Moussa Diallo v. Eric H. Holder, Jr.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1940
___________________________
Primitivo Alavez-Hernandez,
also known as Primitivo Alvaez-Hernandez,
also known as Jose Ortiz;
Ines Ruiz-Cruz,
also known as Maritza Solis-Padilla
lllllllllllllllllllllPetitioners
v.
Eric H. Holder, Jr., Attorney General
of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: October 17, 2012
Filed: May 8, 2013
____________
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
____________
BYE, Circuit Judge.

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Primitivo Alavez-Hernandez and Ines Ruiz-Cruz, married Mexican citizens,
petition for review of the denial of their applications for withholding of removal.
Once placed into removal proceedings, each conceded removability but applied for
withholding of removal. The immigration judge (IJ) denied the applications. The
Bureau of Immigration Appeals (BIA) dismissed Primitivo and Ines’s appeal of the
IJ’s denial. We deny review.
I
In 2006, the government placed Primitivo and Ines into removal proceedings.
Each conceded removability, but applied for withholding of removal. Primitivo and1
Ines both claimed they had been persecuted in Mexico for their religion, nationality,
and membership in a particular social group. They specifically alleged Catholics in
their home village of San Miguel Aloapam (the Village) had persecuted them,
believing they and their families were Evangelical Christians.
After seeing Primitivo’s and Ines’s fathers associating with Evangelical
Christians, Catholic villagers began threatening and attacking members of Primitivo’s
and Ines’s families in the streets of the Village. Those victims who had been unable
to escape the attacks suffered bruises and scratches or having their clothing torn
away. Pet’rs’ App. at 21-23, 59, 101. The local police refused to accept Ines’s
family’s attempts to report the attacks. Village Catholics also deprived Primitivo’s
and Ines’s families of access to basic necessities. They barred the families from
buying supplies in Village stores or using the local buses to travel to buy supplies.
Hr’g Tr. 42, 84-85. The Catholic villagers also arranged with the local authorities to
cut off water and power to the families’ homes.2
Neither applied for asylum.1
Both Primitivo’s and Ines’s families lived on small ranches near the Village2
on which they grew crops and raised animals primarily for their own consumption.
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Both families eventually left the Village. Primitivo’s family relocated directly
to Oaxaca City. Ines’s family moved first to their ranch, remaining there for at least
five months even though the ranch also lacked access to water and power. Hr’g Tr.
87-88. Ines’s family then relocated to Oaxaca City. After the families left the
Village, their land was seized and put to other uses. Hr’g Tr. 44-45, 107.
Primitivo and Ines also claimed their families’ ethnicity had caused them to live
in poverty in Oaxaca City. Both families are Zapotec and communicated primarily
in Zapoteca, speaking very little Spanish. Their limited ability to communicate in
Spanish significantly restricted their employment opportunities in Oaxaca City. Hr’g
Tr. 68-69, 88. Members of the families were, however, able to obtain employment,
and many continue to reside in Oaxaca City. Hr’g Tr. 59-60, 64-67, 97, 101-04.
Primitivo and Ines lived in Oaxaca City for approximately nine years. They
both joined and eventually married in an Evangelical Christian church there. No one
attacked Primitivo and Ines in Oaxaca City or interfered with their attempts to
worship as Evangelical Christians.
In 1997, Primitivo entered the United States without inspection in search of
work. Ines and the couple’s firstborn followed. They currently have four children,
one of whom has a respiratory condition which requires treatment with medication.
At the evidentiary hearing, the IJ heard the testimony of Primitivo, Ines, and
their expert witness, all of whom the IJ found to be credible. According to the expert
witness, Catholics control large sections of Mexico and discriminate against
Evangelical Christians, who are in the minority. Hr’g Tr. 121. In less populated
areas, the Catholic majority effectively has the authority to charge and kill
Evangelical Christians. Hr’g Tr. 121. In the larger cities like Oaxaca City, religious
Hr’g Tr. 39-40, 87. Ines’s family also had a small home in the Village. Hr’g Tr. 87.
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discrimination exists but is not as severe and Evangelical Christians can practice their
religion in large, well-established churches. Hr’g Tr. 123-24.
The IJ denied the applications for withholding of removal, concluding neither
the attacks in the Village nor the economic hardship in Oaxaca City had been severe
enough to constitute persecution. The IJ also concluded the couple could avoid any
threat of future persecution by relocating to Oaxaca City. Primitivo and Ines
appealed. The BIA agreed with the IJ’s conclusions but also considered the other
detrimental conditions in the Village, which it concluded had not constituted
persecution either. The BIA dismissed the appeal. Primitivo and Ines petitioned for
review.
II
We review a denial of an application for withholding of removal under the
substantial evidence standard. Mouawad v. Gonzales, 485 F.3d 405, 412 (8th Cir.
2007) (citing Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006)). “Where, as
here, the BIA adopts the IJ’s decision and adds its own reasoning, we review both
decisions together.” Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir. 2007)
(quoting Quomsieh v. Gonzales, 479 F.3d 602, 605 (8th Cir. 2007)). Under the
substantial evidence standard, “[t]he Board’s findings of fact will be disturbed only
if unsupported by substantial evidence.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th
Cir. 2004) (citing Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir. 2004)). “We
review the Board’s conclusions of law de novo, with substantial deference to its
interpretations of statutes and regulations administered by the agency.” Id. (citing
Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002)). We “will reverse the
decision [below] only if the record compels the conclusion that [the applicant]
qualified for withholding of removal.” Mouawad, 485 F.3d at 412 (citing Wijono,
439 F.3d at 872).
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“To qualify for withholding of removal, an applicant must show a clear
probability that his or her life or freedom would be threatened in the proposed country
of removal on account of race, religion, nationality, membership in a particular social
group, or political opinion.” Id. at 411 (internal citations and quotation marks
omitted). “[T]he applicant may show past persecution on the basis of one of the
protected grounds listed above, thus creating a rebuttable presumption that his life or
freedom would be threatened upon removal.” Id. at 411-12 (citing 8 C.F.R.
§ 1208.16(b)(1)). In the alternative, the applicant may show “‘it is more likely than
not that he or she would be persecuted’ upon removal based upon one of the protected
grounds. . . .” Id. at 412 (quoting 8 C.F.R. § 1208.16(b)(2)).
Primitivo and Ines first contend the BIA erred in concluding the conditions in
Mexico had not been severe enough to constitute past persecution. This is a question
of law we review de novo. See Cubillos v. Holder, 565 F.3d 1054, 1058-59 (8th Cir.
2009) (“The BIA made a legal conclusion as to whether the record facts established
persecution.”).
The IJ and the BIA concluded the physical attacks in the Village had not been
severe enough to rise to the level of persecution because the attacks had not been life
threatening. We agree. Persecution “is an extreme concept that excludes low-level
intimidation and harassment.” Bracic v. Holder, 603 F.3d 1027, 1034 (8th Cir. 2010)
(quoting Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007)). There is no
evidence the attacks in the Village ever threatened the victims’ lives. In fact, there
is no evidence the attacks resulted in any injury more life threatening than bruises and
scratches or the victim having his or her clothing forcibly removed.
The BIA also concluded the other detrimental conditions in the Village had not
been severe enough to constitute persecution. The BIA acknowledged Primitivo and
Ines had been “beaten, threatened, denied of basic services such as water and
electricity, deprived of food, access to land, and housing in their hometown.” Pet’rs’
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Add. at 2. The BIA then noted Primitivo and Ines “however had other sources
(although not steady) of income and housing (albeit not preferable) available once
they moved to Oaxaca City.” Pet’rs’ Add. at 2. In support of its reasoning, the BIA
cited Ahmed v. Ashcroft, 396 F.3d 1011, 1014 (8th Cir. 2005), for the proposition
that “economic discrimination [is] not sufficiently harsh to constitute a threat to life
or freedom where private employment [is] available.” Pet’rs’ Add. at 2. We do not
read Ahmed to hold the availability of housing and employment in one place may
lessen the severity of an applicant having been deprived of food, water, electricity,
and access to land in another. Ahmed holds merely that proof an applicant’s3
government decided to allocate public jobs by geographic region, without more, is
insufficient to establish economic persecution. Ahmed, 396 F.3d at 1013.
Notwithstanding the BIA’s flawed reasoning, the record weighs against
concluding the conditions in the Village were severe enough to constitute
persecution. In this circuit, we require detrimental conditions be severe enough to
threaten an applicant’s life or freedom before they will constitute persecution. See
Beck v. Mukasey, 527 F.3d 737, 740 (8th Cir. 2008) (economic restrictions can
constitute persecution if severe enough to constitute a real threat to life or freedom).
At the evidentiary hearing, Ines testified her family lived on their ranch for at least
five months, even though the ranch lacked access to food, water, and electricity, the
same basic necessities denied to them in the Village. Hr’g Tr. 87-88. The length of
time Ines’s family was able to live on the ranch without access to the same necessities
they had been deprived of in the Village indicates the deprivation had not been severe
enough to be life threatening. Nor is there any evidence being deprived of basic
necessities made the attacks severe enough to be life threatening. See Ngengwe v.
Mukasey, 543 F.3d 1029, 1037 (8th Cir. 2008) (finding as error the failure to consider
Because we conclude the BIA’s reasoning does not support its conclusion3
regarding past persecution, we need not consider the argument the BIA’s reasoning
erroneously conflated the analysis of past persecution with that of reasonable
relocation.
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the cumulative severity of alleged events) (citation omitted). Accordingly, Primitivo
and Ines have not proven the conditions in the Village rose to the level of persecution,
even when the conditions there are viewed together with the street attacks.
In addition, even assuming for the sake of argument Primitivo and Ines had
proven they had suffered past persecution in the Village, they would still not be
entitled to withholding of removal. An applicant is precluded from proving a threat
of future persecution by a finding the applicant can reasonably relocate within the
country to avoid it. 8 C.F.R. §§ 1208.16(b)(1)(B), 1208.16(b)(2). The BIA
concluded Primitivo and Ines could avoid any future persecution in Mexico by
relocating to Oaxaca City. We agree. According to Primitivo and Ines’s expert’s
testimony, the religious discrimination in Mexico is not as severe in urban areas like
Oaxaca City as it is in the Catholic dominated rural regions. Hr’g Tr. 121, 123-24.
The nine years in which Primitivo and Ines were able to live in Oaxaca City without
being attacked and without interference in their choice to worship as Evangelical
Christians also supports this finding.
Finally, Primitivo and Ines contend relocation to Oaxaca City would not be
reasonable. The BIA concluded relocation to Oaxaca City would be reasonable
because the conditions there do not constitute persecution. Whether relocation is
reasonable, however, is guided not by whether the applicant would face persecution
at the proposed area of relocation but whether the applicant would be subject to the
threat of other serious harm there. 8 C.F.R. § 208.16(b)(3) (emphasis added).
Primitivo and Ines argue they would suffer significant hardship in Oaxaca City
because they have no savings, they would have limited employment opportunities,
and they fear they would be unable to obtain needed medicine for their daughter
there. The arguments regarding Primitivo and Ines’s lack of savings and the limited
employment opportunities in Oaxaca City are unpersuasive. The record indicates
Primitivo’s and Ines’s families first relocated to Oaxaca City with a similar lack of
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financial resources but that members of their families have since made lives for
themselves and continue to reside there. Hr’g Tr. 42-43, 59-60, 88-92, 101-04. In
addition, the assertion they will have limited employment opportunities is based in
part on their previous experiences in Oaxaca City, when it was the inability to
communicate in Spanish which limited Primitivo’s and Ines’s employment options.
However, each demonstrated by testifying in Spanish at the evidentiary hearing that
their ability to speak Spanish has grown significantly since they left Mexico. Finally,
Primitivo and Ines only speculate that the medicine for their daughter’s respiratory
condition is not available in Oaxaca City. Such speculation is not enough to
overcome the evidence that members of Primitivo’s and Ines’s families have been
able to establish lives there. For Primitivo and Ines to relocate to Oaxaca City to
avoid possible persecution as Evangelical Christians in other parts of Mexico would
be reasonable.4
Based on the foregoing, we cannot conclude that the record compels a finding
that Primitivo and Ines are eligible for withholding of removal.
III
The petition for review is denied.
______________________________
Because we conclude Primitivo could reasonably relocate to avoid any future4
persecution in Mexico, we need not review the BIA’s determination that Primitivo
and Ines failed to prove the existence of a threat of future persecution there.
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