Yusleidy Del Carmen Martinez Morillo, her husband, and their minor son, all natives and citizens of Venezuela, sought asylum, withholding of removal, and relief under the Convention Against Torture. They appealed a Board of Immigration Appeals decision that dismissed their appeal of an immigration judge's order denying their applications. The petitioners argued they faced persecution due to their political opinions and membership in a particular social group, specifically anti-government protesters. The immigration judge and the BIA denied relief, finding that the petitioners did not demonstrate past persecution or a well-founded fear of future persecution. The petitioners then filed a petition for review in the Ninth Circuit.
The Ninth Circuit applied the substantial evidence standard, which requires upholding the agency's determination unless the evidence compels a contrary conclusion. The court first addressed the claim of past persecution. It noted that persecution is an extreme concept requiring more than discrimination or harassment. The record showed that while Martinez attended protests and was confronted by community council members, she suffered no physical violence or injuries. The threats made were vague and led to no harm. Furthermore, neither Martinez nor her family members were detained or harmed. Because she failed to establish past persecution, she was not entitled to a rebuttable presumption of future persecution. The court also found no error in the agency's conclusion that she did not face an objectively reasonable possibility of future persecution. The petitioners failed to show an individualized risk or a pattern of persecution against similarly situated individuals. The court rejected the argument that Martinez belonged to a disfavored group, noting that the agency's analysis was sufficient and that the record did not compel a finding of a pattern or practice of persecution. Regarding Convention Against Torture relief, the court found no evidence that the Venezuelan government would likely torture her or acquiesce in such torture. Judge Paez, in a partial concurrence and partial dissent, agreed with the majority on the lack of past persecution and CAT relief but dissented on the disfavored group analysis. He argued that the agency failed to conduct a proper correlational analysis between the group-level risk of persecution for anti-government protesters and Martinez's individual risk. Judge Paez contended that even with a lower individual risk, the heightened group risk could support a claim of well-founded fear, and the agency's failure to weigh these factors constituted legal error.
The underlying immigration orders denying all forms of relief remain in effect. The petition for review is denied, and the temporary stay of removal remains in place until the mandate issues. The decision reinforces the high bar for establishing asylum claims based on protest attendance without specific threats or physical harm, while leaving open the doctrinal question of how strictly the correlational analysis for disfavored groups must be applied in cases with heightened group risk.
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