Maria Ercilia Martinez-Gomez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 1, 2021
• Docket: 20-12578
• Status: Unpublished

Opinion

USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12578 ________________________

Agency No. A208-742-381

MARIA ERCILIA MARTINEZ-GOMEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(September 1, 2021)

Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.

PER CURIAM:

Maria Ercilia Martinez-Gomez petitions for review of the Board of

Immigration Appeals’s decision dismissing her appeal of the immigration judge’s USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 2 of 11

denial of her application for asylum.1 After careful review and with the benefit of

oral argument, we deny the petition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Martinez-Gomez is a native and citizen of Honduras. She entered the United

States without inspection and the government charged her with being removable.

Martinez-Gomez conceded removability and filed an application for asylum,

withholding of removal, and relief under the Convention Against Torture.2

Martinez-Gomez alleged in her application that she feared persecution and

torture if removed to Honduras because of her membership in a particular social

group. 3 She stated that she fled Honduras after she was threatened by Mara 18 gang

members. The gang threatened her, Martinez-Gomez alleged, because she was a

single mother and refused to sell drugs for them. She feared the Maras would torture

or kill her if she returned to Honduras because she reported the gang to the police,

but the authorities “had no control over” them and didn’t “protect women or children

1 Although Martinez-Gomez’s daughter is not included in the case caption, she was a derivative applicant on her mother’s asylum application and Martinez-Gomez’s petition for review lists her as a party. Thus, she is a party to this petition. 2 Martinez-Gomez’s petition seeks review of the denial of her asylum claim but does not seek review of the denial of her claims for withholding of removal and relief under the Convention Against Torture. 3 Martinez-Gomez alleged in her application that she was also seeking asylum because of her religion. But she did not rely on this ground at the removal hearing and does not raise any issues related to religious persecution in her petition. 2 USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 3 of 11

from abuse.” In support of her application, Martinez-Gomez submitted articles and

reports describing the conditions and ongoing gang violence in Honduras.

The immigration judge held a hearing on Martinez-Gomez’s application.

Martinez-Gomez told the immigration judge that she had reviewed her application

with her attorney. She swore under oath that the information in her application was

“all true and accurate.” Her attorney stated that Martinez-Gomez’s asylum claim

was based on her membership in the particular social group of single mothers

threatened by gang members for refusing to sell drugs. The government argued that

this wasn’t a cognizable social group and requested Martinez-Gomez’s removal.

The immigration judge observed that “if the parties agree, the court may

swear the respondent to the contents of the application” and rely on the asylum

application to reach its decision. The immigration judge asked whether the parties

wanted to stipulate that if Martinez-Gomez testified “fully,” she would testify

consistently with her application. Her counsel stated—twice—that he wanted “to

stipulate to that.” Her counsel also stated there were “no changes” to Martinez-

Gomez’s claim since her application had been filed.

The immigration judge asked the government if it would stipulate. Counsel

for the government responded that “[i]f you’re going to find that [the proposed social

group] isn’t a ground to move forward and that there’s no basis to do so, then I don’t

have a problem stipulating that this is what she’s going to say.” Martinez-Gomez

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didn’t object to this statement and didn’t seek to withdraw her consent to the

stipulation. The immigration judge accepted the parties’ stipulation that, as to

Martinez-Gomez’s asylum and withholding of removal claims, she would testify

consistently with her application if she “were to testify fully.”

Martinez-Gomez then testified about her claim under the Convention Against

Torture. After her counsel finished questioning her, he didn’t elicit any additional

information related to her asylum claim. The immigration judge then asked

Martinez-Gomez’s counsel if he wished to present argument. Counsel declined to

make a statement and stood on her application.

The immigration judge denied Martinez-Gomez’s application and ordered her

removal. As to Martinez-Gomez’s asylum claim, the immigration judge concluded

that she hadn’t established past persecution because there was “no evidence that the

Maras harmed her” or “did anything to her,” and isolated incidents of threats or

intimidation didn’t amount to persecution. The immigration judge then concluded

there was no evidence establishing a well-founded fear of future persecution. There

was no proof that anyone had threatened Martinez-Gomez or her children since she

left Honduras, the immigration judge observed, even though five of her children still

lived there.

The immigration judge alternatively concluded that Martinez-Gomez had

failed to establish that any persecution was based on a protected ground. There was

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no nexus between Martinez-Gomez’s alleged persecution and a protected ground,

the immigration judge concluded, because her proposed social group—single

mothers threatened by the Mara gang for refusing to sell drugs—was not a

cognizable social group for purposes of asylum. The immigration judge concluded

that Martinez-Gomez’s social group didn’t satisfy the particularity requirement

because it was “amorphous” and “overbroad,” and didn’t satisfy the social

distinction requirement because Martinez-Gomez hadn’t established society’s

recognition of her proposed social group.

The immigration judge concluded that Martinez-Gomez’s claim for

withholding of removal failed for the same reasons as her asylum claim. The

immigration judge then rejected her claim under the Convention Against Torture

because Martinez-Gomez hadn’t established that she would likely be tortured if

removed to Honduras.

The board concluded that the immigration judge hadn’t made any clear errors

of fact, affirmed the immigration judge’s decision, adopted it as the board’s own,

and dismissed Martinez-Gomez’s appeal. The board rejected Martinez-Gomez’s

claim that the immigration judge erred in not conducting a full hearing, concluding

that the parties’ stipulation to waive her testimony was valid. Martinez-Gomez now

petitions for our review of the board’s decision.

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STANDARD OF REVIEW

We review the board’s decision as the agency decision, unless the board

expressly adopts the immigration judge’s opinion or agrees with its reasoning.

Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). When the

board adopts or agrees with the reasoning of the immigration judge’s decision, we

review both decisions. Id. We review de novo a claim that the agency failed to

provide reasoned consideration for its decision or committed legal error. Jeune v.

U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016); Lapaix v. U.S. Att’y Gen., 605

F.3d 1138, 1143 (11th Cir. 2010).

DISCUSSION

Martinez-Gomez argues that: (1) the immigration judge and the board didn’t

give reasoned consideration to her asylum claim; and (2) the immigration judge

erred by not holding a full hearing on her application.

Reasoned Consideration

Martinez-Gomez argues that the immigration judge failed to make findings

on whether her “alternative proposed particular social group of ‘single mothers head

of household’” was a valid social group for asylum purposes. She also faults the

immigration judge and the board for not making findings on the country conditions

in Honduras. Because of these omissions, Martinez-Gomez argues, the immigration

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judge and board didn’t give reasoned consideration to her asylum claim. We

disagree.

An agency must give “reasoned consideration” to a petitioner’s claims, Jeune,

810 F.3d at 803, and “consider the issues raised and announce its decision in terms

sufficient to enable a reviewing court to perceive that it has heard and thought and

not merely reacted,” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)

(citation omitted). The agency is “required to consider all evidence that a petitioner

has submitted.” Jeune, 810 F.3d at 803. But it “need not address specifically each

claim the petitioner made . . . .” Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th

Cir. 2013) (quotation omitted) ), abrogated on other grounds by Nasrallah v. Barr,

140 S. Ct. 1683, 1689 (2020).

We reject Martinez-Gomez’s argument that the immigration judge failed to

give reasoned consideration to her “alternative” claim of a fear of future persecution

“on account of being a single mother.” At the hearing, the immigration judge asked

Martinez-Gomez’s counsel what social group she was relying on as a basis for

asylum. Her counsel responded, “Single mother . . . who has been threatened by the

Maras gang because she refused to sell drugs.” To confirm this was “the theory of

[her] claim,” the immigration judge asked, “So single mother . . . who has been

threatened by the Maras gang because she refused to sell drugs for them,” and

counsel confirmed that was the basis for her claim. The immigration judge asked if

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Martinez-Gomez’s asylum claim was based on “[a]nything else.” The answer was

“[n]o.”

During the asylum hearing, Martinez-Gomez expressly relied on only one

particular social group as a basis for asylum—single mothers threatened by the

Maras for refusing to sell drugs—and the immigration judge gave reasoned

consideration to that one claim. Martinez-Gomez is not entitled to a remand for the

immigration judge to consider a claim she did not rely on at the hearing.

Martinez-Gomez next argues that the immigration judge and the board didn’t

“issue any specific factual findings regarding country conditions evidence.” But the

immigration judge wasn’t required to “address specifically each . . . piece of

evidence” she presented. See Tan, 446 F.3d at 1374 (quoting Morales v. INS, 208

F.3d 323, 328 (1st Cir. 2000)). The immigration judge admitted into evidence the

articles and reports Martinez-Gomez submitted describing the conditions in

Honduras. In its ruling, the immigration judge discussed these documents—which

“reflect[ed] the violence and the crime and the activities of the gangs” in Honduras—

and expressed sympathy for the problems Martinez-Gomez faced in her home

country. Based on the immigration judge’s detailed order of removal, we can

perceive “that it has heard and thought and not merely reacted” to Martinez-Gomez’s

asylum claim generally and to evidence regarding the conditions in Honduras

specifically. See id. at 1374.

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Finally, Martinez-Gomez argues that the immigration judge’s “failure to

address the country conditions evidence” casts doubt on its conclusion that she had

not established future persecution. Because of this alleged failure, she argues, the

immigration judge failed to “evaluate whether there is a pattern or practice of

persecution in Honduras of single mothers.” But, as we explained above, the

immigration judge did give reasoned consideration to the country conditions

evidence. And, as we explained, “single mothers” in Honduras wasn’t the particular

social group that Martinez-Gomez relied on at the removal hearing. The

immigration judge considered the evidence and claims that were put before it.

Because the immigration judge and the board gave reasoned consideration to

Martinez-Gomez’s asylum claim, we must deny this portion of her petition.

Whether Martinez-Gomez Received a Full Hearing

Martinez-Gomez argues that the immigration judge erred by not holding a full

hearing on her asylum claim. She concedes that testimony can be dispensed with

“where the parties stipulate to the contents of the asylum application.” But the

stipulation here was improper, Martinez-Gomez argues, because it “was not the

result of a fair, good faith discussion between the parties,” and because she “was not

asked if the application was complete and did not have an opportunity to add any

additional detail or elaborate on the circumstances surrounding her experiences.”

These arguments cannot be squared with the record.

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The regulations governing asylum claims require that an applicant “take the

stand, be placed under oath, and be questioned as to whether the information in the

written application is complete and correct.” Matter of Fefe, 20 I. & N. Dec. 116,

118 (BIA 1989); accord 8 C.F.R. § 1240.11(c)(3)(iii) (providing that an applicant

“shall be examined under oath on his or her application and may present evidence

and witnesses in his or her own behalf”). The hearing and the examination of the

applicant shouldn’t “stop at this point unless the parties stipulate that the applicant’s

testimony would be entirely consistent with the written materials and that the oral

statement would be believably presented.” Fefe, 20 I. & N. Dec. at 118; see also

Matter of E-F-H-L-, 26 I. & N. Dec. 319, 322 n.3 (BIA 2014), vacated on other

grounds by Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018) (recognizing that,

under Fefe, “a full examination of the applicant might not be strictly required”

following a stipulation, provided that the applicant “testif[ies] under oath as to the

correctness and completeness of the application.”).

Here, Martinez-Gomez swore that the contents of her application were “all

true and accurate.” The immigration judge asked the parties whether they would

stipulate that if Martinez-Gomez testified “fully,” her testimony would be consistent

with her application. Martinez-Gomez’s counsel didn’t seek more time to discuss

the stipulation with the government. Counsel instead stated twice (without

qualification) that he would stipulate. Although the government agreed to stipulate

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provided that the immigration judge ultimately denied Martinez-Gomez’s claim, the

immigration judge didn’t adopt this caveat as part of the stipulation. And Martinez-

Gomez didn’t object to this statement or withdraw her willingness to stipulate. On

these facts, we cannot find that the stipulation the parties voluntarily entered into

was improper or invalid.

Martinez-Gomez maintains that the stipulation was improper because she

swore that her application was accurate but didn’t swear it was complete. But she

stipulated that if she were to testify “fully,” her testimony would be consistent with

her application. “Fully” is just another way of saying “completely.” And, following

Martinez-Gomez’s testimony as to her Convention Against Torture claim, her

counsel didn’t try to elicit testimony relevant to her asylum claim; rather, he had “no

other questions.” Finally, Martinez-Gomez never proffered what additional facts

she would’ve offered had she testified in support of her asylum claim. She therefore

can’t establish that the absence of her testimony prejudiced her or otherwise

constituted reversible error. See Lapaix, 605 F.3d at 1144 (holding that the applicant

“was not denied an opportunity to present her case” where the immigration judge

“[a]t no point . . . refuse[d] to hear admissible testimony,” and the applicant failed

to “demonstrate that, in the absence of the alleged violations, the outcome of the

proceeding would have been different.”).

PETITION DENIED.