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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10711 Non-Argument Calendar ________________________
Agency No. A208-887-010
JOSE ISIDRO RIVAS PALENCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(January 23, 2020)
Before WILSON, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM: Case: 19-10711 Date Filed: 01/23/2020 Page: 2 of 17
Jose Isidro Rivas Palencia petitions for review of a Board of Immigration
Appeals’ (“BIA”) decision. In its decision, the BIA denied Rivas Palencia’s
request to terminate his removal proceedings and also affirmed the immigration
judge’s order denying his application for asylum and withholding of removal under
the Immigration and Nationality Act (“INA”) and relief under the United Nations
Convention Against Torture (“CAT”). After careful consideration, we deny his
petition.
I. FACTUAL BACKGROUND
Rivas Palencia, a citizen of Honduras, entered the United States without
inspection on January 30, 2016. This appeal involves his applications for asylum,
withholding of removal, and protection under the CAT.
A. After Entering the United States, Rivas is Served with a Notice to Appear.
Shortly after Rivas Palencia arrived in the United States, the Department of
Homeland Security (“DHS”) served him with a notice to appear (“NTA”), which
charged him with being removable on the basis that he was an immigrant not in
possession of a valid, unexpired immigrant visa or other entry document. See
8 U.S.C. § 1182(a)(7)(A)(i)(I). Although the NTA identified the location for the
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initial hearing, it stated that the date and time of the hearing were “To Be
Determined.” AR at 334.1
About a week later, Rivas Palencia was served with a Notice of Hearing,
which identified the date, time, and location for the initial hearing. At the hearing,
Rivas Palencia acknowledged service of the NTA and conceded his removability.
B. Rivas’s Applies for Asylum, Withholding of Removal, and Protection under the CAT.
After his initial hearing, Rivas Palencia filed an application for asylum and
withholding of removal as well as protection under the CAT. To support his
claims for asylum, withholding of removal, and CAT protection, Rivas Palencia
testified at a hearing before the immigration judge, submitted an affidavit from his
stepfather and mother, and filed various documentary evidence about his sisters’
murders and reports about country conditions in Honduras.
Rivas Palencia testified that he fled Honduras for the United States because
he feared that the family of a gang member would kill him. Approximately two
years before Rivas Palencia came to the United States, two of his sisters were
murdered in Honduras. They were murdered by Rudy Gonzalez, the boyfriend of
one of his sisters, who was also a gang member. Gonzalez was ultimately
convicted of murder and sentenced to 12 years’ imprisonment. Although Gonzalez
1 Citations to “AR” refer to the administrative record.
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remained in prison, Rivas Palencia feared reprisals from Gonzalez’s family. After
Rivas Palencia’s sisters were murdered, Gonzalez’s uncle was murdered.
According to Rivas Palencia, Gonzalez’s family believed that he had murdered
their uncle to avenge his sisters’ murders. After the uncle’s murder, Gonzalez’s
cousins drove by Rivas Palencia’s house several times, threatening his life and
yelling that their uncle’s death “was not going to be in vain.” AR 117. Rivas
Palencia did not report these incidents to law enforcement in Honduras because he
feared that his family would be in more danger if he did.
Rivas Palencia also testified that he feared returning to Honduras because
“there are a lot of criminals” there who have control over “everything that
happens.” Id. at 118. He testified that in 2012—about four years before he came
to the United States—he was approached about joining a gang. When he refused
to join, gang members threatened him.
During the hearing, Rivas Palencia was asked why he had not moved to
another region in Honduras. He responded that he had not wanted to leave his
mother who continued to live in his hometown in Honduras. He also indicated that
he could not safely live anywhere in Honduras because there were gangs and drug
dealers throughout the country.
Rivas Palencia also provided the immigration judge with an affidavit from
his stepfather and mother in Honduras explaining that Rivas Palencia came to the
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United States because he feared for his life in Honduras. The affidavit began by
addressing the murders of Rivas Palencia’s sisters. The affidavit explained that
after the sisters were “killed in a violent manner,” the family “all live[d] in fear
that something bad may happen to us.” Id. at 138.
The affidavit also described how other gang members had threatened Rivas
Palencia. The stepfather described an incident in which gang members tried to
recruit Rivas Palencia. A group of “vandals” came to the house looking for Rivas
Palencia. Id. The group wanted Rivas Palencia to join their gang and become a
criminal. When Rivas Palencia refused, the group told him that they were going to
kill him.
Rivas Palencia also submitted background materials on his sisters’ murders,
including their death certificates and several news articles about the murders. The
articles explained that the sisters were attacked on a road and killed by Gonzalez
and another man who were wielding machetes. The articles identified the motive
for the crimes as “passion.” Id. at 250.
Rivas Palencia also provided the immigration judge with background
materials on Honduras, including documents prepared by the State Department,
Human Rights Watch, and other organizations. These materials stated that
Honduras suffered from “[p]ervasive societal violence,” its levels of crime and
violence were “critically high,” and it had one of the highest murder rates in the
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world. Id. at 148, 270. The materials discussed that gangs were prevalent
throughout Honduras and that youth gangs known as “maras” used threats and
violence to control poorer districts in towns and cities. Id. at 286. The materials
also stated that the Honduran government lacked “sufficient resources to property
respond to, investigate, and prosecute cases,” which led to criminals being able to
operate with “a high degree of impunity.” Id. at 270.
C. The Immigration Judge Denies Rivas Palencia’s Applications, and the BIA Dismisses His Appeal.
In an oral ruling, the immigration judge denied Rivas Palencia’s applications
for asylum and withholding of removal and found he was not entitled to protection
under the CAT. Rivas Palencia appealed to the BIA.
Before the BIA, Rivas Palencia requested for the first time that the removal
proceedings against him be terminated on the basis that the immigration court was
never vested with jurisdiction. Relying on the Supreme Court’s recent decision in
Pereira v. Sessions, 138 S. Ct. 2015 (2018), he argued that because the NTA
served on him did not include the date and time of the proceedings, the
immigration court never had jurisdiction. Rivas Palencia also argued that the
immigration judge erred in denying his applications for asylum and withholding of
removal and finding that he was not entitled to protection under the CAT.
After review, the BIA dismissed the appeal, rejecting each of Rivas
Palencia’s arguments. The BIA began by addressing the jurisdictional argument. 6 Case: 19-10711 Date Filed: 01/23/2020 Page: 7 of 17
Even though the NTA failed to include the time and date of his initial hearing, the
BIA found that it was sufficient to vest the immigration court with jurisdiction over
his removal proceedings. The BIA thus determined that it was not required to
terminate the removal proceedings against Rivas Palencia.
Next, the BIA considered whether Rivas Palencia was eligible for asylum.
The BIA determined that the immigration judge had not clearly erred in finding
that Rivas Palencia failed to establish a well-founded fear of persecution. The BIA
assumed that Gonzalez’s cousins had threated Rivas Palencia’s life. But the BIA
determined these threats did not establish that Rivas Palencia had a well-founded
fear of persecution in Honduras. The BIA explained that Rivas Palencia had been
able to continue to live in his family’s home “for approximately a year after the
killing of the uncle of his sisters’ killers, which was a year after his sisters were
murdered, and he did not experience harm during that period.” AR 4. In addition,
Rivas Palencia’s mother had been able to safely live in Honduras, which suggested
that the family had not been targeted for harm.
The BIA further concluded that Rivas Palencia failed to establish that “he
would be unable to safely relocate within Honduras.” Id. When Rivas Palencia
was asked why he had not relocated within Honduras, the BIA explained, he
answered that he had not wanted to leave his mother and that there were high
levels of crime throughout Honduras. Although crime was rampant in Honduras,
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the BIA explained that “an alien’s fear of criminality is not a basis for asylum.” Id.
Because Rivas Palencia failed to establish a well-founded fear of persecution in
Honduras and that he would be unable to relocate within Honduras, the BIA
concluded that he was not entitled to asylum. The BIA then used the same
reasoning to determine that Rivas Palencia was ineligible for withholding of
removal or protection under the CAT. Rivas Palencia filed a petition for review in
our Court.
II. ANALYSIS
A. Despite the Omissions in the Notice to Appear, the Immigration Court Had Jurisdiction over Rivas Palencia’s Removal Proceedings.
We begin with Rivas Palencia’s argument that the immigration court lacked
jurisdiction over his removal proceedings because the NTA did not indicate the
time and place of the removal hearing. We review de novo issues of subject matter
jurisdiction. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006).
We agree with the BIA that the immigration court was vested with jurisdiction
over the removal proceedings.
The INA provides that an immigration judge shall conduct proceedings to
determine whether a noncitizen is removable from the United States. 8 U.S.C.
§ 1229a(a)(1). At the initiation of removal proceedings, the noncitizen must be
served with an NTA specifying, among other things, the nature of the proceedings,
the charges against the noncitizen, the requirement that the noncitizen provide 8 Case: 19-10711 Date Filed: 01/23/2020 Page: 9 of 17
address and telephone contact information, the consequences of failing to appear at
a removal hearing, and “[t]he time and place at which the proceedings will be
held.” Id. § 1229(a)(1). The INA does not expressly provide the conditions upon
which jurisdiction vests with the immigration judge, but regulations state that
“[j]urisdiction vests, and proceedings before an Immigration Judge commence,
when a charging document is filed with the Immigration Court.” 8 C.F.R.
§ 1003.14(a).
In Pereira, the Supreme Court recently considered a question “at the
intersection of” § 1229(a), which sets forth the contents of an NTA, and the “stop-
time” rule for cancellation of removal in 8 U.S.C. § 1229b(d)(1). 138 S. Ct. at
2109-10. To be eligible for cancellation of removal, a noncitizen must be
continuously physically present in the United States for a certain length of time,
and the stop-time rule states that the period of continuous physical presence stops,
in certain circumstances, “when the alien is served a notice to appear under section
1229(a).” 8 U.S.C. § 1229b(d)(1). In Pereira, the Supreme Court held that a
putative NTA that failed to specify either the time or place of the removal
proceedings did not trigger the stop-time rule and thus did not end the noncitizen’s
continuous physical presence in the United States for purposes of cancellation of
removal eligibility. 138 S. Ct. at 2110. The Supreme Court reasoned that a
“putative notice to appear that fails to designate the specific time or place of the
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noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’
and so does not trigger the stop-time rule.” Id. at 2113-14 (quoting 8 U.S.C.
§ 1229b(d)(1)).
In Perez-Sanchez v. United States Attorney General, we considered a
petitioner’s claim that the agency “never had jurisdiction over his removal case”
when his initial NTA failed to include the time or date of his removal hearing.
935 F.3d 1148, 1150 (11th Cir. 2019). Although the NTA was “unquestionably
deficient” under § 1229(a) because it did not specify the time or date of the
removal hearing, we held that the defect did not deprive the agency of jurisdiction
over the removal proceedings because the statutory “time-and-place requirement”
did not “create a jurisdictional rule,” but was instead a “claim-processing rule.” Id.
at 1153-55. Having determined that the agency properly exercised jurisdiction
over the petitioner’s removal proceedings, we denied the portion of his petition
raising this jurisdictional issue. Id. at 1157.
Our decision in Perez-Sanchez forecloses Rivas Palencia’s jurisdictional
challenge. Even though Rivas Palencia’s NTA failed to specify the time and date
of his removal hearing, Perez-Sanchez establishes that the agency had jurisdiction
over his immigration proceedings.2
2 Rivas Palencia could have raised a non-jurisdictional argument that the agency failed to follow its claims-processing rules governing the procedural steps it was required to take in order to docket a case before an immigration judge. See Perez-Sanchez, 935 F.3d at 1157. But he
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B. Substantial Evidence Supports the BIA’s Denial of Rivas Palencia’s Asylum Application.
We now turn to Rivas Palencia’s argument that the BIA erred in concluding
that he was ineligible for asylum. Because the BIA issued its own decision, we
review only that decision, except to the extent that the BIA expressly adopted or
explicitly agreed with the immigration judge’s opinion. Tang v. U.S. Att’y Gen.,
578 F.3d 1270, 1275 (11th Cir. 2009). 3 “We review the BIA’s legal conclusions
de novo and its factual determinations under the substantial evidence test.” Lopez
v. U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019). Under the substantial
evidence test, we will affirm the BIA’s factual findings as long as they are
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. (internal quotation marks omitted). “We will reverse
the BIA’s factual findings only if the record compels reversal, and the mere fact
forfeited this argument by failing to challenge the validity of the NTA before the immigration judge. See Pierre-Paul v. Barr, 930 F.3d 684, 692 (5th Cir. 2019), petition for cert. filed. No. 19-779 (U.S. Dec. 16, 2019). 3 Under this standard, Rivas Palencia argues that we should review the immigration judge’s decision regarding his credibility and membership in a particular social group because the BIA “simply adopted the [immigration judge’s] flawed reasoning, factual determinations, and non-existent credibility determination.” Petitioner’s Br. at 17. We disagree with his characterization of the BIA’s decision. The BIA did not expressly adopt or agree with any reasoning from the immigration judge about Rivas Palencia’s credibility or his membership in a particular social group. In its decision, the BIA instead focused on different elements of the asylum claim, explaining that Rivas Palencia failed to establish he had an objectively reasonable fear of persecution in Honduras and would be unable to safely relocate within Honduras. We thus do not review the immigration judge’s decision regarding Rivas Palencia’s credibility or membership in a particular social group because the BIA did not expressly adopt or agree with these portions of the immigration judge’s decision.
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that the record may support a contrary conclusion is insufficient to justify reversal
of the BIA’s findings.” Id.
An undocumented immigrant who is present in the United States may apply
for asylum. 8 U.S.C. § 1158(a)(1). The government has discretion to grant asylum
if the applicant establishes that he is a “refugee.” Id. § 1158(b)(1)(A). A refugee
is a person “who is unable or unwilling to return to, and is unable or unwilling to
avail himself . . . of the protection of, [his . . . country of nationality] 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.” Id.
§ 1101(a)(42)(A).
To establish asylum eligibility, the applicant must, with specific and credible
evidence, show “(1) past persecution on account of a statutorily listed factor,” or
(2) “a well-founded fear that the statutorily listed factor will cause . . . future
persecution.” Id. (internal quotation marks omitted). Under the law, persecution is
an “extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation” and “mere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
(alteration adopted) (internal quotation marks omitted).
Here, Rivas Palencia has not argued that he is entitled to asylum based on
past persecution, so we focus our analysis on whether substantial evidence
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supports the BIA’s determination that he failed to meet his burden of proving a
well-founded fear of future persecution. In order to establish a well-founded fear
of future persecution, an applicant must show the following: “(1) he fears
persecution based on his membership in a particular social group, political opinion,
or other statutorily listed factor; (2) there is a reasonable possibility that he will
suffer persecution if removed to his native country; and (3) he is unable or
unwilling to return to his native country because he fears persecution.” Zheng v.
U.S. Att’y Gen., 451 F.3d 1287, 1291 (11th Cir. 2006). 4 The applicant’s fear must
be “both subjectively genuine and objectively reasonable.” Id. An applicant’s
credible testimony that he genuinely fears persecution may satisfy the subjective
component. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006). And
evidence of past persecution or a valid reason to fear future persecution may fulfill
the objective component. Id. We have cautioned that “[o]nly in a rare case does
the record compel the conclusion that an applicant for asylum . . . has a well-
founded fear of future persecution.” Diallo v. U.S. Att’y Gen., 596 F.3d 1329,
1332 (11th Cir. 2010) (alteration adopted) (internal quotation marks omitted).
4 An applicant need not establish a reasonable possibility of persecution if he instead proves “that he is a member of, or is identified with, a group that is subjected to a ‘pattern or practice’ of persecution in his country of nationality.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009) (quoting 8 C.F.R. § 208.13(b)(2)(iii)). Rivas Palencia does not contend that he is a member of such a group.
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Even if an applicant satisfies these requirements, he does not have a well-
founded fear of future persecution if he could avoid persecution by safely
relocating within his country of nationality. See 8 C.F.R. § 208.13(b)(2)(iii).
When the alleged persecutor is a private individual, the applicant bears the burden
of demonstrating that he cannot safely relocate within his country of nationality.
Id. § 208.13(b)(3)(i).
Here, the BIA determined that Rivas Palencia failed to demonstrate a
reasonable possibility that he would be subject to persecution if he returned to
Honduras. Record evidence supports this conclusion. Although Rivas Palencia
was threatened by Gonzalez’s family after their uncle’s murder, the record
evidence shows that for a year after Gonzalez’s uncle was murdered, Rivas
Palencia remained in his hometown without being physically harmed. The fact
that Rivas Palencia successfully avoided harm for this extended period of time is
evidence that there is not a reasonable possibility that he would suffer future
prosecution if he returned to Honduras. See Zheng, 451 F.3d at 1292 n.3.
Rivas Palencia argues that he reasonably fears returning to Honduras due to
the risk that Gonzalez’s family will kill him in retribution for their uncle’s murder.
Certainly, Rivas Palencia testified that he had this fear. But, under the substantial
evidence standard, we are not asking whether there is any evidence that supports
Rivas Palencia’s position because the mere fact that the record may support the
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contrary conclusion is insufficient to justify a reversal. See Lopez, 914 F.3d at
1297. On this record, we conclude that substantial evidence supports the BIA’s
conclusion that Rivas Palencia failed to carry his burden to show a reasonable
possibility of future persecution upon his return to Honduras. 5
Rivas Palencia nonetheless urges us to reverse the BIA’s decision because,
he argues, the BIA failed to give reasoned consideration to his argument that he
had a well-founded fear of future persecution. He contends that the substance of
the BIA’s reasoning shows that it “has merely reacted [to] and has not really heard
or thought through [his] claim or arguments.” Petitioner’s Br. at 26.
We acknowledge that “when a decision of an immigration judge or the BIA
is so lacking in reasoned consideration and explanation that meaningful review is
impossible,” it is appropriate to grant a petition for review, vacate the agency’s
decision, and remand for further proceedings. Jeune v. U.S. Att’y Gen., 810 F.3d
792, 803 (11th Cir. 2016). In examining whether there was reasoned
consideration, we look “to see whether the agency has considered the issues raised
5 We note that the BIA also provided a second reason for denying Rivas Palencia’s application: he failed to carry his burden of proving that he could not safely relocate within Honduras. The BIA explained that Rivas Palencia failed to establish that his fear of persecution exists nationwide. Because Rivas Palencia’s asylum claim is based on threats from Gonzalez’s family and he failed to show that he would remain at risk if he relocated within Honduras, we conclude that the record also supports the BIA’s alternative reason for denying asylum. See Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1327-28 (11th Cir. 2001) (concluding that substantial evidence existed to support a finding that the petitioner could safely relocate within his home country when he failed to show that his alleged persecutors operated throughout the entire country).
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and announced its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.” Id. (alterations
adopted) (internal quotation marks omitted). An agency fails to give reasoned
consideration to a claim “when it misstates the contents of the record, fails to
adequately explain its rejection of logical conclusions, or provides justifications for
its decision which are unreasonable and which do not respond to any arguments in
the record.” Id.
The BIA’s decision shows that it gave reasoned consideration to whether
Rivas Palencia had a well-founded fear of future persecution. There is no
indication that the BIA misstated the contents of the record, failed to adequately
explain its rejection of a logical conclusion, or provided an unreasonable
justification for a decision that did not respond to an argument in the record. Rivas
Palencia’s argument that the BIA failed to give reasoned consideration boils down
to an assertion that the record evidence was “clear” and compelled a finding that he
“reasonably fears harm” if he were to return to Honduras. Petitioner’s Br. at 26.
But as we explained above, we cannot say that the record compels this conclusion
given the evidence showing that Rivas Palencia continued to live in Honduras for
over a year after Gonzalez’s uncle was murdered. We thus conclude that the BIA
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did not err in finding that Rivas Palencia failed to demonstrate that he had an
objectively reasonable fear of persecution.6
Because substantial evidence supports the BIA’s determination that Rivas
Palencia failed to satisfy the standard for asylum eligibility, we also conclude that
substantial evidence supports the BIA’s conclusion that he failed to satisfy the
higher standards for withholding of removal or CAT relief. See Zheng, 451 F.3d at
1292 (recognizing that when a petitioner fails to establish a claim of asylum on the
merits, he also fails to establish eligibility for withholding of removal or protection
under the CAT).
III. CONCLUSION
For the foregoing reasons, Rivas Palencia’s petition is denied.
PETITION DENIED.
6 Rivas Palencia also argues that the BIA failed to give reasoned consideration to his claim by failing to address whether he was a member of a particular social group. Because the BIA affirmed the denial of Rivas Palencia’s asylum claim on the ground that he failed to establish a well-founded fear of persecution, it was not required to address the other elements of his claim, including whether he was a member of a particular social group. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015).