Agnes Phiri v. Eric Holder, Jr.

Filing

Per Curiam OPINION: the petition for review is DENIED, decision not for publication. David W. McKeague, Circuit Judge; Richard Allen Griffin, Circuit Judge and Dan A. Polster, U.S. District Judge for the Northern District of Ohio, sitting by designation.

Case: 13-4475

Document: 23-1

Filed: 09/24/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0742n.06
No. 13-4475
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NACHIZONDE AGNES PHIRI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

)
)
)
)
)
)
)
)
)

FILED
Sep 24, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; POLSTER, District Judge.

*

PER CURIAM. Nachizonde Agnes Phiri, a citizen of Zambia, petitions through counsel
for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal from a
decision of an immigration judge (IJ) denying her applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
Phiri was born in Zambia in 1977. She entered this country in 2001. She went to school
to become a radiography and CT scan technician. After her schooling was complete, she
overstayed her visa. She had a son born in 2010. When placed in removal proceedings, she
applied for the above relief, claiming to fear persecution in Zambia as a woman who has been
diagnosed as HIV-positive. After a hearing, an IJ denied all relief and ordered Phiri removed to
Zambia. The BIA agreed with the IJ’s decision and dismissed her appeal.
*

The Honorable Dan A. Polster, United States District Judge for the Northern District of
Ohio, sitting by designation.

Case: 13-4475

Document: 23-1

Filed: 09/24/2014

Page: 2

No. 13-4475
Phiri v. Holder

We may grant a petition for review of a decision denying asylum relief only where the
evidence is so compelling that no reasonable factfinder could fail to find that the applicant is
entitled to relief. Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). In order to be entitled to
asylum, Phiri was required to show that she has a well-founded fear of persecution on account of
a protected ground; in this case, her membership in the group of women who are HIV-positive.
See Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010). Phiri raised several
arguments to support her case. First, she argued that women, and particularly women with HIV,
are discriminated against in obtaining employment in Zambia. However, the IJ found that Phiri
would not be subject to such discrimination because of her training. In the worst case, Phiri
acknowledged that she could be employed by her father, who owns a business manufacturing
detergent. Next, Phiri pointed to an article she submitted documenting that women with HIV in
abusive relationships often have difficulty keeping up with their medication regimen. However,
this did not apply to Phiri, who is single.
Finally, Phiri indicated that the strongest of the three medications she takes daily to
control her HIV is not available in Zambia because of its cost. Moreover, she argued that
medications in general could become unavailable due to government corruption, when money
intended to provide medication is diverted to line the pockets of corrupt officials, and foreign
donors become disillusioned and withdraw their support. If the unavailability of medication to
treat HIV in Zambia were considered persecution in this case, it would have to be shown to be
motivated by a desire to persecute women with HIV. See Umana-Ramos v. Holder, 724 F.3d
667, 671 (6th Cir. 2013). The evidence shows, however, that the availability of medication is
governed by economic forces and the greed of corrupt officials, and not designed to persecute the

-2-

Case: 13-4475

Document: 23-1

Filed: 09/24/2014

Page: 3

No. 13-4475
Phiri v. Holder

group of which Phiri is a member. Therefore, the evidence does not compel a finding that Phiri
has a well-founded fear of persecution.
Because Phiri has not established eligibility for asylum, she necessarily cannot satisfy the
more demanding standard for withholding of removal. See Bonilla-Morales, 607 F.3d at 113839. And she has submitted no evidence to show that she will be tortured by or with the consent
or acquiescence of the government of Zambia, in order to be entitled to protection under the
CAT. See Ali v. Reno, 237 F.3d 591, 596-97 (6th Cir. 2001). Accordingly, we deny the petition
for review.

-3-