# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued March 3, 2020
Decided March 24, 2020

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-1996

LEYLA E. HERNANDEZ-DIAZ and
ALISSON M. MORAN-HERNANDEZ,

Petitioners

,

v

.

WILLIAM P. BARR, Attorney General of the United States, Respondent

. Petition for Review of an Order of the Board of Immigration Appeals.

Nos. A208-989-725 and A208-989-726

ORDER

Leyla Hernandez-Diaz, a citizen of El Sa lvador, petitions, along with her minor daughter, for review of the denial of her a pplications for asylum and withholding of removal under the Immigration and Nationali ty Act. She sought relief based on threats she received from gang members because sh e was a police officer. Because substantial evidence supports the immigration judge’s de cision that the threats were too vague and speculative to establish persecution and were insufficiently connected to her occupation, we deny the petition for review. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1996 Page 2

Background

Hernandez-Diaz entered the United Stat es without proper documentation in May 2016 with her minor daughter, Alisson Mo ran-Hernandez, who is also a petitioner in this case. (The daughter’s applications are derivative of her mother’s.) The Department of Homeland Security initiate d removal proceedings, and Hernandez-Diaz

conceded that she was removable under 8 U.S.C. § 1182(a)(7)(A ). She applied for asylum and withholding of removal based on the hazard that MS-13 gang members posed to her life because she was a police offi cer. She also sought protection under the Convention Against Torture, but she does no t challenge the denial of that relief.

At a hearing before an immigration judge (“IJ”), Hernandez-Diaz and her husband (who had left El Salvador separatel y) testified that, for years, they had been national police officers in El Salvador wi thout incident. That changed in August 2015,

when Hernandez-Diaz was in her home an d unknown people began banging on the

exterior wall of the house. She turned o ff the lights and hid with her daughter. She called her co-workers on the police force, bu t by the time they arrived, the perpetrators
had fled. Hernandez-Diaz never saw them, but she believed that they were members of the MS-13 gang because it is the dominant gang in the area. She testified that gang members targeted her for “the simple fact that [she and her husband] are police officers.” The gangs knew that they were police officers, Hernandez-Diaz and her husband thought, because they wore unif orms while on duty, were photographed while working, and they hung their washed uniforms on a clothesline outside to dry.

The next month, MS-13 gang members sh ot guns into the air in HernandezDiaz’s neighborhood. Police officers respon ded to the scene and arrested three gang members. The gang members had fired the gu ns, Hernandez-Diaz believed, to threaten her. A neighbor later warned Hernandez-Di az and her husband to be careful because someone had threated to kill them and their daughter. Hernandez-Diaz and her husband believed that gang members made this threat because they mistakenly thought that Hernandez-Diaz had called the po lice during the shooting incident.

Three months later (after changes in wo rk schedules required Hernandez-Diaz to be at home without her husband at night), she and her daughter began spending nights with her in-laws because she no longer felt sa fe in her home. She also requested time off

work because she was afraid for her safety.No. 19-1996 Page 3

Then, in March 2016, Hernandez-Diaz and her husband were returning to their home when they saw people hiding in the bu shes outside. As they rushed inside, they heard the hammer of a gun cock. Although sh e did not see the faces of the figures, Hernandez-Diaz believed they were MS-13 ga ng members because no one else would be targeting her.

Hernandez-Diaz and her husband also test ified about four police officers they knew personally who were murdered by gangs between 2015 and 2017. The first was killed when she intervened to stop a robbery on a bus. Two others were ambushed and murdered by gang members wh en they responded to an emergency. The fourth was ambushed, tied up by his hands and feet, and killed.

In April 2016, Hernandez-Diaz left the po lice force, and she and her daughter

fled El Salvador. Hernandez-Diaz testified that she is afraid to return there because she believes that the MS-13 gang would recognize her as a former police officer (based on photographs and her mannerisms) and kill her. Ga ngs in El Salvador kill police officers, Hernandez-Diaz testified, for the “simple fa ct that we are police officers” and because gangs derive power from those slayings.

After the hearing, the IJ denied her applications. She found Hernandez-Diaz credible but concluded that the past harm did not rise to the level of persecution. The IJ

also found that Hernandez-Diaz had no t shown a well-founded fear of future persecution because there was no reason to believe that gang members would single her
out if she returned to El Salvador, and sh e did not show a pattern or practice of persecution of similarly situated individuals. And, although the IJ did not discuss the proposed social groups (“police officers in El Salvador,” “honest police officers in El Salvador,” or “former police officers in El Salvador”), she determined that even if Hernandez-Diaz had demonstrated persecution, she failed to show that the harm she suffered, or might suffer if she returned , was based on her employment as a police officer. Because Hernandez-Diaz could not establish asylum eligibility, she could not meet the higher standard for withholding of removal. Hernandez-Diaz appealed to the Board of Immigration Appeals, which affirmed . She now petitions this court for review.

Analysis

Because the Board affirmed without opinion, this court directly reviews the IJ’s decision, examining legal conclusions de no vo and factual conclusions to determineNo. 19-1996 Page 4

whether they are supported by substantial evidence. Dominguez-Pulido v. Lynch

, 821 F.3d 837, 841 (7th Cir. 2016).

Hernandez-Diaz first challenges the IJ’s conclusion that she did not demonstrate past persecution to support her claim of asylum under 8 C.F.R. § 1208.13(b)(1).

Persecution must rise above mere h arassment—it involves “the use of significant physical force against a person’s body . . . or nonphysical harm of equal gravity.” Stanojkova v. Holder , 645 F.3d 943, 948 (7th Cir. 2011) (emphasis in original). HernandezDiaz contends that the purported gang me mbers banging on the walls of her home, firing shots into the air in her neighborhood , hiding in her bushes and cocking a gun, and threatening her family with death, co nsidered together, rise to the level of persecution. She urges that these incidents co nstitute “credible threat[s] to inflict grave physical harm.” Stanojkova , 645 F.3d at 948.

But the IJ permissibly concluded that Hernandez-Diaz had not suffered past persecution. Threats will amount to pe rsecution only in the most extreme circumstances: they must be “credible, imminent and severe.” N.L.A. v. Holder , 744 F.3d 425, 431 (7th Cir. 2014). Although the incide nts described by Hernandez-Diaz are frightening, the IJ reasonably conclu ded that those threats were too “vague,
unsubstantiated, and unfulfilled” to rise to the level of persecution. Compare OrellanaArias v. Sessions , 865 F.3d 476, 487 (7th Cir. 2017) (finding of past persecution not compelled where gang members physically atta cked petitioner but inflicted only minor injuries and made unfulfilled death threats), with N.L.A. , 744 F.3d at 432–34 (threats directed at petitioner by guerillas who mu rdered her uncle and kidnapped her father compelled a finding of past persecution). And although the death threat relayed to Hernandez-Diaz by her neighbor is troublin g, it was a vague rumor, and there is no evidence that any gang member attempted to follow through. See Hernandez-Baena v.

Gonzales , 417 F.3d 720, 723 (7th Cir. 2005).

The IJ also did not err in concludi ng that Hernandez-Diaz fell short of establishing a well-founded fear of future persecution under 8 C.F.R. § 1208.13(b)(2). A well-founded fear of future persecution is one that is “subjectively genuine and objectively reasonable in light of credible evidence.” Hernandez-Garcia v. Barr , 930 F.3d 915, 920 (7th Cir. 2019) (quoting Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir. 2008)). The IJ concluded that Hernandez-Diaz met the subjective prong. And Hernandez-Diaz

contends that she also satisfied the objective component by showing both a reasonable probability that she will be singled out for persecution in El Salvador and a pattern or practice of persecution of an identifiable group to which she belongs. See Hernandez-No. 19-1996 Page 5

Garcia , 930 F.3d at 920 (one or the other would suffi ce). Hernandez-Diaz has not shown that her fear of future prosecution is objectively reasonable.

First, Hernandez-Diaz failed to offer “specific, detailed evidence indicating that it would be more likely than not that [she] wo uld be individually targeted for harm” if

she returns to El Salvador. Orellana-Arias , 865 F.3d at 488. The record supports the IJ’s

conclusion that Hernandez-Diaz lacked evid ence that gang memb ers would even know if she returns, or, if they did, that they would target her for harm. Gang members never went beyond threats or menacing conduct to ward Hernandez-Diaz when she lived in El
Salvador, and there is no evidence that the MS-13 gang looked for her after she fled or warned her against returning. Only her own speculation supports her argument that gang members will target her for violence if she returns.

Second, substantial evidence supported th e IJ’s conclusion that Hernandez-Diaz failed to show a pattern or practice of pers ecution of current or former police officers. This would require evidence of “a systematic, pervasive, or organized effort to kill, imprison, or severely injure me mbers of the protected group.” Georgieva v. Holder

, 751 F.3d 514, 523 (7th Cir. 2014) (quoting Mitreva v. Gonzales , 417 F.3d 761, 765 (7th Cir. 2005)). The IJ reasonably found that the news articles and country reports in the record evince a country-wide violent gang prob lem affecting the entire population of El Salvador. And she correctly concluded that such generalized conditions are insufficient to show a pattern or practi ce of persecution of police officers. See HernandezGarcia , 930 F.3d at 920–21. That same evidence makes clear that gang violence has caused substantial hardships for police offi cers in particular; however, the evidence does not reflect the extreme extent of police- specific mistreatment necessary to overturn the IJ on this point. See

, e.g. , id . (“shocking level of violence against women” insufficient to show systemic persecution of women by gangs); Krishnapillai v. Holder , 563 F.3d 606, 620–21 (7th Cir. 2009) (reports of extreme huma n rights deprivations suffered by ethnic minority insufficient to compel finding of pattern or practice of persecution).

Moreover, to reverse the IJ’s finding with respect to either past or future persecution, this court would have to conclu de that the El Salvadoran government is complicit in MS-13 gang violence or is “unabl e or unwilling to take steps to prevent” it.

N.L.A. , 744 F.3d at 440. But the record here su ggests that, although the gang violence has not been controlled, there is aggressive policing and state action to suppress gang violence. Hernandez-Diaz did not put forth evid ence that the government ignores or is complicit in the gang problem; indeed, sh e testified that police responded when theNo. 19-1996 Page 6

purported gang members individuals banged on the walls of her home and fired weapons into the air in her neighborhood.

Hernandez-Diaz also insist s that she established the requisite connection between the purported persecution and her st atus as a (now former) police officer. The government argues that Hernandez-Diaz waiv ed this argument, but she simply falls short of supporting it. To show that persec ution was based on membership in a social group, a petitioner must identify a group th at is cognizable under the Act and establish a nexus between the persecution and the membership in the group. Orellana-Arias

, 865 F.3d at 484. The IJ assumed that the prop osed social groups were cognizable but reasonably concluded that Hernandez-Diaz had no evidence to support her nexus
argument. See id . In two of the incidents Hernandez-Diaz described, it is unclear whether gang members were involved at all. Even assuming they were, she cites nothing but her and her husband’s conclusory testimony that the threatening incidents she experienced “occurred because [Hernandez -Diaz] is a police officer” and “just for being a police officer.” That is one perm issible inference based on circumstantial

evidence. See Bueso-Avila v. Holder , 663 F.3d 934, 938 (7th Cir. 2011). But only Hernandez-Diaz’s and her husband’s subjective beliefs support their suspected motive as compared to any other possible one; wi thout more, their inference is not “so compelling that no reasonable fact-finder coul d fail to find” that gang members targeted Hernandez-Diaz based on her occupation. Id . (quoting Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir. 2005)).

We affirm the IJ’s decision denying Hernandez-Diaz’s application for asylum because she did not establish past persecution or a well-founded fear of future persecution as a result of being a police o fficer. She also challenges the denial of withholding of removal, but the standard for that relief is more stringent. See Dominguez-Pulido , 821 F.3d at 845. To qualify, a claimant must demonstrate a clear probability that she will face persecution if removed. Id . Because Hernandez-Diaz cannot establish eligibility for asylum, she necessarily cannot satisfy the higher standard for withholding of removal.

For these reasons, we DENY the petition for review.