NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0436n.06
No. 16-4123 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LIDIA DIAZ-GONZALES and JANNETH SANCHEZ-DIAZ, Petitioners,

v. JEFFERSON B. SESSIONS III, U.S. Attorney General, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

BEFORE: ROGERS, COOK, an d STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. Lidia Diaz-Gonzales and her minor daughter Janneth Sanchez-Diaz, natives and citizens of Honduras, entered the United States without inspection in March 2015. In March 2016, an immi gration judge ordered that they be removed from the country after finding that Diaz-Gonzales had not met her burden of establishing past persecution or a well-founded fear of future persecution based on membership in a particular social group. The Board of Immigration Ap peals (BIA) dismissed their appeal, and DiazGonzales and Sanchez-Diaz now peti tion this court for review. Fo r the reasons set forth below,

we dismiss the petition for review.
I. BACKGROUND Diaz-Gonzales, her husband, and two daughter s—including Sanchez-Diaz—lived in El Negrito in the Yoro district of Honduras. Th e family ran small businesses out of their home, including a store that sold groc eries, medicine, and a limited me nu of prepared foods. In 2008,No. 16-4123, Diaz-Gonzales v. Sessions

- 2 - Diaz-Gonzales started having medical issues and was ultimately diagnosed with human immunodeficiency virus (HIV). Diaz-Gonzales r eceived treatment for her HIV, but experienced severe negative side effects from the treatment. She also faced discrimination in the community because of her diagnosis and believed that business at the store declined as a result, especially with respect to prepared foods that customer s regarded as “contaminated.” Due to the combination of decreased demand for prepared f oods and Diaz-Gonzales’s health challenges, the family stopped selling prepared foods. The family experienced other troubles as well. Diaz-Gonzales, her husband, and Sanchez-Diaz were at their home-based store in February 2011 when five armed persons entered and threatened the family and customers who were present. The r obbers took 30,000 Honduran lempiras (worth about $1,400 in U.S. Dollars). The incident was reported to the police who declined to conduct an investigation. In January 2013, two armed men confronted Diaz-Gonzales when she was alone at the store and demanded a monthly extortion fee of 20,000 lempiras per month. The men warned Diaz-Gonzales that they would ki ll her and rape her daughters if she told anyone, including her husband or the police, about the extortion. Diaz-Gon zales feared for her safety as well as that of her family, so she followed the extortionists’ commands by making monthly payments and keeping quiet. To keep up with the payments, Diaz-Gonzales had to procure loans from the bank—co-signed by her brother so her husband w ould not find out. The extortion ended in August 2014 when one of th e extortionists was kill ed. Out of fear, Diaz -Gonzales never reported the extortion scheme to the police. In December 2014, two armed men claiming to be members of the Mara 18 gang—a feared gang with a substantial pr esence in the nearby major city of San Pedro Sula—came to theNo. 16-4123, Diaz-Gonzales v. Sessions

- 3 - store and demanded money. The two men took 10,000 lempiras, which was all of the money on hand. Diaz-Gonzales reported the incident to the police, who la ughed and did not write a report. Following the December 2014 incident, Diaz-Gonzales told her husband about both the latest robbery and the earlier extortion scheme . The family decided that Diaz-Gonzales and Sanchez-Diaz should seek refuge in the United St ates. The two felt compelled to leave Honduras because of the extortion, plus discrimination agai nst those with HIV. Th ey paid $8,500 to guides to help them make the journey. After two weeks of travel, Diaz-Gonzales and Sanchez-Di az crossed into the United States near Hidalgo, Texas in March 2015. Th e two surrendered themselves to authorities because Sanchez-Diaz could no longer walk. They have since been residing in Michigan, where Diaz-Gonzales receives treatment for her HIV. Her treating physicia n reports that the medications she takes in the United States are mo re effective than what she took in Honduras and that her health “may be compromised should Mr s. Diaz-Gonzales have to return back to Honduras.” Diaz-Gonzales and Sanchez-Diaz appeared be fore an immigration judge in June 2015 and admitted to entering the United States with out lawful permission to do so. In October 2015, the two applied for asylum and withholding of removal. At a hearing, both testified about the violence and discrimination in Honduras. The IJ f ound them to be credible witnesses, but denied their application for failure to meet the le gal requirements for asylum and withholding of removal. Diaz-Gonzales and Sanchez-Diaz appealed to the BIA. The BIA pointed out that the petitioners had failed to establish a nexus betw een the discrimination and violence in Honduras and membership in a “particular social group” as required by the Immi gration and NationalityNo. 16-4123, Diaz-Gonzales v. Sessions

- 4 - Act (INA). The mother and daughter now timely petition this court for review of the BIA decision.
II. DISCUSSION We have jurisdiction under 8 U.S.C. § 1252(a) over appeals of final or ders of removal. We review the BIA’s decision as the final agency determination. Al-Ghorbani v. Holder , 585 F.3d 980, 991 (6th Cir. 2009). Conclusions of law are reviewed de novo a nd findings of fact are reviewed to determine whether they are supported by substa ntial evidence. Id

. For the court to grant relief through either asylum or wit hholding of remova l, petitioners must show that they are “refugees.” 8 U.S.C. § 1158(b)(1)(B)(i) (“burd en of proof is on the applicant to establish that the app licant is a refugee” for asylum); id . § 1231(b)(3)(C) (incorporating similar showing fo r withholding of removal). The INA defines a refugee as someone “who is unable or unwilling to return to [his or her native country] . . . because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular so cial group, or political opinion.” Id . § 1101(a)(42)(A). “Persecution entails punishment or the inflic tion of suffering or harm, but harassment or discrimination without more does not ri se to the level of persecution.” Ali v. Ashcroft , 366 F.3d 407, 410 (6th Cir. 2004) (quoting Mikhailevitch v. INS , 146 F.3d 384, 389-90 (6th Cir. 1998)). A particular social group is “a gr oup of persons all of whom shar e a common immutable . . . [and] fundamental characteristic that either cannot be changed or should not be required to be changed because it is fundamental to the members’ individual identities or consciences.” Khozhaynova v. Holder , 641 F.3d 187, 195 (6th Cir. 2011) (quoting Lugovyj v. Holder , 353 F. App’x 8, 10 (6th Cir. 2009)).No. 16-4123, Diaz-Gonzales v. Sessions

- 5 - A. Business Owners Subject to Extortion and Persecution In the proceedings below, Diaz-Gonzales clai med membership in the particular social group of business owners subject to extortion and pers ecution. (AR 14-18) The BIA determined that this group was “not cogni zable under the [INA] as it [was] impermissibly defined by the harm its members have suffered.” (AR 3) In Khozhaynova , we pointed out “tha t one’s status as a business owner who refuses to pay extortion de mands does not constitu te a protected social group.” 641 F.3d at 195 (citing Lugovyj , 353 F. App’x at 10; Jelkovski v. Ashcroft , 103 F. App’x 578, 579 (6th Cir. 2004)). Because Diaz-Gonzales does not pursue this argument on appeal, the issue is forfeited. Patel v. Gonzales , 470 F.3d 216, 219 (6th Cir. 2006). We note, however, that the unfortunate events that stem from Diaz -Gonzales’s status as a business owner are “insufficient to establish persecution on the basis of . . . a protected social group.” Khozhaynova , 641 F.3d at 195.
B. Persons Living with HIV Diaz-Gonzales now argues that she is a member of the particular social group of persons living with HIV. Based on the petitioners’ cred ible testimony, the IJ f ound that Diaz-Gonzales’s “HIV status was one of many reasons for the difficulty in running her business.” But the business also suffered from extortion and a ge neral economic downturn. The BIA concluded that Diaz-Gonzales established membership in the social group of those living with HIV and faced verbal harassment and a decline in busine ss because of it. But Diaz-Gonzales did not establish that she “experienced harm rising to the level of past persecutio n.” We agree with the BIA that Diaz-Gonzales has not provided eviden ce of past persecution based on her status as a person with HIV. She descri bes disparaging comments fr om family members and the community, but this does not rise to the level of persecution as required by Ali . 366 F.3d at 410.No. 16-4123, Diaz-Gonzales v. Sessions

- 6 - The BIA also concluded that Diaz-Gonzales fa iled to provide evidence to support a wellfounded fear that she faced future persecution from “Honduran author ities, or any private actors” should she return to Honduras. In Valasquez-Banegas v. Lynch , the Seventh Circuit recently examined an appeal from a Honduran petitioner who claimed to fear future persecution because he has HIV and is therefore pe rceived in Honduran society as being homosexual. 846 F.3d 258, 259 (7th Cir. 2017). The court remanded the case to the agency to rec onsider evidence in the record, particularly testimony of a professor of Latin American studies, that pointed to the perception of persons with HIV as homosexua l and the risks of violent and non-violent persecution facing homosexuals in Honduras. Id . at 262-64. In this case, Diaz-Gonzales does not argue that she faces the risk of violence due to the perception that she is homosexual. Unlike in Valasquez-Banegas , Diaz-Gonzales did not have an expert testify to the credible fear of future persecution. Inst ead, Diaz-Gonzales points to the U.S. Department of State Country Reports on Human Rights Practices for 2014 that says in Honduras “persons with HIV/AIDS faced discrimination in employ ment and occupation” despite laws prohibiting that discriminati on. The Country Report also notes that “the lack of work and educational opportunities and access to health services continued to be the major challenges for persons with HIV/AIDS.” As an example, only one prison in Honduras had an antiretroviral program to treat HIV, but that prison “did not have necessary materials to test for or diagnose
HIV/AIDS.” Although Diaz-Gonzales and Sanche z-Diaz have pointed out very real challenges facing those with HIV in Honduras, we must agree with the BIA that they have failed to provide sufficient evidence to support a well-founded fear of future persecution based on DiazGonzales’s status as a person with HIV. Much as the past discrimination against Diaz-Gonzales failed to rise to the level of persecution, her stated fears about future discri mination fail to rise toNo. 16-4123, Diaz-Gonzales v. Sessions

- 7 - the level of persecution. The Country Reports do corroborate those fears in a general way, but do not provide information that is sufficient to ch ange the result here. Most of the evidence points to the financial hardships of extortion an d other criminal activity, and Diaz-Gonzales has not shown that economic hardship due to decr eased business caused by th e stigma of HIV is “sufficiently severe” to rise to the level of economic persecution. See Scavenger v. Mukasey , 313 F. App’x 816, 818 (6th Cir. 2008) (citing In re T-Z , 241 I. & N. Dec. 163, 171-73 (BIA 2007)) (“[A]sylum applicants . . . must establish that they faced a deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.”)
C. Humanitarian Asylum Diaz-Gonzales and Sanchez-Diaz claim to be el igible for asylum on a humanitarian basis. Diaz-Gonzales and her treating doctor in the United States poi nt out that medical care in Honduras will not be as effective as that in th e United States. This argument was not made before the BIA, and we lack jurisdiction to address a claim that has not exhausted the administrative process. Ramani v. Ashcroft , 378 F.3d 554, 559 (6th Cir. 2004) (discussing the statutory exhaustion requiremen t in 8 U.S.C. § 1252(d)(1)).
D. Withholding of Removal To be eligible for withholding of removal, pe titioners must show that they are refugees. 8 U.S.C. § 1231(b)(3)(C). As discussed above, Diaz-Gonzales and Sanchez-Diaz have failed to show past persecution or a well-founded fear of future persecution based on membership in a particular social group. Thei r petition for withholding of re moval therefore also fails. For the foregoing reasons, we DISMISS the petition for review of Diaz-Gonzales and Sanchez-Diaz.