United States v. 2014-06-11 | 09-73391 | MIRNA LOPEZ V. ERIC HOLDER, JR. | nonprecedential |…

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRNA LETICIA LOPEZ, No. 09-73391
Petitioner, BIA No. A075-483-122
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Submitted February 4, 2014**
Pasadena, California
Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief
District Judge.***
Petitioner-appellant Mirna Leticia Lopez petitions for review from a Board
of Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s (“IJ”)
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Carol Bagley Amon, Chief Judge, United States District
Court for the Eastern District of New York, sitting by designation.
FILED
JUNE 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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determination that she is not entitled to asylum, withholding of removal, or relief
under the Convention Against Torture. Because Lopez failed to present evidence
so compelling that a reasonable fact finder would have to find Lopez suffered past
persecution or had an objectively reasonable fear of future persecution, we affirm
the BIA’s determination.
(1) “To establish past persecution, ‘an applicant must show: (1) an
incident, or incidents, that rise to the level of persecution; (2) that is ‘on account
of’ one of the statutorily-protected grounds; and (3) is committed by the
government or forces the government is either ‘unable or unwilling’ to control.’”
Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009) (quoting Navas, 217 F.3d at
655-56). If a petitioner fails to demonstrate past persecution, she can still show a
well-founded fear of future persecution through “‘credible, direct, and specific
evidence in the record of facts that would support a reasonable fear of
persecution.’” Rusak, 734 F.3d at 896 (quoting Duarte de Guinac v. INS, 179 F.3d
1156, 1159 (9th Cir. 1999)). This Court must “uphold the BIA’s determination
unless the evidence compels a contrary conclusion.” Prasad v. INS, 101 F.3d 614,
617 (9th Cir. 1996) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
The BIA’s determination “can be reversed only if the evidence presented . . . was
such that a reasonable factfinder would have to conclude that the requisite fear of
persecution existed.” Elias-Zacarias, 502 U.S. at 481.

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An applicant seeking to establish past persecution must show that the harm
the applicant suffered was inflicted on account of a protected ground. Sinha, 564
F.3d at 1020. Persecution is not “on account of” a protected ground unless the
persecution occurred “because of” a protected ground. Parussimova v. Mukasey,
555 F.3d 734, 739 (9th Cir. 2009). “Since the statute makes motive critical” an
applicant “must provide some evidence of [motive], direct or circumstantial.”
Elias-Zacarias, 502 U.S. at 483 (emphasis in original).
Here, Lopez testified that she did not know who killed her family members
or why they were killed. The temporal proximity between Lopez’s father’s
warning and his murder is not circumstantial evidence that, standing alone,
compels finding that her father was murdered on account of his political beliefs.
The fact that two other politically-active family members were murdered over a
period of years does not add to the quantum of proof in the absence of evidence of
the motive for their murders or the identities of their killers. Accordingly, the
evidence does not compel the conclusion that Lopez suffered harm on account of a
protected ground.
(2) The BIA also determined that Lopez failed to show a reasonable fear
of future persecution. Although “acts of violence against a petitioner’s friends or
family members may establish a well-founded fear of persecution,” the violence
must “create a pattern of persecution closely tied to the petitioner.” Korablina v.

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INS, 158 F.3d 1038, 1043-44 (9th Cir. 1998). “Allegations of isolated violence are
not enough” to demonstrate a pattern of persecution. Arriaga-Barrientos v. INS,
937 F.2d 411, 414 (9th Cir. 1991) (holding that the abduction of two
geographically distant brothers did not support petitioner’s claim of a well-founded
fear of persecution). Additionally, a petitioner’s claim to a well-founded fear of
future persecution “is weakened, even undercut, when similarly-situated family
members living in the petitioner’s home country are not harmed.” Sinha, 564 F.3d
at 1022 (emphasis in original) (internal quotation marks omitted).
Lopez’s testimony has not established a pattern of persecution closely tied to
her. As noted previously, the three murders she relies on occurred over the span of
a decade, and Lopez did not know who killed her relatives or why they were killed.
Since the BIA correctly determined that Lopez and her mother were similarly
situated to each other, any claim of a well-founded fear is further undercut by the
fact the Lopez’s mother has not been harmed.
The dissent relies on Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999), but that
case rested on considerations not here present. In Mgoian, the petitioner offered
evidence that all of her principal family members were subjected to “forms of
violence, persecution and harassment as members of the Kurdish-Moslem
intelligentsia,” and that “virtually the entire Mgoian family [had been forced] to
flee Armenia.” Mgoian, 184 F.3d at 1036-37. The petitioner herself was

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personally insulted and threatened by her Armenian neighbors. Significantly, the
petitioner was able to explain with certainty why her family was singled out for
persecution; namely, the Kurdish-Moslem intelligentsia was viewed as an enemy
of the Armenian nation. Id. Here, in contrast, the petitioner herself suffered no
threats or insults; there is no evidence that her family members were targeted
because of their political views, or that the events were even related; and at least
one other member of Lopez’s family with the same political affiliation lives in
Guatemala unharmed.
In sum, there is no error in the BIA’s determination that Lopez does not have
an objectively reasonably fear of future persecution.
Because the BIA correctly determined that Lopez failed to demonstrate past
persecution or a reasonable fear of future persecution, this Court affirms the BIA’s
denial of Lopez’s asylum claim.
PETITION DENIED.

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Lopez v. Holder, No. 09-73391
PREGERSON, Circuit Judge, dissenting:
I respectfully dissent. I agree that Lopez failed to demonstrate past
persecution in Guatemala. But she did present compelling evidence of a well-
founded fear of future persecution because of her political opinion. Accordingly, I
would GRANT her petition to overturn the BIA’s denial of asylum and REMAND.
Lopez’s father, Herman Lopez Chapeton, was active in the Christian
Democracy Party, where he rose to the position of General Secretary. Lopez was
also active in the Christian Democracy Party, where she served as its Queen and as
its Organizational Secretary.
In 1995, Lopez’s father warned her that she was at risk as long as she stayed
in Guatemala. Within months of the warning, Lopez’s father was stabbed and bled
to death in Guatemala. Two of Lopez’s cousins, also involved in the Christian
Democracy Party, were subsequently murdered in Guatemala: one was shot and
killed in 1997, and the other was stabbed to death and his corpse burned in 2004.
The Guatemalan police failed to find the culprits responsible for the
murders. Although it is unclear from the record whether the Guatemalan
government is unable or unwilling to investigate these murders, Lopez believes
that all three murders were connected to her family’s political activity and, in
particular, to her father’s prominence within the Christian Democracy Party.
FILED
JUN 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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Lopez testified that “[t]here are still people who can still remember my father[,] so
my cousins were killed in 1997 and the other one in 2004.”
An asylum applicant “satisfies the subjective component [of a well-founded
fear of future persecution] by credibly testifying that she genuinely fears
persecution.” Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998). The IJ made
no finding on whether Lopez’s fear was subjectively genuine. Neither the IJ nor
the BIA made an adverse credibility finding. “[G]iven the absence of an adverse
credibility finding by the BIA we must assume that [Lopez’s] factual contentions
are true.” Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000).
Lopez left Guatemala within weeks of receiving her father’s warning that
she was “at risk.” She has not returned. Lopez testified that she was afraid to
return to Guatemala because she feared that she might be killed like her father and
cousins. These facts require us to conclude that Lopez subjectively fears
persecution in Guatemala.
To satisfy the objective component of a well-founded fear of future
persecution, an applicant need not show that “she would be singled out
individually for persecution” if she can establish a “pattern or practice” of
“persecution of a group of persons similarly situated to [her] on account of . . .
political opinion,” and if she also establishes “her own inclusion in, and
identification with, such group . . . .” 8 C.F.R. § 208.13(b)(2)(iii); Mgoian v. INS,
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184 F.3d 1029, 1035 (9th Cir. 1999) (finding that a high-profile family can qualify
as a persecuted group to establish objective fear).
In Mgoian v. INS, we found that the petitioner’s fear of future persecution
was objectively reasonable because “many of her closest relatives had been the
victims of direct, and even deadly, attacks,” resulting in the death of one of her
uncles. Mgoian, 184 F.3d at 1033. The perpetrators of those attacks were never
identified, largely because of the government’s “failure to pursue an investigation,”
which the court found was evidence of the government’s inability or unwillingness
to protect Mgoian’s family from persecution. Id. at 1036. This established a
“pattern or practice” of persecution of Mgoian’s family, even though Mgoian
personally did not receive any threats. Id. at 1035. Mgoian was similarly situated
to her family members who were attacked, as one of the “immediate members of a
certain family,” and also because they were all members “of the Kurdish-Moslem
intelligentsia.” Id. at 1036. Accordingly, the harm to Mgoian’s family was part of
a “pattern of persecution” rather than “isolated violence.” Id.
Like Mgoian, Lopez has provided compelling evidence of an objectively
reasonable fear of persecution. “[M]any of [Lopez’s] closest relatives [have] been
the victims of direct, and even deadly, attacks.” Mgoian, 184 F.3d at 1033. Lopez
attributes all three murders to her family’s political activity with the Christian
Democracy Party, particularly her father’s former role as General Secretary of the
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party. Lopez’s leadership positions—as Queen and as Organizational
Secretary—demonstrate that she is “similarly situated” to those in her family who
were active in the Christian Democracy Party and were murdered.
Lopez also expressed her belief that, despite being unable to identify exactly
who killed her family members or why, the culprits were motivated by her father’s
and cousins’ membership in the Christian Democracy Party. This also establishes
that the persecution of Lopez’s family is on account of their political opinion.
Moreover, Lopez is unable to identify who killed her family members because the
Guatemalan police have failed to arrest or identify those responsible. Lopez, like
Mgoian, should not be penalized for the government’s inability or unwillingness to
investigate these crimes and bring their perpetrators to justice. Mgoian, 184 F.3d
at 1036.
In finding that Lopez has not provided circumstantial evidence of motive,
the BIA and the majority ask for more than the law requires of an asylum
applicant. An applicant need only provide “some evidence” of the motive of the
agent of persecution, either “direct or circumstantial.” INS v. Elias-Zacarias, 502
U.S. 478 (1992). Lopez has provided circumstantial evidence of her persecutor’s
motives based on political opinion—her father was murdered within months of his
warning to Lopez—which is all she must provide. See Sinha v. Holder, 556 F.3d
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774, 780 (9th Cir. 2009) (finding evidence of an attack’s context sufficient
circumstantial evidence of motivation).
The BIA and the majority also found Lopez’s claim of objective fear
weakened by the fact that her mother, who was Secretary Adjunct of the Christian
Democracy Party, continues to live in Guatemala and has not been harmed. That
Lopez’s mother has not been harmed does not mean that Lopez herself faces no
risk of persecution. The circumstance of similarly-situated relatives who are
harmed “bolsters” a petitioner’s claim of a well-founded fear of future persecution.
See Sinha, 564 F.3d at 1022. Bear in mind that three of Lopez’s family members
have suffered the most irreparable harm of all: death. Lopez’s three family
members who were killed were also similarly situated to her, as fellow members of
the Christian Democracy Party.
Even if Lopez faces a ten percent chance of harm, she may have a well-
founded fear of being persecuted. INS v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987) (“There is simply no room . . . for concluding that because an applicant only
has a 10% chance of being . . . persecuted, that he or she has no ‘well-founded
fear.’”). Lopez need not offer “proof that persecution is more likely than not.” Al-
Harbi, 242 F.3d at 888 (citing Cardoza-Fonseca, 480 U.S. at 431). Instead, she
must demonstrate only that a reasonable person in her situation would fear
persecution in Guatemala.
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Because Lopez demonstrated a well-founded fear of future persecution in
Guatemala on account of her family’s political activity with the Christian
Democracy Party, her case should be remanded to the BIA for an exercise of the
Attorney General’s discretion to determine whether Lopez should be granted
asylum.
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