Urbina-Dore v. Holder, No. 13-1679 (7th Cir. 2013)

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Petitioners applied for asylum in the U.S., claiming that they had been persecuted as members of the “social group” of timberlands owners and would face risks if returned to Honduras. Organized squatters, “La Via Campesina,” invade agricultural lands and take over production; if they raise the national flag and assert that owners are not using the land, police and judges are unwilling to evict them. Timber lands remain out of production for years while trees mature, making them targets for campesinos, who cut and sell the timber. Petitioners assert that campesinos occupied their land in 2008 and that they fear for their lives should they return to assert ownership rights. An immigration judge denied asylum, finding (under 8 U.S.C. 1101(a)(42)(A)) that the past and feared future harm do not amount to persecution; that the squatters’ acts did not occur because of petitioners’ membership in any particular group but were for profit, with indifference to who was injured; and that the squatters’ acts could not be imputed to the government. The BIA concluded that the campesinos are thieves whose own interests, rather than antipathy toward petitioners, led to the invasion and that Honduras is willing and able to control the campesinos; after petitioners obtained a court order, officers did remove the squatters. The Seventh Circuit denied a petition for review.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13- 1679 REYNA LIZZETTE URBINA- DORE, et al., Petitioners, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals ____________________ ARGUED OCTOBER 8, 2013 DECIDED NOVEMBER 18, 2013 ____________________ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. EASTERBROOK, Circuit Judge. Petitioners are citizens of Honduras. They applied for asylum in the United States, contending that they had been persecuted as members of the social group of persons owning timberlands and would face more risks if returned to their native land. Organized squatters known internationally as La Via Campesina sup- ply the basis of their claim. Petitioners testified that Hondu- ran campesinos (who may or may not be affiliated with the No. 13- 1679 2 international movement) invade agricultural lands in force and take over production; if they raise the national flag and assert that owners are not using the land, police and judges are unwilling to evict them. Timber- bearing lands may re- main out of production for many years while trees mature. This makes them targets for campesinos, who cut and sell the timber. Petitioners assert that campesinos occupied their land in 2008 and that they fear for their lives should they re- turn to assert their rights as the lawful owners. An immigration judge denied the request for asylum on three grounds: (1) that the past and feared future harm do not amount to persecution; (2) that the squatters acts did not occur because of petitioners membership in any particular group but were instead done for profit and with indifference to who was injured as a result; and (3) that the squatters acts could not be imputed to the government. Each of these three grounds reflects an aspect of 8 U.S.C. §1101(a)(42)(A), the cornerstone of the asylum process. The statute permits federal officials to grant asylum to aliens who seek refuge here because of persecution or a well- founded fear of persecution on account of race, religion, na- tionality, membership in a particular social group, or politi- cal opinion . The IJ s first and third reasons both concern the definition of persecution , which differs from less serious travails of life (ground 1) and also entails governmental dis- crimination rather than private crime (ground 3). See Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005); Bitsin v. Holder, 719 F.3d 619, 628 31 (7th Cir. 2013). The second ground concerns the statutory causation requirement. Petitioners contested all three issues before the Board of Immigration Appeals, for an adverse decision on any one of 3 No. 13- 1679 the issues is conclusive against them. The BIA bypassed the first issue, as it was entitled to do, see INS v. Bagamasbad, 429 U.S. 24 (1976), and ruled against petitioners on the other two. As the Board saw matters, the record establishes that the campesinos are thieves whose own interests, rather than antipathy toward petitioners ownership, led to the orga- nized invasion of petitioners land. The Board added that, although a government s unwill- ingness or inability to control private misconduct can justify treating crime as persecution, Honduras is both willing and able to control the campesinos. Local police initially did not intervene, but petitioners hired a lawyer who obtained a court order requiring them to do so. A task force of 70 offic- ers then removed the squatters. Some returned but so did the police, who evicted them a second time. Petitioners con- tended that Honduras s legal system protects squatters who raise the national flag on other people s land, but the Board thought that actions speak more loudly than words and the police turned out in force to enforce the judge s eviction order. Petitioners say that they fear a repetition of the inva- sion; the Board thought that this would just lead to a repeti- tion of the eviction. The main questions in this court are or should have been whether substantial evidence supports the Board s conclusions that the campesinos did not act because of pe- titioners status as owners, and that at all events Honduras is both willing and able to protect landowners from campesin- os. Instead, however, petitioners devote almost all of their brief to the question whether owners of rural land, or of tim- ber- bearing land in particular, constitute a social group as the statute uses that term. Our decision in Cece v. Holder, No. No. 13- 1679 4 11- 1989 (7th Cir. Aug. 9, 2013) (en banc), reflects disagree- ment with the way the Board has applied that term, and it could well be that the approach in Cece would require the Board to recognize the sort of social group that petitioners propose. But how could a decision in petitioners favor on this subject help them? Some language in the immigration judge s decision expresses doubt about petitioners proposed social group, but it did not underpin the IJ s adverse deci- sion and for the sake of argument the Board assumed that petitioners belong to a cognizable social group. Petitioners and appellants need to address the issues on which they lost, and social group is not among them. Petitioners briefly mention the causation question (whether the campesinos acted because of petitioners status as landowners) and allude to the question whether Hondu- ras is unwilling or unable to control agricultural squatters, but they do not develop an argument on either subject. Peti- tioners say that the campesinos may return and that four of them were seen in 2009 wielding machetes near their land and were heard to threaten retaliation for the eviction. These events may explain why petitioners have hired a guard for their land and are uneasy about returning to Honduras, but they do not come to grips with the Board s conclusion that the government is both willing and able to control trespasses and other threats of misconduct by campesinos. The Board has used the unwilling or unable to control formula since 1964 yet has never attempted to quantify just how far a nation may depart from perfect law enforcement without being deemed complicit in private crimes. See Cece, slip op. 29 30 (separate opinion). Many places in the United States endure high levels of violence without any suggestion 5 No. 13- 1679 that the police and judiciary have abetted criminals in per- secution of persons whose property is stolen or whose lives are threatened. But we need not explore the subject here. Pe- titioners have not asked us to address it or explained why they think Honduras s demonstrated commitment to evict- ing their squatters is inadequate. We have not been given any reason to doubt that the Board s decision is supported by substantial evidence, so the petition for review is DENIED.

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