is based on a nexus between the past persecution and a protected
ground—either race, religion, nationality, membership in a PSG, or political opinion.
Id.; see also 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). Once it is established that
the humanitarian-asylum applicant is a refugee within the meaning of the INA, then
the applicant must either provide compelling reasons that reveal why the applicant
cannot return to the country of removal as it relates to the past persecution or prove
that there is a reasonable possibility that the applicant may suffer other serious harm
in the country of removal. 8 C.F.R. § 1208.13(b)(1)(iii)(A)–(B). Simply put, a
humanitarian-asylum applicant must establish that she or he is a refugee based on past
persecution. Kanagu v. Holder, 781 F.3d 912, 919 (8th Cir. 2015).
Petitioners’ principal argument—that past persecution is not required as a
prerequisite for obtaining humanitarian asylum—is foreclosed by our existing
precedent. In Kanagu, this court briefly discussed Kanagu’s argument that a remand
of his case was warranted because the BIA did not address his humanitarian-asylum
claim. Id. We held that remand was not warranted because “humanitarian asylum may
only be granted to an alien found to be a refugee on the basis of past persecution,
meaning Kanagu’s failure to prove persecution on a protected ground makes him
ineligible for humanitarian asylum.” Id. (cleaned up); see also Esenwah v. Ashcroft,
378 F.3d 763, 766 (8th Cir. 2004) (“[W]ithout the requisite nexus[,] [petitioner] does
not fit the statutory term ‘refugee’ and thus is not eligible for a discretionary grant of
asylum.”).
Here, petitioners must prove that they are refugees based on past persecution
as provided in 8 C.F.R. § 1208.13(b)(1)(i)–(iii). See also 8 U.S.C. § 1158(b)(1)(B)(i).
As discussed, petitioners must make an initial showing of refugee status by
connecting petitioners’ past persecution to a protected ground. Petitioners have not
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made that showing. Therefore, the BIA did not abuse its discretion in denying
petitioners’ request for humanitarian asylum.
III. Conclusion
For the foregoing reasons, we deny the petition for review.
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