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asylum
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Escobedo Marquez v. Barr

Facts

Gabriela Escobedo Marquez and her daughter Diana applied for admission into the United States at the California border in September 2015. After the Department of Homeland Security initiated removal proceedings, Escobedo Marquez applied for asylum based on threats she received due to her sexual orientation. She testified about receiving written threats of physical harm to herself and her children, which left her frightened. Despite these threats, she remained in Mexico for several months without further incident.

Escobedo Marquez and her daughter Diana (12 years old at the time) applied for admission into the United States at the California border in September 2015. The next day the Department of Homeland Security initiated removal proceedings, and, at a hearing two months later, Escobedo Marquez conceded their removability under 8 U.S.C. 1182(a)(7)(A). She then applied for asylum and withholding of removal based on threats she had received because of her sexual orientation and her belief that she could not live as an openly gay woman in Mexico without being persecuted.

Issue

Did the threats received by Escobedo Marquez constitute persecution under the Immigration and Nationality Act, and did she establish a well-founded fear of future persecution?

Did the threats received by Escobedo Marquez constitute persecution under the Immigration and Nationality Act, and did she establish a well-founded fear of future persecution?

Rule

Persecution can be shown by 'nonphysical harm' of a gravity equivalent to 'significant physical force against a person's body,' but threats alone can compel a finding of persecution only in the most extreme circumstances.

True, persecution can be shown by 'nonphysical harm' of a gravity equivalent to 'significant physical force against a person's body,' Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011), but threats alone can compel a finding of persecution 'only in the most extreme circumstances, such as where they are of a most immediate or menacing nature or if the perpetrators attempt to follow through on the threat[s],' Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006).

Analysis

The court applied the rule by examining the nature of the threats received by Escobedo Marquez. It concluded that the threats, while unsettling, did not describe sufficiently grave harm to compel a finding of past persecution. The court noted that she was not physically harmed and that there was no evidence suggesting the sender attempted to follow through on the threats. Additionally, the court found that the threats stemmed from a personal dispute rather than her sexual orientation.

Substantial evidence supports the Board's conclusion that the threats were not so extreme as to constitute persecution. True, persecution can be shown by 'nonphysical harm' of a gravity equivalent to 'significant physical force against a person's body,' Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011), but threats alone can compel a finding of persecution 'only in the most extreme circumstances, such as where they are of a most immediate or menacing nature or if the perpetrators attempt to follow through on the threat[s],' Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006). The five anonymous threats described by Escobedo Marquezas unsettling as they aredo not describe sufficiently grave harm that would compel a finding of past persecution. She was not physically harmed, and no evidence suggests that the sender attempted to follow through on the threats.

Conclusion

The court denied the petition for review, affirming the Board's conclusion that the threats did not constitute persecution and that Escobedo Marquez did not establish a well-founded fear of future persecution.

For these reasons, we DENY the petition for review.

Who won?

The government prevailed in the case because the court found substantial evidence supporting the Board's conclusion that the threats did not rise to the level of persecution.

The government prevailed in the case because the court found substantial evidence supporting the Board's conclusion that the threats did not rise to the level of persecution.

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