USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12916 Non-Argument Calendar ________________________
Agency No. A208-151-942
MARIA CLEMENCIA DIEGO-FRANCISCO, GASPAR ALEXANDER GASPAR-DIEGO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent. ________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(April 22, 2021)
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Maria Clemencia Diego-Francisco, on behalf of herself and her son Gaspar,
both natives and citizens of Guatemala, seeks review of the Board of Immigration USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 2 of 9
Appeals’s final order affirming the immigration judge’s denial of her application for
asylum, withholding of removal, humanitarian asylum, and relief under the United
Nations Convention Against Torture. Diego-Francisco challenges the agency’s
findings that (1) the government rebutted the presumption that she has a well-
founded fear of future persecution, (2) she is not eligible for withholding of removal,
and (3) she has not met the standard for humanitarian asylum. Because substantial
evidence supports those findings, we deny the petition.
I.
Diego-Francisco grew up in Guatemala with her parents and thirteen siblings.
She belongs to a Mayan indigenous group Q’anjob’al and speaks only the Mayan
language Kanjobal. When she was a child, her father would get drunk and beat his
wife and children. Even when not drunk, he would force the children, from a very
young age, to help with the farming, collecting firewood, and other strenuous chores.
There was often too little to eat. And Diego-Francisco was only able to attend two
years of school. As her brothers got older, three of them began to join their father in
beating Diego-Francisco, her mother, and her sisters. Those beatings would happen
two to three times a week. And Diego-Francisco’s brothers also raped her—two or
three times.
When Diego-Francisco was nineteen, she moved about a 45-minute walk from
her family home to live with her partner—Mario Gaspar—and his parents, who she
2 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 3 of 9
refers to as her in-laws. She and Gaspar had their first child, a son, about a year later.
Shortly after that, Gaspar left to find work in the United States so that he could
support his budding family. Diego-Francisco and their son stayed in Guatemala. She
continued to live with both of Gaspar’s parents until her father-in-law died a few
months later. Then, for the next six or seven years, Diego-Francisco and her son
lived alone with her mother-in-law. At no point during that eight-year period did
Diego-Francisco’s father or brothers ever harm her. In fact, they had almost no
interaction at all. Occasionally, a brother would stop by and “demand money,” but
Diego-Francisco’s mother-in-law would shoo him away without problem. Diego-
Francisco never even had to see or speak to any of them.
Also, sometime after her father-in-law died, Diego-Francisco and her mother-
in-law were forced to attend rallies and other events supporting the town’s mayor.
Heavy fines and other penalties were imposed on anyone who did not attend. At one
of these rallies, the mayor shot a man who ran a radio station that the mayor disliked.
While Diego-Francisco and her mother-in-law were attending another rally,
unknown men robbed their house. Diego-Francisco speculated that gang-members
were involved, but no evidence tied the robbery to a gang, and she never had any
other encounters with gangs.
Six months to a year later, Diego-Francisco entered the United States with her
son and applied for asylum, withholding of removal, and CAT relief. In the three
3 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 4 of 9
years between filing her application for asylum and attending her hearing, she and
Gaspar had a second child, a daughter. At her hearing, Diego-Francisco credibly
testified to the above facts. She also offered Guatemalan court documents showing
that, after she had moved out, her parents had attended a court-ordered mediation
that resulted in an agreement that the parents would live separately for an indefinite
period of time. The court also ordered her father to “not cause more harm to his
wife” and to “faithfully fulfill this agreement.” Diego-Francisco testified that her
father did not care about the law or the court’s order. But she did not provide any
evidence that her mother had returned to court to enforce the order, and there was
evidence that her father now lives with another woman.
Diego-Francisco also offered various country reports and a psychological
evaluation in support of her application. The country reports reflect civil strife in
Guatemala, such as a rise in crime—specifically drug and gang activity. The
psychological evaluation found that in the past Diego-Francisco “had at least mild
to moderate depression, anxiety and PTSD.” But she was no longer depressed or
anxious and no longer had PTSD. Importantly, the report explained that her
symptoms of anxiety and depression began shortly after her and her mother-in-law’s
house was robbed, around seven years after moving out of her family home.
The immigration judge found Diego-Francisco credible, and, after
considering all of the evidence, found that Diego-Francisco had not shown past
4 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 5 of 9
persecution or a well-founded fear of future persecution based on her political
opinion or her race. But the immigration judge found that she had established past
persecution because of her family membership, so the immigration judge presumed
that she had a well-founded fear of future persecution on that basis. The immigration
judge, however, found that the government had rebutted that presumption by
showing that Diego-Francisco had been able to live in Guatemala without suffering
any harm from her family for eight years before coming to the United States. The
immigration judge additionally held that Diego-Francisco did not meet the standard
for humanitarian asylum because she had not shown that her past persecution had
“long-lasting effects,” or that she would suffer “other serious harm” unrelated to her
past persecution in Guatemala. The immigration judge also denied withholding of
removal and CAT relief.
Diego-Francisco appealed to the BIA, though she did not meaningfully
challenge the immigration judge’s determination that she was not eligible for asylum
based on her political opinion or race or the denial of CAT relief. The BIA affirmed,
and Diego-Francisco timely petitioned this Court for review.
II.
We limit our review to the BIA’s decision, reviewing the immigration judge’s
decision only to the extent that the BIA expressly adopts it. Perez-Zenteno v. U.S.
Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). We review the BIA’s legal
5 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 6 of 9
conclusions de novo, id., and its factual findings under the “highly deferential
substantial evidence test,” Adefemi v.
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USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12916 Non-Argument Calendar ________________________
Agency No. A208-151-942
MARIA CLEMENCIA DIEGO-FRANCISCO, GASPAR ALEXANDER GASPAR-DIEGO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent. ________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(April 22, 2021)
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Maria Clemencia Diego-Francisco, on behalf of herself and her son Gaspar,
both natives and citizens of Guatemala, seeks review of the Board of Immigration USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 2 of 9
Appeals’s final order affirming the immigration judge’s denial of her application for
asylum, withholding of removal, humanitarian asylum, and relief under the United
Nations Convention Against Torture. Diego-Francisco challenges the agency’s
findings that (1) the government rebutted the presumption that she has a well-
founded fear of future persecution, (2) she is not eligible for withholding of removal,
and (3) she has not met the standard for humanitarian asylum. Because substantial
evidence supports those findings, we deny the petition.
I.
Diego-Francisco grew up in Guatemala with her parents and thirteen siblings.
She belongs to a Mayan indigenous group Q’anjob’al and speaks only the Mayan
language Kanjobal. When she was a child, her father would get drunk and beat his
wife and children. Even when not drunk, he would force the children, from a very
young age, to help with the farming, collecting firewood, and other strenuous chores.
There was often too little to eat. And Diego-Francisco was only able to attend two
years of school. As her brothers got older, three of them began to join their father in
beating Diego-Francisco, her mother, and her sisters. Those beatings would happen
two to three times a week. And Diego-Francisco’s brothers also raped her—two or
three times.
When Diego-Francisco was nineteen, she moved about a 45-minute walk from
her family home to live with her partner—Mario Gaspar—and his parents, who she
2 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 3 of 9
refers to as her in-laws. She and Gaspar had their first child, a son, about a year later.
Shortly after that, Gaspar left to find work in the United States so that he could
support his budding family. Diego-Francisco and their son stayed in Guatemala. She
continued to live with both of Gaspar’s parents until her father-in-law died a few
months later. Then, for the next six or seven years, Diego-Francisco and her son
lived alone with her mother-in-law. At no point during that eight-year period did
Diego-Francisco’s father or brothers ever harm her. In fact, they had almost no
interaction at all. Occasionally, a brother would stop by and “demand money,” but
Diego-Francisco’s mother-in-law would shoo him away without problem. Diego-
Francisco never even had to see or speak to any of them.
Also, sometime after her father-in-law died, Diego-Francisco and her mother-
in-law were forced to attend rallies and other events supporting the town’s mayor.
Heavy fines and other penalties were imposed on anyone who did not attend. At one
of these rallies, the mayor shot a man who ran a radio station that the mayor disliked.
While Diego-Francisco and her mother-in-law were attending another rally,
unknown men robbed their house. Diego-Francisco speculated that gang-members
were involved, but no evidence tied the robbery to a gang, and she never had any
other encounters with gangs.
Six months to a year later, Diego-Francisco entered the United States with her
son and applied for asylum, withholding of removal, and CAT relief. In the three
3 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 4 of 9
years between filing her application for asylum and attending her hearing, she and
Gaspar had a second child, a daughter. At her hearing, Diego-Francisco credibly
testified to the above facts. She also offered Guatemalan court documents showing
that, after she had moved out, her parents had attended a court-ordered mediation
that resulted in an agreement that the parents would live separately for an indefinite
period of time. The court also ordered her father to “not cause more harm to his
wife” and to “faithfully fulfill this agreement.” Diego-Francisco testified that her
father did not care about the law or the court’s order. But she did not provide any
evidence that her mother had returned to court to enforce the order, and there was
evidence that her father now lives with another woman.
Diego-Francisco also offered various country reports and a psychological
evaluation in support of her application. The country reports reflect civil strife in
Guatemala, such as a rise in crime—specifically drug and gang activity. The
psychological evaluation found that in the past Diego-Francisco “had at least mild
to moderate depression, anxiety and PTSD.” But she was no longer depressed or
anxious and no longer had PTSD. Importantly, the report explained that her
symptoms of anxiety and depression began shortly after her and her mother-in-law’s
house was robbed, around seven years after moving out of her family home.
The immigration judge found Diego-Francisco credible, and, after
considering all of the evidence, found that Diego-Francisco had not shown past
4 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 5 of 9
persecution or a well-founded fear of future persecution based on her political
opinion or her race. But the immigration judge found that she had established past
persecution because of her family membership, so the immigration judge presumed
that she had a well-founded fear of future persecution on that basis. The immigration
judge, however, found that the government had rebutted that presumption by
showing that Diego-Francisco had been able to live in Guatemala without suffering
any harm from her family for eight years before coming to the United States. The
immigration judge additionally held that Diego-Francisco did not meet the standard
for humanitarian asylum because she had not shown that her past persecution had
“long-lasting effects,” or that she would suffer “other serious harm” unrelated to her
past persecution in Guatemala. The immigration judge also denied withholding of
removal and CAT relief.
Diego-Francisco appealed to the BIA, though she did not meaningfully
challenge the immigration judge’s determination that she was not eligible for asylum
based on her political opinion or race or the denial of CAT relief. The BIA affirmed,
and Diego-Francisco timely petitioned this Court for review.
II.
We limit our review to the BIA’s decision, reviewing the immigration judge’s
decision only to the extent that the BIA expressly adopts it. Perez-Zenteno v. U.S.
Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). We review the BIA’s legal
5 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 6 of 9
conclusions de novo, id., 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). Under the “substantial evidence test,” 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)). Issues that the BIA did not
reach are not properly before us. Gonzalez, 820 F.3d at 403.
To establish eligibility for asylum, an applicant must offer “credible, direct,
and specific evidence in the record,” see Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d
486, 492–93 (11th Cir. 2013) (quotation marks omitted), that demonstrates a well-
founded fear of future persecution based on one of five protected grounds: “race,
religion, nationality, membership in a particular social group, or political opinion,”
8 C.F.R. § 208.13(b). The BIA assumed without deciding that Diego-Francisco’s
immediate family was a cognizable social group, and we must make the same
assumption. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
The testimony of an applicant, if found to be credible, may alone be sufficient
to establish a well-founded fear of future persecution. 8 C.F.R. § 208.16(c)(2). An
applicant is presumed to have a well-founded fear of future persecution if she can
establish past persecution. Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir.
2013). But the government can rebut that presumption by showing either (1) a
6 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 7 of 9
fundamental change in circumstances, or (2) the applicant’s ability to avoid future
persecution by reasonably relocating within her home country. 8 C.F.R.
208.13(b)(1)(i).
Substantial evidence supports the immigration judge’s finding that the
government rebutted the presumption that Diego-Francisco has a well-founded fear
that she will suffer persecution if she returns to Guatemala. First, as to changed
circumstances, Diego-Francisco is no longer a minor required to remain in her
father’s home. In fact, she moved out of that house around fourteen years ago and
has not been harmed by her family since then. Additionally, the record establishes
that the Guatemalan government is willing to step in if the abuse began again. After
her mother brought the issue to a court (around six years after Diego-Francisco
moved out), it ordered her father to live separately for a time and “not to cause more
harm to his wife.” Second, as to reasonable ability to relocate, for eight years after
moving out of her family’s house, she lived in Guatemala only a 45-minute walk
from her childhood home and for many of those years she lived only with her
mother-in-law. During those eight years, no one in her family harmed her. Plus, her
ability to successfully find work and do well in the United States, even though she
speaks no English, indicates that she could reasonably move to other areas of
Guatemala and start anew.
7 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 8 of 9
Because substantial evidence supports the agency’s denial of asylum, Diego-
Francisco is necessarily unable to show that she is eligible for withholding of
removal. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
III.
We review the denial of humanitarian asylum under the substantial-evidence
test. See Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1201 (11th Cir. 2009). If an
applicant has established past persecution but the government has rebutted the well-
founded-future-fear presumption, an applicant may still obtain humanitarian asylum
if (1) the applicant shows that there are “compelling reasons” not to return to her
country, or (2) she establishes a reasonable possibility that she will suffer “other
serious harm” unrelated to her past persecution if removed to that country. Id.; 8
C.F.R. § 208.13(b)(1)(iii). To demonstrate “compelling reasons” for humanitarian
asylum, an applicant must show “severe harm and long-lasting effects” from the past
persecution. Mehmeti, 572 F.3d at 1200 (cleaned up). To establish “other serious
harm,” the possible future harm must equal the severity of persecution. Matter of L-
S-, 25 I. & N. Dec. 705, 714 (B.I.A. 2012). Humanitarian asylum is reserved for the
“most extraordinary cases.” Mehmeti, 572 F.3d at 1200–01.
Here, substantial evidence supports the agency’s denial of humanitarian
asylum. The record supports the finding that the effects of Diego-Francisco’s
family’s mistreatment were not long lasting. The psychological evaluation states that
8 USCA11 Case: 20-12916 Date Filed: 04/22/2021 Page: 9 of 9
Diego-Francisco “had at least mild to moderate depression, anxiety and PTSD, while
in Guatemala and extending into her arrival in the United States.” But she is no
longer anxious or depressed and shows no signs of PTSD. Further, the symptoms of
anxiety, depression, and PTSD did not begin until shortly after her house was
robbed, around seven years after her father and brothers had stopped abusing her.
The timing indicates that her past persecution did not cause the psychological issues.
Nor does the record compel a finding that Diego-Francisco would suffer
“other serious harm” if she returned to Guatemala. The immigration judge
considered the country reports that Diego-Francisco submitted and noted the “civil
strife” and rise in crime, particularly in gang and drug crime, in Guatemala. But the
immigration judge also noted that Diego-Francisco had no encounters with crime
while living in Guatemala other than one robbery that occurred while she was not
home. Substantial evidence supports the immigration judge’s decision that Diego-
Francisco failed to establish a reasonable possibility that she would suffer serious
harm if she returned to Guatemala.
IV.
For the foregoing reasons, we deny the petition for review.
PETITION DENIED.