NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0409n.06
No. 17-3995
FILED
UNITED STATES COURT OF APPEALS Aug 15, 2018
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
DINA ENEIRA BETANCOURT-APLICANO and )
DOMINIC MONSERRATH LOPEZ- )
BETANCOURT, )
)
Petitioners, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS III, United States ) APPEALS
Attorney General, )
)
Respondent. )
BEFORE: BOGGS, CLAY, and ROGERS, Circuit Judges.
BOGGS, Circuit Judge. Two citizens of Honduras, Dina Betancourt-Aplicano and her
minor daughter Dominic Lopez-Betancourt, petition for review of the BIA’s denial of their
applications for asylum and withholding of removal. For the reasons set forth below, we deny the
petition for review.
I
A. Factual Background
Dina Betancourt-Aplicano is a citizen of Honduras. Beginning in January 2012, she earned
a living by selling home-cooked meals door-to-door two or three times per week to her neighbors
and to spectators at local soccer games. She typically traveled by bicycle or foot in the late
No. 17-3995, Betancourt-Aplicano v. Sessions
afternoon and returned home between 6:00 p.m. and 8:00 p.m. When she began selling food,
Betancourt-Aplicano was pregnant with her daughter, Dominic Lopez-Betancourt.
In approximately February 2012, two men approached Betancourt-Aplicano on her way
home and demanded that she give them her money. She initially refused, but one of the men
brandished a knife and forcibly took money from her. During the next year-and-a-half, Betancourt-
Aplicano was robbed at knifepoint or gunpoint between eight and twelve times per month, by a
rotating set of two men from a group comprised of approximately ten men.1 Betancourt-Aplicano
was never physically injured, but the robbers would either forcibly take her money or threaten her
if she did not voluntarily turn over her money. Generally, the robbers would take only a portion
of her money.
In May 2012, Betancourt-Aplicano gave birth to her daughter and the robbers occasionally
told Betancourt-Aplicano that they would harm her daughter if Betancourt-Aplicano refused to
surrender the money. As a result, Betancourt-Aplicano enlisted the help of a relative and a friend
to watch her daughter while Betancourt-Aplicano was out selling food. There is no evidence on
the record to suggest that her daughter was ever physically harmed by the robbers. During the
hearing before the immigration judge, Betancourt-Aplicano presented testimony from two
Honduran witnesses, one male and one female, who explained that they were also robbed
periodically.
Betancourt-Aplicano testified that she could have recognized and identified the robbers to
police. However, she chose not to contact the police because she was afraid and believed that the
police would be ineffective.
1
During the proceeding in front of the immigration judge, it appears that Betancourt-Aplicano’s attorney misstated
the range as “so, that’s anywhere between eight and twenty-four times a month. Is that correct?” However, Betancourt-
Aplicano had testified that she sold food two or three times per week and was robbed almost every time, totaling eight
to twelve robberies per month.
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Before she began her food-selling business, Betancourt-Aplicano had been a domestic
employee. She did not receive any sort of threats, nor was she robbed, while employed as a
domestic worker. In addition to her income from selling food, Betancourt-Aplicano also
periodically received money from her daughter’s father.
Betancourt-Aplicano and her daughter arrived in the United States on May 27, 2014
without a valid visa.
A. Procedural Background
On August 13, 2014, the Department of Homeland Security began removal proceedings
against Betancourt-Aplicano and her daughter by filing Notices to Appear. The government
charged them with removability under the Immigration and Nationalization Act (INA)
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being aliens present in the United States without
having been admitted or paroled. Betancourt-Aplicano conceded her removability as charged, but
filed applications for asylum, withholding of removal, and Convention Against Torture (CAT)
protection for herself and her daughter.
Betancourt-Aplicano’s proffered social group was “single unprotected female business
owners out in the community selling food.” The daughter’s proffered social group was being the
child of someone who is being targeted for persecution. On October 19, 2016, the immigration
judge denied the applications for asylum, withholding of removal, and CAT protection.
Betancourt-Aplicano appealed the immigration judge’s decision to the Board of Immigration
Appeals (BIA). The BIA affirmed the IJ’s decision and issued a separate opinion. The BIA held
that Betancourt-Aplicano did not present a cognizable social group that she belonged to and failed
to establish a nexus between the harm that she experienced and her proffered social group. The
BIA assumed, without deciding, that the daughter may fall within a cognizable family-based social
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group but held that she was targeted “as a means of extorting money” from the mother rather than
intrinsically because of her family ties. The BIA held that Betancourt-Aplicano did not carry her
burden to establish that the mistreatment constituted “persecution” because the robbers were not
government actors and she did not prove that the government would have been wholly unwilling
or unable to assist in stopping them. The BIA also held that Betancourt-Aplicano failed to meet
the requirements to establish eligibility for Convention Against Torture protection. Betancourt-
Aplicano filed a petition for review, challenging only the BIA’s determination as to the asylum
and withholding-of-removal claims.
II
Where the BIA reviews the immigration judge’s decision and issues its own opinion, this
court reviews the BIA’s order as the final agency determination. Sanchez-Robles v. Lynch,
808 F.3d 688, 691–92 (6th Cir. 2015). However, if the BIA adopted the immigration judge’s
reasoning on a particular issue, we will also review the immigration judge’s decision. Id. at 692.
This court reviews questions of law de novo and reviews factual determinations under the
highly deferential substantial-evidence standard. Thus, the BIA’s factual determinations are
“conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
III
A. Asylum Claims
The decision whether to grant asylum is discretionary. See INA § 208(b)(1)(A), 8 U.S.C.
§ 1158(b)(1)(A). However, in order to be eligible for asylum, the applicant must establish that she
is a “refugee.” See INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is a person
“who is unable or unwilling to return to [her country] . . . because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a particular social
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group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
Not all social groups are cognizable for the purposes of the INA. The proffered social group
must be “(1) composed of members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237 (B.I.A. 2014); see Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir.
2015). In order to satisfy the particularity requirement, the group must be discrete and have
definable boundaries. Zaldana Menijar, 812 F.3d at 498. In order to satisfy the social distinction
requirement, the group must be perceived as a group by society, regardless of whether society can
identify the members of the group by sight. Ibid. While the question of whether a proffered social
group is cognizable is ultimately a question of law, Sanchez-Robles, 808 F.3d at 691, the factual
elements underlying that determination—whether the group is based on an immutable
characteristic, whether the group is defined with particularity, and whether the group is socially
distinct—are factual questions reviewed for substantial evidence. See Zaldana Menijar, 812 F.3d
at 498–99.
In addition to proffering a cognizable social group, the applicant must satisfy the nexus
requirement. Applicants must show that membership in the social group or protected class “was
or will be at least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i),
8 U.S.C. § 1158(b)(1)(B)(i); see Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010).
The asylum applicant bears the burden to establish that she meets the definition of a refugee. INA
§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).
i. Betancourt-Aplicano’s Asylum Claim
Betancourt-Aplicano’s proffered social group of “single unprotected female business
owners out in the community selling food” is not cognizable because it is neither immutable nor
socially distinct. Betancourt-Aplicano’s status as a food-selling business owner is not immutable.
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After all, Betancourt-Aplicano previously had a different occupation, working as a domestic
employee, and she did not testify that her current occupation was somehow fundamental to her
identity. See Castro-Paz v. Holder, 375 F. App’x 586, 590 (6th Cir. 2010) (holding that the
proffered social group “lack[ed] an immutable characteristic because [he] could change jobs and
the concept of a refugee simply does not guarantee an individual a right to work in the job of his
choice” (internal quotation marks omitted)). In her brief, Betancourt-Aplicano argues that it would
be “virtually impossible” for her to change occupations because of her limited education and the
low income she is likely to earn as a domestic employee. However, the evidence submitted by
Betancourt-Aplicano does not compel the conclusion that it is virtually impossible for her to find
alternative work.
Second, Betancourt-Aplicano did not provide any evidence that the category of “single
unprotected female business owners out in the community selling food” is recognized in Honduras
as somehow “set apart, or distinct, from other persons within the society in some significant way.”
See Matter of M-E-V-G-, 26 I. & N. Dec. at 238. Instead, substantial evidence supports the
conclusion that opportunistic robbers target anyone with wealth and that the robbers do not treat
this proffered group as being distinct. Betancourt-Aplicano conceded as much when she testified
that she believed that the robbers broadly target people who “work[]” or “people [the robbers] have
felt are doing well.” Betancourt-Aplicano argues that it is a “fair inference” from the testimony
that these gangs target women more frequently in order to bolster the gang members’ feeling of
“machismo.” However, that does not compel the conclusion that the category of “single
unprotected female business owners out in the community selling food” is socially distinct.
Substantial evidence supports the BIA’s conclusions that Betancourt-Aplicano’s proffered
social group was neither immutable nor socially distinct. As in similar Sixth Circuit cases,
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Betancourt-Aplicano’s proffered social group is not cognizable under the INA. An applicant’s
perceived wealth or access to money does not constitute membership in a cognizable social group.
See Sanchez-Robles, 808 F.3d at 692 (rejecting a claimed social group of “persons who are
perceived to have money or access to money due to having spent a significant amount of time in
and having familial ties to the United States”). And more specifically, this court has held that a
social group defined as “upwardly mobile women trying to build a better life through business” is
not cognizable. Mendez v. Sessions No. 17-3148, 2017 U.S. App. LEXIS 22256, at *1 (6th Cir.
Nov. 6, 2017).
Betancourt-Aplicano attempts to distinguish these cases by arguing that her claimed social
group is more narrowly drawn than the above examples and by emphasizing that the IJ found her
testimony to be credible. However, while “upwardly mobile women trying to build a better life
through business” (which failed in Mendez) may technically be broader than Betancourt-
Aplicano’s “single unprotected female business owners out in the community selling food,” this
appears to be a distinction without a difference. That Betancourt-Aplicano’s proffered social
group is more narrowly defined than groups that this court has previously rejected does not mean
that this group is cognizable. In neither case did the applicant carry the burden of establishing that
the proffered group was socially distinct. And that the IJ concluded that Betancourt-Aplicano was
sincere about the mistreatment that she endured does not relate to the question of her membership
in a cognizable social group.
Because Betancourt-Aplicano has failed to proffer a cognizable social group, she failed to
meet her burden to establish eligibility for asylum.
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ii. The Asylum Claim of Betancourt-Aplicano’s Daughter
The proffered social group for Betancourt-Aplicano’s daughter’s application was the
daughter or relative of someone who is being targeted for persecution. The BIA did not analyze
whether this group would satisfy the immutability requirement (which of course it would), the
particularity requirement, and the social distinctiveness requirement to be a cognizable social
group. Instead, the BIA assumed without deciding that Betancourt-Aplicano’s minor daughter
could conceivably fall within a family-based social group as a member of the Betancourt-Aplicano
family. [[AR at 5]] See Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009). But even so,
the BIA concluded that the daughter failed to satisfy the nexus requirement.
Substantial evidence supports the BIA’s conclusion that the daughter was inferentially
threatened by the robbers merely as a “means of extorting money” from Betancourt-Aplicano. The
daughter’s name was only ever mentioned in conjunction with the robbers’ demands for money
from Betancourt-Aplicano. And where threats made against a family member are simply “a means
to achieve the [robbers’] objective to increase [their] profits,” there is no nexus. Matter Of L-E-
A-, 27 I. & N. Dec. 40, 46–47 (B.I.A. 2017). Thus, even if Betancourt-Aplicano’s daughter offered
a cognizable family-based social group, she failed to satisfy the nexus requirement to establish
eligibility for asylum.
The lack of a cognizable social group in Betancourt-Aplicano’s application and the failure
to demonstrate a nexus in the minor daughter’s application are dispositive of their asylum
applications. As a result, we decline to analyze whether the mistreatment committed by private
actors, without Betancourt-Aplicano ever seeking police or government assistance, qualifies as
“persecution,” in light of the requirement that persecution be perpetrated by the government or by
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a group that the government is unable or unwilling to control. See Khalili v. Holder, 557 F.3d 429,
436 (6th Cir. 2009).
B. Withholding of Removal Claims
A withholding-of-removal claim is analyzed similarly to an asylum claim but requires the
applicant to meet a more stringent standard. See Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009).
The applicant bears the burden of demonstrating that it is more likely than not that her “life or
freedom would be threatened” because of her race, religion, nationality, membership in a particular
social group, or political opinion, if she returned to her home country. Ibid.; see INA §
241(b)(3)(A), 8 U.S.C. §1231(b)(3)(A)). We have interpreted the “life or freedom would be
threatened” language to require that the applicant demonstrate that he or she will be persecuted.
See Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006).
Because Betancourt-Aplicano’s claimed social group is not cognizable, her withholding-
of-removal claim necessarily fails. Similarly, for the reasons described above, the daughter has
not established that it is more likely than not that she would be persecuted because of her proffered
social group.
CONCLUSION
For the foregoing reasons, we DENY the petition for review.
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