Filed: Dec. 02, 2008
Latest Update: Mar. 02, 2020
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0733n.06 Filed: December 2, 2008 No. 07-3418 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SHELSEY SUSAN SCAVENGER, ) ) Petitioner, ) ) v. ) ON PETITION FOR REVIEW OF AN ) OR DER OF TH E B O A R D O F MICHAEL B. MUKASEY, ) IMMIGRATION APPEALS ) Respondent. ) Before: GILMAN, SUTTON, and KETHLEDGE, Circuit Judges. SUTTON, Circuit Judge. Shelsey Scavenger, a native and citizen of Canada, challenges a decision of the Board of Immigration
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0733n.06 Filed: December 2, 2008 No. 07-3418 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SHELSEY SUSAN SCAVENGER, ) ) Petitioner, ) ) v. ) ON PETITION FOR REVIEW OF AN ) OR DER OF TH E B O A R D O F MICHAEL B. MUKASEY, ) IMMIGRATION APPEALS ) Respondent. ) Before: GILMAN, SUTTON, and KETHLEDGE, Circuit Judges. SUTTON, Circuit Judge. Shelsey Scavenger, a native and citizen of Canada, challenges a decision of the Board of Immigration ..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0733n.06
Filed: December 2, 2008
No. 07-3418
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHELSEY SUSAN SCAVENGER, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) OR DER OF TH E B O A R D O F
MICHAEL B. MUKASEY, ) IMMIGRATION APPEALS
)
Respondent. )
Before: GILMAN, SUTTON, and KETHLEDGE, Circuit Judges.
SUTTON, Circuit Judge. Shelsey Scavenger, a native and citizen of Canada, challenges a
decision of the Board of Immigration Appeals (BIA) denying her applications for asylum,
withholding of removal and relief under the Convention Against Torture. For the reasons that
follow, we deny the petition for review.
I.
From 1996 to 1999, Scavenger, formerly named Susan Falls, lived in British Columbia and
worked as a bus driver for the City of West Vancouver transit system. At some point during her
tenure there, she determined that a number of customers were not paying their bus fares, and she
brought this problem to the attention of management and eventually to the public. In May 1999, the
No. 07-3418
Scavenger v. Mukasey
transit system fired her for insubordination. Claiming that her criticism of the company’s fare-
collection practices improperly prompted the discharge, Scavenger filed an arbitration action against
the transit system in an attempt to get her job back. She eventually settled the claim for 27,500
Canadian dollars but was not reinstated.
During the next four years, Scavenger had difficulty finding long-term employment. She
received unemployment benefits for the first year after she lost her job, but for reasons that the record
does not disclose she apparently was not eligible for these benefits after that year and apparently was
never eligible for welfare. She supported herself with “odd jobs,” JA 91, one of which included a
year-long government grant “to start a recycling business,” JA 62—what became a form of
“dumpster div[ing]” by which she would collect bottles, among other items, for recycling, JA 92.
But she never found long-term employment, and by 2003 she was “living in [her] car and living with
friends,” JA 63. Scavenger entered the United States for the first time in 2003, and she entered the
country in July 2004 with the hopes of staying here permanently.
Scavenger applied for asylum, withholding of removal and relief under the Convention
Against Torture, claiming economic deprivation because her public employer had “blacklisted” her
and because “four levels of government in Canada” had “persecuted” her “economically” due to her
views about fare collection. JA 91. The Immigration Judge (IJ) denied all of Scavenger’s
applications. In doing so, the IJ accepted Scavenger’s allegations that she was a “whistle blower”
who had been “acted against for [her] political opinion.” JA 20. But he nonetheless held that,
“whatever economic deprivation [Scavenger] was subject to,” it did “not rise to the level of
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persecution [required] under the Act.” JA 32. The BIA affirmed, except in two respects: It found
it unnecessary to determine whether the government had acted against her on account of her political
opinion, namely her whistle blowing, and it declined to affirm the IJ to the extent he speculated that
Scavenger’s personality may have affected her inability to find a job.
II.
A.
To be eligible for asylum, an alien must prove that she is unable or unwilling to return home
“because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). When the BIA largely affirms the IJ’s decision without discussion but adds
commentary of its own on a few points, we “directly review the decision of the IJ while considering
the additional comment[s] made by the BIA.” Gilaj v. Gonzales,
408 F.3d 275, 283 (6th Cir. 2005).
We will reverse the BIA’s decision only if the applicant shows “that no reasonable factfinder could
fail to find the requisite fear of persecution,” INS v. Elias-Zacarias,
502 U.S. 478, 484 (1992)—that
the evidence in other words “not only supports [reversal] but compels it,”
id. at 481 n.1.
Scavenger seeks asylum on the ground that she was “persecut[ed]” on the basis of her
“political opinion.” The alleged persecution stems from economic deprivation caused by the
Canadian government’s blacklisting of her, and the connection to political opinion turns on the
allegation that her employment difficulties arose after she called attention to the Vancouver transit
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system’s lenient fare-collection practices. Consistent with the BIA’s decision, we need not decide
whether the government’s response to Scavenger’s whistle-blowing activities amounted to
persecution on account of political opinion. We instead need only address whether her difficulties
in finding a job amounted to persecution.
Economic deprivation is a two-sided theory of persecution. On the one side, economic
persecution is not a traditional ground for seeking asylum, and one can well imagine why. It would
seem odd to say that an inability to obtain public employment on account of political opinion
necessarily constitutes persecution. Otherwise, every patronage firing after every regime change in
another country would establish a cognizable basis for an asylum claim in this country. And we
doubt that many governments, particularly a country the size of Canada, have the authority to prevent
public and private employers from hiring someone because of her political opinion. On the other
side, it is no doubt the case that a malicious government bent on bringing an individual to heel could
do so just as effectively by punishing her economically as by punishing her physically.
The BIA and our court have balanced these considerations by holding that government-
caused “economic deprivation” may “constitute[] persecution” but “only when the resulting
conditions are sufficiently severe.” Daneshvar v. Ashcroft,
355 F.3d 615, 624 n.9 (6th Cir. 2004)
(citing In re Acosta, 19 I. & N. Dec. 211, 222,
1985 WL 56042 (BIA 1985)). As the BIA put the
point more recently, while asylum applicants “need not demonstrate a total deprivation of livelihood
or a total withdrawal of all economic opportunity in order to demonstrate harm amounting to
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persecution,” they 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.”
In re T-Z, 24 I. & N. Dec. 163, 171, 173 (BIA 2007) (internal quotation marks omitted).
Scavenger cannot show that Canada purposefully imposed “severe economic disadvantage”
on her or at least cannot show that the record compels such a finding. Her principal theory of
economic persecution is that the Canadian government blacklisted her on a nationwide basis. There
is “a list,” she stated, “that the Canadian government has of people who should never get jobs” and
she was on that “blacklist.” JA 61. The problem with this theory is that the IJ did not credit her
testimony on this point. “[A]lthough,” he explained, “the Court has no problem believing that any
time the bus company or the union was asked for a reference, they said bad things about her, as I’m
sure that they did. Nonetheless, that does not constitute a nationwide blacklist . . . .” JA 20–21.
Scavenger never directly challenged the IJ’s credibility finding on this point, and not surprisingly
the BIA did not disturb it. Nor is there anything in the record that casts doubt on this conclusion.
That leaves the possibility that, even if the Canadian government did not place Scavenger on
a nationwide blacklist, the poor job references that the transit system gave her after the discharge still
rose to the level of economic persecution. Putting to one side the question whether our immigration
laws provide relief whenever a foreign-government agency refuses to give a positive reference to
someone it has discharged, the first signal that Scavenger was not subjected to a cognizable case of
economic persecution is her settlement agreement with the Vancouver transit system. That the
Canadian legal system permits a discharged public employee to seek legal relief if she has been
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treated improperly offers some evidence that our northern neighbor would not lightly engage in
economic persecution. And whatever else Scavenger’s C$27,500 settlement with the transit system
may suggest about the validity of her whistle-blowing claim, it does not suggest that the government
was trying to make her penniless. Likewise, had the government been bent on making her
impecunious, it would not have supported her with unemployment benefits for a year, and it would
not have given her a year-long grant to support her recycling business. The record is silent on why
Scavenger’s unemployment benefits ended when they did and on why she was ineligible for welfare,
if indeed she was, but critically Scavenger never alleges that the government’s alleged animosity
against her had anything to do with her receipt of or eligibility for these benefits.
Other record evidence supports the denial of this claim. In addition to the C$27,500 she
received after her discharge, Scavenger had other ways to support herself during the next four years.
She started a dumpster-diving business that collected recyclables that could benefit local charities.
No one suggests that she left that business because the government interfered with it; rather, she was
“burned out” by it, and it apparently did not generate sufficient income. JA 93. She later worked
intermittently cleaning houses and was employed by the Salvation Army during the holiday season.
And it bears emphasizing that her arrival in the United States has not markedly changed the kind of
work she has been qualified to handle or her standard of living. Compare JA 63 (“[T]he last few
months I was in Canada . . . I was living in my car and living with friends. . . . I didn’t have a job.”),
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with JA 94 (describing the “odd jobs” she has taken in the United States, including “eleven months
of house-sitting and living in [her] car,” and her current living arrangements, which involve “a cheap,
dingy room in a rooming house”).
She also refused to look into or accept certain types of employment before she left Canada.
Despite her interest in serving the public, she did not apply to any public-interest organizations in
Canada. While she offers no credible basis for fearing that the government would have prevented
her from working as a waitress, she explained that it “would be last on [her] list of things to do”
because she “can’t stand to see food thrown away.” JA 70. “[O]ne’s inability to obtain [her]
preferred government job” does not establish persecution.
Daneshvar, 355 F.3d at 624 n.9. And
while she acknowledged that she did not mind cleaning houses, she testified that “there are a lot of
people, I think a lot of illegal aliens there that are doing the same thing, so it’s not easy to find work
there as it is here.” IJ Hr’g Tr. 44. Indeed, in her opening brief, she concedes that employment
opportunities are available in Canada but she has not pursued them because they are “menial.” Br.
at 22. Yet one cannot bring a cognizable economic persecution claim merely because a weak
economy has undermined one’s job prospects or because it has undermined one’s preferred job
prospects. See
Daneshvar, 355 F.3d at 624 n.9. All of this suggests not that the government
economically persecuted her, but that she was unable to find long-term employment that best suited
her. That does not amount to the “deliberate imposition of severe economic disadvantage” by the
Canadian government. In re T-Z, 24 I. & N. Dec. at 171 (internal quotation marks omitted); see
Daneshvar, 355 F.3d at 624 n.9 (“Economic deprivation constitutes persecution only when the
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resulting conditions are sufficiently severe.”); see also Zalega v. INS,
916 F.2d 1257, 1260 (7th Cir.
1990) (holding that petitioner’s complaint that “he could not get a government job commensurate
with his education and training . . . did not rise to the level of persecution”).
Scavenger insists that the IJ applied the wrong standard for determining economic
persecution by requiring her “to prove inability to obtain employment of any kind in Canada” in
order to qualify for asylum. Br. at 20. But we do not read the IJ’s opinion as imposing such a
requirement. He merely “d[id] not find fully credible” one of Scavenger’s factual claims—“that she
was unable to find any kind of employment anywhere in Canada,” JA 20—a statement that goes to
the credibility of Scavenger’s assertion that she could not find any employment in the country, not
to the showing needed to qualify for asylum.
B.
Having failed to demonstrate that she is eligible for asylum, Scavenger necessarily cannot
satisfy the more demanding standard for withholding of removal. See Yu v. Ashcroft,
364 F.3d 700,
703 n.3 (6th Cir. 2004). And Scavenger has failed to address in any detail the IJ’s rejection of her
separate claim for relief under the Convention Against Torture, leaving us no basis for addressing
it ourselves. See Leary v. Livingston County,
528 F.3d 438, 449 (6th Cir. 2008).
III.
For these reasons, we deny the petition for review.
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