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Martinez-Perez v. Sessions

United States Court of Appeals, First Circuit

July 24, 2018

BLANCA LIDIA MARTINEZ-PEREZ, Petitioner,
v.
JEFFERSON B. SESSIONS, III, UNITED STATES ATTORNEY GENERAL, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Carlos E. Estrada, Ashley M. Edens and Estrada Law Office, on brief for petitioner.

          Michael C. Heyse, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and May Jane Candaux, Assistant Director, on brief for respondent.

          Before Thompson, Selya, and Kayatta, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE.

         Petitioner Blanca Lidia Martínez-Pérez (Martínez-Pérez) seeks judicial review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of her applications for asylum, withholding of removal, and withholding of removal under the Convention Against Torture (CAT). Martínez-Pérez argues that the BIA erred by affirming the Immigration Judge's (IJ) conclusion that she did not qualify for asylum, withholding of removal, or any other basis for relief based on her mistreatment in Honduras because of her Afro-Honduran race and physical disability caused by polio, and furthermore that the IJ violated her due process rights. Before looking at the challenges Martínez-Pérez has raised here, we will run through the circumstances of Martínez-Pérez's journey to the United States, her life in Honduras and the circumstances that led her to come to the United States, and the prior proceedings that brought her before this court.[1]

         A. BACKGROUND

         1. Facts and Circumstances

         Martínez-Pérez was born in 1976 in Honduras. By the age of one she was diagnosed with polio, after which her mother gave Martínez-Pérez to her uncle, who in turn left her at an orphanage in Tegucigalpa, the capital of Honduras. Because of her childhood polio, Martínez-Pérez walks with a limp. She was harassed by staff and other children in the orphanage throughout her entire childhood, and was sometimes called names relating to her disability. She dropped out of school after the sixth grade.

         Martínez-Pérez ultimately left the orphanage at age eighteen and moved to a town called Sambo Creek, about six hours north of Tegucigalpa. Tegucigalpa and Sambo Creek are the only two places Martínez-Pérez lived in Honduras. As an adult, Martínez-Pérez continued to experience general mistreatment based on her disability and race. She recalled being verbally harassed by strangers on the street. She also had difficulty finding a job, and supported herself by working as a babysitter for a friend. After three incidents in 2014 in which she heard someone threaten her life, had a bottle thrown at her, and survived a home invasion, all of which we'll get to later, Martínez-Pérez decided to leave Honduras and travel to the United States.

         Martínez-Pérez entered the United States on foot, having broken her foot in transit, near Brownsville, Texas, on or about June 7, 2014. While in custody, she received medical attention for her foot and an asylum officer conducted a credible fear interview with her for her asylum claim, finding that there was a significant possibility that she could prevail on an asylum claim at a full hearing. She remained in custody and was transferred to Louisiana, where she was served with a notice to appear on July 23, 2014, which began the removal proceedings against her. She was then released on bond in August 2014. Between 2014 and 2016, when Martínez-Pérez ultimately was able to secure counsel and have a hearing on her application for asylum, the case was continued multiple times and ultimately venue was transferred from Louisiana to Boston.[2]

         2. The IJ Hearing

         At her asylum hearing before the IJ, Martínez-Pérez's claims for (i) asylum, (ii) withholding of removal, and (iii) withholding of removal under the CAT were principally supported by her testimony about three experiences of harassment or threat of assault that she argued were past persecution, and thus also supported her well-founded fear of future persecution if she returned to Honduras.[3] First, Martínez-Pérez described an incident in February 2014 when a stranger broke into her room at night. The intruder tried to attack her but ran away when she screamed. She believes the intruder targeted her and wanted to sexually assault her because of her disability. The intruder never spoke to her. Because she was afraid that the intruder would come back, or hurt her when released from custody, she did not file a complaint with the police.

         The last two incidents relate to a single person, a man named Charlie who harassed her on multiple occasions in Sambo Creek. She encountered Charlie once a month over the course of a year. For the most part, Charlie made offensive comments about Martínez-Pérez's limp. But one time, Charlie escalated by threatening to throw her off a bridge, but said he wouldn't because she was carrying her friend's baby. Another time in April 2014, he physically threatened her, throwing a bottle at her that hit her feet and calling her "renca," which means ...


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