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    Maerschalck v. Ashcroft, 10th Cir. (2005)

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    This order summarizes a case in which a mother, father, and their ten children from Belgium petitioned for asylum in the United States, claiming past persecution and fear of future persecution due to their Mormon faith. The immigration judge denied their application, and the Board of Immigration Appeals affirmed. The Court of Appeals upholds the denial, finding that the family failed to establish persecution as defined in refugee law, rather than mere harassment or personal hostility. While the mother reported hostility from family and employers in Belgium, the evidence did not compel finding her eligible for asylum.

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    Maerschalck v. Ashcroft, 10th Cir. (2005)

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    This order summarizes a case in which a mother, father, and their ten children from Belgium petitioned for asylum in the United States, claiming past persecution and fear of future persecution due to their Mormon faith. The immigration judge denied their application, and the Board of Immigration Appeals affirmed. The Court of Appeals upholds the denial, finding that the family failed to establish persecution as defined in refugee law, rather than mere harassment or personal hostility. While the mother reported hostility from family and employers in Belgium, the evidence did not compel finding her eligible for asylum.

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    Filed: 2005-12-16 Precedential Status: Non-Precedential Docket: 05-9504

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    This order summarizes a case in which a mother, father, and their ten children from Belgium petitioned for asylum in the United States, claiming past persecution and fear of future persecution due to their Mormon faith. The immigration judge denied their application, and the Board of Immigration Appeals affirmed. The Court of Appeals upholds the denial, finding that the family failed to establish persecution as defined in refugee law, rather than mere harassment or personal hostility. While the mother reported hostility from family and employers in Belgium, the evidence did not compel finding her eligible for asylum.

    Copyright:

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    Download as pdf
    38 views6 pages

    Maerschalck v. Ashcroft, 10th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This order summarizes a case in which a mother, father, and their ten children from Belgium petitioned for asylum in the United States, claiming past persecution and fear of future persecution due to their Mormon faith. The immigration judge denied their application, and the Board of Immigration Appeals affirmed. The Court of Appeals upholds the denial, finding that the family failed to establish persecution as defined in refugee law, rather than mere harassment or personal hostility. While the mother reported hostility from family and employers in Belgium, the evidence did not compel finding her eligible for asylum.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    CHRISTIANE R. DE
    MAERSCHALCK; DIRK M. VAN
    DER SPEK; CHELESEA VAN
    DER SPEK; KYRA M. VAN DER
    SPEK; VICKY F. VAN DER SPEK;
    DIRK M. VAN DER SPEK, JR.;
    SHARI VAN DER SPEK; QUINTEN
    VAN DER SPEK; KENNY VAN DER
    SPEK; KEVIN VAN DER SPEK;
    NATHAN VAN DER SPEK;
    GEOFFREY VAN DER SPEK,

    United States Court of Appeals


    Tenth Circuit

    December 16, 2005


    Clerk of Court

    No. 05-9504
    (No. A77-877-653)
    (Petition for Review)

    Petitioners,
    v.
    ALBERTO R. GONZALES, Attorney
    General, *
    Respondent.
    ORDER AND JUDGMENT **
    Before KELLY, PORFILIO, and BRORBY, Circuit Judges.
    On February 4, 2005, Alberto R. Gonzales became the United States
    Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
    Appellate Procedures, Mr. Gonzales is substituted for John Ashcroft as the
    Respondent in this action.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    **

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    Petitioners, a mother, father, and ten of their twelve children 1 seek asylum
    in the United States claiming they are refugees because they have suffered past
    persecution in Belgium due to their membership in the Church of Jesus Christ of
    Latter Day Saints (the Mormon Church) and have a well-founded fear of future
    persecution should they be forced to return. After a hearing, the Immigration
    Judge (IJ) denied the application for asylum, withholding of removal, and relief
    under the Convention Against Torture. The Board of Immigration Appeals (BIA)
    affirmed without decision. Reviewing the IJs order as if it were the decision of
    the BIA, Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003), we look to
    see whether the decision is supported by substantial evidence, and we treat the
    administrative fact findings as conclusive unless the record shows that a
    reasonable fact-finder would be compelled to conclude to the contrary. Sviridov
    v. Ashcroft, 358 F.3d 722, 727 (10th Cir. 2004). After our review under this
    standard, we affirm.

    Two of petitioners twelve children were born in the United States.


    -2-

    -3-

    Petitioner Christiane De Maerschalck, a native and citizen of Belgium who


    was raised Roman Catholic, converted to Mormonism in her twenties and later
    married petitioner Van Der Spek, a fellow Mormon and a native and citizen of
    The Netherlands. Petitioner De Maerschalcks parents were strongly opposed to
    her conversion to Mormonism and to her later marriage. De Maerschalck testified
    that, as a result of her conversion, her family harassed and stalked her without any
    interference from the police, that she was forbidden by her employer to speak of
    her religion, that her children were temporarily removed from her home by
    Belgian authorities, and that she and her husband were convicted in absentia of ill
    treatment of children.
    As is relevant here, an alien may demonstrate that she is entitled to asylum
    by showing either that she has a well-founded fear of future persecution or that
    she has suffered past persecution, which gives rise to a rebuttable presumption
    of a well-founded fear of future persecution. Wiransane v. Ashcroft, 366 F.3d
    889, 893 (10th Cir. 2004) (alterations and quotations omitted). Such persecution
    may be inflicted by the government itself, or by a non-governmental group that
    the government is unwilling or unable to control. Id. (quotation omitted).
    We have defined persecution as the infliction of suffering or harm upon
    those who differ (in race, religion, or political opinion) in a way regarded as
    offensive, noting that it must entail more than just restrictions or threats to life
    -4-

    and liberty. Id. (quotations omitted); see also 8 U.S.C. 1101(a)(42)(A)


    (defining a refugee as a person who has been persecuted or may face
    persecution in his home country on account of race, religion, nationality,
    membership in a particular social group, or political opinion). The offensive
    treatment must be extreme.

    Korablina v. INS , 158 F.3d 1038, 1044 (9th Cir.

    1998). More than mere harassment is required.

    Tamas-Mercea v. Reno , 222 F.3d

    417, 424 (7th Cir. 2000). [A]cts of common criminality or personal hostility . . .
    do not implicate [refugee status].
    (10th Cir. 2003).

    Vatulev v. Ashcroft , 354 F.3d 1207, 1209

    When the BIA has denied an asylum application, [w]e will not

    reverse the agencys decision unless the evidence compels the conclusion that
    petitioners have a well-founded fear of persecution because of one of the . . .
    grounds set forth in 8 U.S.C. 1101(a)(42)(A). Estrada-Escobar v. Ashcroft,
    376 F.3d 1042, 1046 (10th Cir. 2004). 2
    Petitioner De Maerschalcks evidence does not establish that she and her
    family have been victims of persecution. As in Vatulev, the personal hostility
    evinced by petitioners parents and brothers does not implicate refugee status.

    Congress recently modified a number of provisions governing asylum.


    See
    REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 101, 119 Stat. 231, 302-06.
    Although the REAL ID Act went into effect on May 11, 2005, only a handful of
    its provisions apply to pending cases.
    See id. 101(h), 119 Stat. at 305-06. None
    of these provisions affect our analysis in this appeal.
    2

    -5-

    Petitioner has not demonstrated that either the removal of her children by the
    Belgian authorities or the conviction in absentia was based on religious
    antagonism. In fact, the record indicates that, before the Belgian authorities
    stepped in, the Mormon community in Belgium had become concerned about the
    alarming condition of the children and had tried to intervene in the family
    situation to no avail. See R. at 212. Petitioners report that she was prevented
    from talking about her religion to co-workers fails to rise to the level of
    persecution. Because petitioners fail to establish eligibility for asylum, it follows
    that they cannot show the heightened standard necessary to support withholding
    of removal. Casteneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994).
    The IJs decision is supported by substantial evidence, and the record fails
    to demonstrate that any reasonable adjudicator would be compelled to conclude
    petitioners are eligible for asylum. The petition for review is therefore DENIED.

    Entered for the Court


    Paul J. Kelly, Jr.
    Circuit Judge

    -6-

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