Jhensy Rosmery Pena-Nolasco v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 30, 2020
• Docket: 20-10019
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10019 Non-Argument Calendar ________________________

Agency No. A206-312-078

JHENSY ROSMERY PENA-NOLASCO, DOUGLAS FRANCISCO LOPEZ-PENA, JHENSY JUDITH LOPEZ-PENA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(October 30, 2020)

Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.

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Jhensy Pena-Nolasco, her son Douglas Lopez-Pena, and her daughter Jhensy

Lopez-Pena seek review of a Board of Immigration Appeals (“BIA”) decision

affirming the immigration judge’s denial of Pena-Nolasco’s request for asylum

under Section 208 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158

(2018); withholding of removal under 8 U.S.C. § 1231(b)(3); and protection under

the Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). The BIA affirmed

the immigration judge’s decision on the grounds that Pena-Nolasco had failed to

establish (1) past persecution on account of membership in a protected group, (2) a

well-founded fear of future persecution, and (3) that the Honduran government is

unable or unwilling to protect her or that the immigration judge erred when it found

that she could avoid persecution by relocating within Honduras. Pena-Nolasco

petitioned this Court for review. Because substantial evidence supports the BIA’s

decision, we deny the petition for review.

BACKGROUND

Petitioners in this case are a mother, son, and daughter, all of whom are natives

and citizens of Honduras. Lead Petitioner Pena-Nolasco and her son Douglas entered

the United States together without inspection on November 2, 2013, and were placed

in removal proceedings shortly after arrival. Her daughter Jhensy entered without

inspection on or about January 15, 2014. Shortly after Jhensy arrived, she was placed

in removal proceedings, and her case was consolidated with that of her mother and

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brother. Pena-Nolasco submitted an application for asylum on November 5, 2014.

She listed her son and daughter as derivatives to her asylum claim and indicated that

she sought protection on account of her membership in a family-based particular

social group. She filed an updated application on February 1, 2018, containing

support for her withholding of removal and CAT claims.

Pena-Nolasco testified that she was born in Honduras in the municipality of

San Francisco de Ojuera, Department of Santa Barbara. She married her husband,

Francisco Lopez, in 2010 and moved to his hometown of San Pedro Sula in the

Rivera Hernandez neighborhood, where his extended family lived. Her husband’s

brother, Cristian Cecilio Lopez, was a neighborhood leader in the MS-13 gang there.

Cecilio sold drugs and firearms, extorted local businesses, and defended MS-13

operations from interference by rival gangs. At one point, Cecilio himself killed the

brother of a member of a rival gang known as Mara 18. Pena-Nolasco testified that

in response to that killing, members of Mara 18 sought revenge. She testified that

members of Mara 18 killed her son, Cristian Lopez, and that from that point onward

her family received death threats over the phone and in writing demanding that they

leave San Pedro Sula or be killed as well. Pena-Nolasco claimed that these threats

were similar to ones received by other relatives before they had been murdered. She

attributes several family members’ deaths to Mara 18, including the murders of

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several of her husband’s cousins, two of her husband’s brothers (including Cecilio),

and her husband’s uncle.

Pena-Nolasco explained that since the harassment by Mara 18 began, she and

her family have relocated several times. After her first relative was killed, Pena-

Nolasco moved from San Pedro Sula to Santa Barbara, approximately three hours

away. After two months, she and her family returned to San Pedro Sula “thinking

things were going to be back to normal.” After her son Cristian was killed, she and

her family decided to relocate to San Francisco de Ojuera. Pena-Nolasco testified

that her family did not receive any direct threats while living in San Francisco de

Ojuera. However, a few days after the move, neighbors from San Pedro Sula came

to their new home and told them that several men on motorcycles had appeared in

their old neighborhood asking for their whereabouts. Afterwards, Pena-Nolasco and

her husband decided that it was necessary to leave Honduras. Her husband sold his

business and sent her and their son to the United States, with their daughter following

soon after.

The immigration judge issued an oral decision denying Pena-Nolasco’s

applications for asylum, withholding of removal, and CAT relief. The judge ruled

that Pena-Nolasco had: (1) failed to provide reasonably available corroborating

evidence to support her claims; (2) failed to timely file her asylum application; (3)

failed to show that she had suffered harm in Honduras rising to the level of

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“persecution”; (4) not shown that she was threatened by the government or a group

the government was “unable or unwilling” to control; (5) not established a nexus

between the threats she received and a statutorily protected ground—race, religion,

nationality, membership in a particular social group, or political opinion; (6) not

established a well-founded fear of future persecution that was objectively

reasonable; and finally (7) failed to show that a public official would acquiesce to

any harm she might face in Honduras necessary to prevail on her request for CAT

protection.

Pena-Nolasco appealed the immigration judge’s decision to the BIA. As an

initial matter, the Board held that consideration of the timeliness of Pena-Nolasco’s

application was unnecessary because her application failed on the merits. It affirmed

the immigration judge’s decision for three main reasons, concluding that Pena-

Nolasco had (1) not established past persecution because she did not present

evidence that she was personally harmed by her alleged persecutors; (2) not shown

a well-founded fear of future persecution in Honduras on account of her membership

in a particular social group—or that any of her six proposed particular social groups,

all based on family relations—were cognizable under the INA; and (3) not shown

that the Honduran government is unable or unwilling to prevent private actors from

harming her or that the immigration judge clearly erred by finding that Pena-Nolasco

could avoid persecution or future threats by relocating within Honduras.

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STANDARD OF REVIEW

We review the BIA’s legal conclusions de novo, Perez-Zenteno v. U.S. Att’y

Gen., 913 F.3d 1301, 1306 (11th Cir. 2019) (citation omitted), and its factual

findings under the “highly deferential substantial evidence test,” Adefemi v.

Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc) (citation omitted).

Under that test, the BIA’s factual findings “are conclusive unless the record

demonstrates that ‘any reasonable adjudicator would be compelled to conclude the

contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (quoting

8 U.S.C. § 1252(b)(4)(B)). We will affirm the BIA’s decision if it is supported by

“reasonable, substantial, and probative evidence on the record considered as a

whole.” Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1286 (11th Cir. 2020)

(citation omitted). When the record “could support or contradict the conclusion of

the BIA, we must affirm its decision.” Recinos v. U.S. Att’y Gen., 566 F.3d 965, 967

(11th Cir. 2009) (citation omitted).

DISCUSSION

On appeal, Pena-Nolasco challenges each of the several grounds relied upon

by the immigration judge in denying her request for relief. We limit our review to

the decision of the BIA and “the decision of the Immigration Judge to the extent that

the [BIA] expressly adopted the opinion of the Immigration Judge.” Kazemzadeh v.

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U.S. Att’y. Gen., 577 F.3d 1341, 1350 (11th Cir. 2009) (citing Mohammed v. U.S.

Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008).

I.

The BIA did not address whether Pena-Nolasco’s asylum application was

timely filed, concluding that consideration of that issue was “unnecessary because .

. . the respondent has not met her burden to establish that she is eligible for asylum

on the merits.” Because the BIA did not consider the timeliness of Pena-Nolasco’s

application, that issue is not before us on appeal. Instead, we review the BIA’s

consideration of the merits of Pena-Nolasco’s application.

On the merits, substantial evidence supports the BIA’s finding that Pena-

Nolasco did not establish past persecution. Where, as here, an applicant alleges

persecution by a private actor, she must prove that she is “unable to avail [her]self

of the protection of [her] home country.” Sama v. U.S. Att’y Gen., 887 F.3d 1225,

1234 (11th Cir. 2018) (citation omitted). In such cases, failure to seek protection by

reporting alleged persecution to local authorities is “generally fatal to an asylum

claim.” Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (citing

Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001)). However, this

failure is excused where the applicant convincingly demonstrates the futility of

seeking assistance from those authorities because they would have been unable or

unwilling to protect her. Id.

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Pena-Nolasco cannot establish past persecution because she cannot

demonstrate that she availed herself of the protection of Honduran authorities, or

alternatively that it would have been futile to do so. First, she provided no evidence

that she filed a police report or made any effort to avail herself of local authorities

while in Honduras. She testified that she did not start receiving threats until her son

was killed in 2013. She also testified that she did not contact the authorities

immediately after her son was killed. Instead, she waited until she was already in the

United States. Second, the record indicates that while gang violence is prevalent in

Honduras, the Honduran government is making efforts to curb such violence and

improve the effectiveness of law enforcement. Other members of Pena-Nolasco’s

family have remained in Honduras since 2010, when Cecilio killed a member of

Mara 18. And when Pena-Nolasco finally contacted the Honduran police from the

United States to report her son’s death, the police recorded her statement.

Accordingly, the record in this case does not compel reversal of the BIA’s

determination that Pena-Nolasco failed to establish past persecution.

Substantial evidence also supports the BIA’s finding that Pena-Nolasco did

not establish a well-founded fear of future persecution on account of a protected

ground. Where an asylum applicant has not established past persecution, the burden

is on her to demonstrate a well-founded fear of future persecution. 8 C.F.R. §

1208.13(b)(2). An applicant does not have a well-founded fear of prosecution if she

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could avoid persecution by relocating to another part of her home country, provided

that it would be reasonable to do so. 8 C.F.R. § 1208.13(b)(2)(ii); see also Arboleda

v. U.S. Att’y Gen., 434 F.3d 1220, 1223–24 (11th Cir. 2006) (noting that we have

upheld the imposition of a “country-wide” requirement).

During her testimony, Pena-Nolasco admitted that she was able to find safety

when she left her husband’s neighborhood in San Pedro Sula for her hometown of

San Francisco de Ojuera. The government sought to clarify this point at the merits

hearing, asking: “And you didn’t receive threats from the gang when you were living

in your hometown. Is that correct?” Pena-Nolasco replied “Yes.” Although Pena-

Nolasco now argues that men on motorcycles came to San Francisco de Ojuera and

asked her neighbors for her whereabouts, her declaration states that the men on

motorcycles appeared in a town she had recently departed. She testified that “[a] few

days later living in San Francisco de Ojuera, the residents of the town that we

previously lived, had gone to the new place where we now lived and told us that

many men on motorcycles were asking the neighbors about us.” (emphasis added).

Consequently, the record does not compel reversal of the BIA’s determination that

it would be possible for Pena-Nolasco to safely relocate within Honduras.

Because the BIA’s affirmance of the immigration judge’s past-persecution

and relocation findings alone are adequate bases for denying Pena-Nolasco’s asylum

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claim, we need not consider the other grounds relied on by the immigration judge

and affirmed by the BIA.

II.

A claim for withholding of removal requires Pena-Nolasco to meet a higher

standard of proof than an asylum claim. Under the withholding of removal provision

of the INA, she must first show that her “life or freedom would be threatened in that

country because of [her] race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). She must then demonstrate

that it is “‘more likely than not’ she will be persecuted or tortured upon being

returned to her country.” Sepulveda v. U.S. Att’y. Gen., 401 F.3d 1226, 1232 (11th

Cir. 2005) (citing Fahim, 278 F.3d at 1218). Because substantial evidence supports

the BIA’s determination that Pena-Nolasco failed to meet the lower standard of proof

for asylum, it necessarily follows that she also failed to meet the more stringent

standard for withholding of removal. Amaya-Artunduaga v. U.S. Att’y Gen., 463

F.3d 1247, 1249 n.3 (11th Cir. 2006) (“[I]t is axiomatic that where an applicant fails

to meet the burden for asylum, he necessarily cannot meet the more stringent burden

for withholding of removal.” (citations omitted)); Forgue v. U.S. Att’y. Gen., 401

F.3d 1282, 1288 n.4 (11th Cir. 2005) (“Because [the applicant] has failed to establish

a claim of asylum on the merits, he necessarily fails to establish eligibility for

withholding of removal or protection under CAT.” (citation omitted)).

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III.

Pena-Nolasco’s request for CAT relief fails for the same reason. An applicant

seeking protection under CAT must likewise show that she would “more likely than

not” be tortured if removed to her proposed country of removal. 8 C.F.R. §

208.16(c)(2). Because substantial evidence supports the BIA’s determination that

she has failed to meet the lower standard of proof for asylum, she necessarily fails

to establish eligibility for protection under CAT. Forgue, 401 F.3d at 1288 n.4.

CONCLUSION

For the foregoing reasons, Pena-Nolasco’s petition for review is DENIED.