Maria Elena Cerrato-Chirinos v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 14, 2020
• Docket: 19-11678
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11678 Non-Argument Calendar ________________________

Agency No. A206-483-146

MARIA ELENA CERRATO-CHIRINOS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(January 14, 2020) Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Maria Elena Cerrato-Chirinos, a native and citizen of Honduras, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) affirming the Case: 19-11678 Date Filed: 01/14/2020 Page: 2 of 12

denial of her application for asylum. After thorough consideration, we deny the

petition for review.

I.

In May 2012, Cerrato-Chirinos entered the United States at the Texas border

without inspection, admission, or parole. She then settled in Pompano Beach,

Florida. On May 2, 2014, Cerrato-Chirinos was served with a notice to appear

before an immigration judge (“IJ”). The notice to appear charged her with

removability under 8 U.S.C. § 1182(a)(6)(A)(i). This statute provides for removal

of any noncitizen present in the United States without being admitted or paroled, or

who arrived in the United States at any time or place other than as designated by

the Attorney General. Cerrato-Chirinos admitted the factual allegations in the

notice to appear and conceded the charge of removability.

On May 30, 2017, Cerrato-Chirinos, with assistance of counsel, filed an

I-589 Application for Asylum and for Withholding of Removal. In her I-589,

Cerrato-Chirinos recounted how her brother, Juan Ramon Chirinos, was killed by

gang members in February 2012 as he was walking to get his bicycle. Cerrato-

Chirinos said she was not present at her brother’s murder and did not know which

gang was responsible. She said that witnesses told her the murderers “had gang

tattoos.” Cerrato-Chirinos also said that, shortly after the murder, gang members

began asking her neighbors about her and her family’s whereabouts. Because of

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the gang members’ expressed desire to “get revenge on Juan’s family,” she said

her “whole family became the target of gang violence” and began living “in

hiding.” She sought asylum and withholding of removal due to her fear that the

gang members will kill her upon her return to Honduras and that the “very corrupt”

Honduran police would “protect the gangs” instead of her. Her application did not

discuss any other incidents as the basis for this fear. At a hearing before the IJ on

October 10, 2017, Cerrato-Chirinos’s counsel said she planned to supplement the

record in advance of the hearing on the merits of her I-589.

In support of her application, Cerrato-Chirinos submitted her own sworn

declaration. In the declaration, Cerrato-Chirinos stated that her brother was

murdered outside a church, that she was inside the church at the time of his

murder, and that she found his body afterwards. She again said that she knew the

men who did this were gang members because eyewitnesses told her that the

murderers had gang tattoos. She also made an additional allegation of gang-related

violence, saying that, in March 2012, she was deliberately hit by a car while she

drove her motorcycle to work. She said that, before she was hit, somebody in the

car yelled at her to “stop or else they’d shoot [her].” She submitted medical

evidence in support of her claim that the motorcycle crash resulted in scars and

other injuries.

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A hearing on the merits of Cerrato-Chirinos’s I-589 was held before the IJ

on January 4, 2018. At the hearing, Cerrato-Chirinos testified that she personally

saw the gang members running away and that she knew they were members of the

Mara 18 gang because they had tattoos of the number eighteen. The IJ discredited

this testimony as contradicted by Cerrato-Chirinos’s prior statements in her I-589

and supplemental declaration.

The IJ also discredited Cerrato-Chirinos’s statement that her motorcycle

crash was caused by gang members. The IJ could not square the “gravity and

importance” of this incident—which Cerrato-Chirinos indicated was the most

significant incident in Honduras that caused her fear of return—with its omission

from the I-589. The IJ credited the remainder of Cerrato-Chirinos’s testimony but

found that she had not established past persecution or an objectively reasonable

fear of future persecution. The IJ also found that Cerrato-Chirinos had not met her

burden of establishing that Honduran authorities were unable or unwilling to

protect her from the alleged persecution or that she could not safely relocate within

Honduras, as her parents and sisters have done.

Cerrato-Chirinos appealed the IJ’s denial of her I-589 to the BIA. The BIA

dismissed the appeal and affirmed the IJ in all relevant respects. The BIA did not

reach the question of whether Cerrato-Chirinos suffered past persecution or

whether she made out a claim under the Convention Against Torture (“CAT”)

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because she did not raise these issues on appeal. This petition for review timely

followed.

II.

“When the BIA issues a decision, we review the BIA’s decision, except to

the extent that the BIA has expressly adopted the IJ’s decision.” Ruiz v. Gonzales,

479 F.3d 762, 765 (11th Cir. 2007). To the extent the BIA “agreed with the

findings of the [IJ],” we review both decisions. Kazemzadeh v. U.S. Att’y Gen.,

577 F.3d 1341, 1350 (11th Cir. 2009).

The BIA’s findings of fact, including determinations of credibility and the

question of whether the applicant has established persecution on the basis of a

protected ground, are reviewed for substantial evidence. Rodriguez Morales v.

U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007); D-Muhumed v. U.S. Att’y

Gen., 388 F.3d 814, 817–18 (11th Cir. 2004). Under this “highly deferential”

standard, “[w]e view the record evidence in the light most favorable to the

agency’s decision and draw all reasonable inferences in favor of that decision.”

Kazemzadeh, 577 F.3d at 1351 (quotation marks omitted). The Court “may not

substitute its judgment for that of the BIA with respect to credibility findings.” D-

Muhumed, 388 F.3d at 818.

The BIA’s application of relevant law to fact is reviewed de novo. Id.

at 817. We “must affirm the BIA’s decision if it is supported by reasonable,

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substantial, and probative evidence on the record considered as a whole.” Id.

at 818 (quotation marks omitted).

III.

“To be eligible for asylum, an applicant bears the burden of proving that

[she] is a ‘refugee’ within the meaning of the INA.”1 Sanchez Jimenez v. U.S.

Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007) (citing, inter alia, 8 U.S.C.

§ 1158(b)(1)(A)). “A refugee is defined as one who is unable or unwilling to

return to his or her home country ‘because of [past] persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.’” Yang v. U.S. Att’y Gen., 418 F.3d

1198, 1202 (11th Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)).

Cerrato-Chirinos makes three arguments on appeal. First, she challenges

the IJ’s adverse credibility determination regarding the motorcycle crash. Second,

she argues she has established a well-founded fear of persecution. Third, she seeks

to revive her claim that she is a refugee because of past persecution, an argument

which the BIA said she abandoned. Because Cerrato-Chirinos has not met her

1 As noted above, Cerrato-Chirinos initially sought withholding of removal under the CAT but did not appeal the IJ’s denial of her petition on that ground. As a result, we do not address any arguments on this ground she may have made in the proceedings before the IJ. See Najjar v. Ashcroft, 257 F.3d 1262, 1282 n.12 (11th Cir. 2001).

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burden of proving the IJ or the BIA erred in determining any of these issues, we

deny her petition for review.

A.

Cerrato-Chirinos challenges the IJ’s finding that her testimony regarding the

motorcycle crash was not credible. To rebut this adverse finding, Cerrato-Chirinos

must “show that the finding is not supported by specific, cogent reasons or was not

based on substantial evidence.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332

(11th Cir. 2011) (per curiam) (quotation marks omitted). A petitioner’s “own

testimony can suffice where the testimony is believable, consistent, and

sufficiently detailed.” Id. (emphasis and quotation marks omitted).

The BIA affirmed the IJ’s adverse finding on the ground that Cerrato-

Chirinos did not mention the crash in her initial petition for withholding, despite

her later statement identifying the crash as the most significant event that happened

to her in Honduras. Cerrato-Chirinos argues that the BIA’s characterization of the

motorcycle crash as a “new allegation” shows the BIA erred by not considering her

supplemental statement setting forth the details of the motorcycle crash. But the

question is not whether Cerrato-Chirinos timely alleged the motorcycle crash was

caused by the gang members; it is whether it was reasonable for the IJ and the BIA

to find that this allegation was not credible because of its absence from her initial

application. The BIA did not disregard the supplemental statement setting forth

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Cerrato-Chirinos’s recollection of the crash. Rather, the BIA, like the IJ, found

that Cerrato-Chirinos’s failure to mention this allegation in her initial application

cast doubt on the credibility of this assertion. The BIA’s characterization of this

allegation as “new” does not suggest otherwise.

We conclude the BIA and the IJ provided cogent reasons supported by

substantial evidence for this adverse credibility determination. See Forgue v. U.S.

Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (upholding adverse credibility

determination based on substantial evidence).

B.

Cerrato-Chirinos also attacks the finding that she has not established a well-

founded fear of persecution. An applicant may establish a well-founded fear of

persecution by showing she has “a fear of persecution in [her] country of

nationality on account of a protected ground, a ‘reasonable possibility’ of suffering

persecution if [she] returns to that country, and that [she] is unable or unwilling to

return because of [her] fear.” Kazemzadeh, 577 F.3d at 1352 (quoting 8 C.F.R.

§ 208.13(b)(2)(i)). “An applicant does not have a well-founded fear of persecution

if the applicant could avoid future persecution by relocating to another part of the

applicant’s country of nationality . . . if under all the circumstances it would be

reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(2)(ii). The

applicant is presumed to carry her burden of proof by showing that the persecution

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is by a government actor or is government-sponsored, but the presumption can be

rebutted by a showing “that, under all the circumstances, it would be reasonable for

the applicant to relocate.” Kazemzadeh, 577 F.3d at 1352 (quotation marks

omitted) (citing 8 C.F.R. § 208.13(b)(3)).

The BIA first affirmed the IJ’s finding that Cerrato-Chirinos has not

presented a reasonable possibility of future persecution. This finding was based on

Cerrato-Chirinos’s failure to “present[] any evidence establishing that the gang

members who killed her brother have continued to look for her or her family

members in the 6 years since she left Honduras.” Cerrato-Chirinos does not

challenge this finding in her brief, so any objection she might have to it is deemed

abandoned. See Najjar, 257 F.3d at 1282 n.12.

The BIA next held that Cerrato-Chirinos has not demonstrated fear of

persecution by a government or a government-sponsored group and affirmed the

IJ’s finding that she has not carried her burden of showing it would be

unreasonable for her to relocate within Honduras. On this point, Cerrato-Chirinos

says simply that the IJ and the BIA “failed to consider” her testimony and other

evidence that her parents have been “living in hiding and in fear” since her

brother’s murder and the motorcycle crash. But, in fact, the BIA specifically cited

to Cerrato-Chirinos’s testimony, stating that her claim on this point was not enough

to “meet her burden to establish that she could not reasonably relocate within

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Honduras.” The BIA held that this testimony was undermined by the fact that

Cerrato-Chirinos’s parents continue to live in the same town, that her sisters

successfully relocated within Honduras, and that Cerrato-Chirinos did not attempt

to relocate within Honduras before coming to the United States. Cerrato-Chirinos

has not shown us this conclusion was unsupported by substantial evidence.

Finally, the IJ and the BIA both ruled that Cerrato-Chirinos has not

established the government of Honduras would be unable or unwilling to protect

her. The BIA noted Cerrato-Chirinos failed to report the murder or the motorcycle

crash to local authorities in Honduras, something that “generally is fatal to an

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

2007). While the BIA acknowledged that the failure to seek government

protection may be excused if the applicant “convincingly demonstrates that those

authorities would have been unable or unwilling to protect her,” id., the BIA

agreed with the IJ that the evidence submitted by Cerrato-Chirinos did not satisfy

this requirement.

Cerrato-Chirinos challenges this finding on the ground that she and her

family were too fearful to report these run-ins with the gang to Honduran police,

which she alleges—and the IJ acknowledged—has “some level of corruption.”

But Cerrato-Chirinos’s only evidence on this point is “background materials”

showing government corruption is prevalent in Honduras. This type of general

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evidence is not enough to show that the police would have been unable or

unwilling to assist her. See Castillo Munoz v. U.S. Att’y Gen., 786 F. App’x 988,

992 n.3 (11th Cir. 2019) (per curiam) (unpublished) (“[W]here, as here, the

applicant cites general concerns about bribery as her reason for not seeking out

government protection, the agency’s decision will ordinarily survive substantial

evidence review.” (citing, inter alia, Lopez, 504 F.3d at 1345)).

We conclude that the BIA and the IJ had substantial evidence for finding

that Cerrato-Chirinos has not established a well-founded fear of persecution.

C.

The BIA did not consider whether Cerrato-Chirinos established past

persecution—an alternative method of establishing eligibility for asylum—because

she did not present that issue for appeal. Cerrato-Chirinos now says she did not

need to raise the issue on appeal because the IJ made a finding in her favor on this

point. While it is true the IJ said during the merits hearing that the alleged

motorcycle attack constitutes past persecution, it is clear he meant that the

allegations, if true, would constitute a prima facie case of persecution. In this case,

the IJ did not credit Cerrato-Chirinos’s testimony about the motorcycle crash, and

clearly decided that she was not eligible for asylum on the basis of past

persecution. Cerrato-Chirinos appealed from the IJ’s oral decision but she did not

challenge his conclusion that “the past mistreatment of [Cerrato-Chirinos] in her

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home country does not rise to the level of past persecution.” Her failure to

challenge this finding on appeal constitutes abandonment of the issue, and we

cannot consider it. See Najjar, 257 F.3d at 1282 n.12.

IV.

For these reasons, Cerrato-Chirinos’s petition for review is DENIED.