Luis Alfonso Tijerino-Sevilla v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 18, 2020
• Docket: 20-11274
• Status: Unpublished

Opinion

USCA11 Case: 20-11274 Date Filed: 12/18/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11274 Non-Argument Calendar ________________________

Agency No. A201-705-488

LUIS ALFONSO TIJERINO-SEVILLA, a.k.a. Lolita Tijerino-Sevilla,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(December 18, 2020)

Before WILLIAM PRYOR, Chief Judge, MARTIN and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 20-11274 Date Filed: 12/18/2020 Page: 2 of 5

Luis Alfonso Tijerino-Sevilla, a native and citizen of Nicaragua, petitions

for review of a decision that affirmed the denial of her applications for asylum and

for withholding of removal under the Immigration and Nationality Act, 8 U.S.C.

§§ 1158(a), 1231(b)(3), and for relief under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

8 C.F.R. § 208.16(c). Tijerino sought immigration relief based on her membership

in the social groups of transgender women, sexual minorities, and lesbian, gay,

bisexual, and transgender persons in Nicaragua. The Board of Immigration

Appeals affirmed summarily the findings of an immigration judge that Tijerino

suffered no past persecution, that she lacked a well-founded fear of future

persecution, that she could not satisfy the higher standard required for withholding

of removal, and it was unlikely she would be tortured if she returned to Nicaragua.

We deny Tijerino’s petition.

When the Board of Immigration Appeal affirms a decision of an

immigration judge without opinion, we review the immigration judge’s decision.

Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1235 (11th Cir. 2006). We review that

decision to determine whether it is “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Lopez v. U.S. Att’y Gen.,

914 F.3d 1292, 1297 (11th Cir. 2019) (quoting Indrawati v. U.S. Att’y Gen., 779

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F.3d 1284, 1297 (11th Cir. 2015)). We will not disturb the decision unless the

record “compels” a contrary conclusion. Id.

Substantial evidence supports the finding that Tijerino was not entitled to

asylum based on past persecution. Tijerino alleged that she was persecuted once as

a child, but she omitted that incident from her appeal to the Board. See Jeune v.

U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016). Tijerino also alleged that, as

an adult, she was sexually assaulted by gang members at the direction of the owner

of a bar who sought to hire her to work as a prostitute. But Tijerino’s evidence “of

private violence . . . [or having] been the victim of criminal activity d[id] not

constitute evidence of persecution based on a statutorily protected ground,” Ruiz v.

U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Tijerino testified that the

owner of the bar ordered the attack on her because she refused his offer of

employment. See id. at 1257; 8 U.S.C. § 1158(b)(1)(B)(i). Tijerino reported neither

attack to the police, see Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir.

2007), and after her childhood encounter, she lived with her grandmother in

Managua without incident before she moved to Mexico, see 8 C.F.R.

§ 208.13(b)(3)(i). Tijerino testified that the owner of a bar was a police officer, but

on appeal to the Board she did not dispute the immigration judge’s finding that the

owner acted as a “rogue official” whose wrongdoing was not sanctioned by law

enforcement. See Lopez, 504 F.3d at 1345.

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Substantial evidence also supported the finding that Tijerino lacked a good

reason to fear future persecution that would warrant asylum or withholding of

removal. Tijerino offered no evidence that she would be singled out for persecution

in Nicaragua because she was a transgender woman. See Forgue v. U.S. Att’y Gen.,

401 F.3d 1282, 1286 (11th Cir. 2005). She had no further contact with any of her

assailants. Tijerino submitted evidence of violence by the government against

members of sexual minorities, but the mistreatment was perpetrated against

participants in anti-government protests. A human rights report stated that societal

discrimination against transgender women occurs, but the report also stated that

Nicaraguan law afforded citizens equal protection and did not regulate sexual

activities of consenting adults. The record did not compel a conclusion that any

discrimination and mistreatment was so extreme and pervasive as to establish a

pattern or practice of persecution of members of sexual minorities in Nicaragua.

See Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1291 (11th Cir. 2020).

Because Tijerino could not prove she was entitled to asylum, she necessarily could

not satisfy the more stringent standard to qualify for withholding of removal. D-

Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).

Substantial evidence also supported the decision to deny Tijerino relief

under the Convention. Tijerino submitted no evidence that she or any member of a

sexual minority in Nicaragua had been tortured. See Jean-Pierre v. U.S. Att’y Gen.,

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500 F.3d 1315, 1324 (11th Cir. 2007) (requiring an applicant to prove that she

“would be individually and intentionally singled out for harsh treatment”). The

government of Nicaragua was neither aware of nor did it acquiesce in either

instance when Tijerino was sexually abused. See Reyes-Sanchez v. U.S. Att’y Gen.,

369 F.3d 1239, 1242 (11th Cir. 2004) (torture must be inflicted “by or with the

acquiescence of the government”). And Tijerino’s general fear of being tortured

based on evidence of some mistreatment of sexual minorities in Nicaraguan society

does not compel a conclusion that she will more likely than not be tortured if

returned to her homeland. See Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1324

(11th Cir. 2007) (requiring evidence of more than “generalized mistreatment” to

qualify for protection under the Convention).

We DENY Tijerino’s petition for review.