Maria Felicita Butista-Lopez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 11, 2020
• Docket: 19-12618
• Status: Unpublished

Opinion

Case: 19-12618 Date Filed: 05/11/2020 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12618 Non-Argument Calendar ________________________

Agency No. A202-086-560

MARIA FELICITA BAUTISTA-LOPEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(May 11, 2020)

Before BRANCH, LAGOA, and HULL, Circuit Judges.

PER CURIAM: Case: 19-12618 Date Filed: 05/11/2020 Page: 2 of 12

Maria Felicita Bautista-Lopez seeks review of a final order of the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of

her application for asylum, withholding of removal, and protection under the

United Nations Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT”). She argues that the BIA committed

numerous errors in concluding she was not entitled to asylum or withholding of

removal, which include (1) determining that the original social groups that she

proposed to the IJ are not cognizable under the Immigration and Nationality Act

(“INA”); (2) concluding she had not established that she is a member of each of

those groups; and (3) affirming the IJ’s conclusion that she had not established the

El Salvadoran government was unable or unwilling to protect her. She further

argues that the BIA erred in failing to address her request that it consider whether

the additional social groups that she proposed on appeal were cognizable or remand

the case to the IJ to examine the issue. Finally, she asserts that she is entitled to

CAT relief, given her reasonable fear that she would be tortured if she returned to

El Salvador and that the government would acquiesce in her torture. After a

review of the record, we deny the petition.

I. Background

Bautista-Lopez, a native and citizen of El Salvador, entered the United

States without valid entry documents or inspection by an immigration officer on

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September 1, 2014. She was immediately detained and later participated in a

credible fear interview regarding abuse by her former partner, Rolando Alonzo

Vasquez (“Rolando”).

An asylum officer served Bautista-Lopez with a notice to appear which

charged that she was removable pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), as an applicant for admission without a valid entry

document. She conceded removability as charged. Bautista-Lopez filed an

application for asylum and withholding of removal. She also requested CAT

relief.

At the merits hearing, Bautista-Lopez, with the assistance of a Spanish

interpreter, testified to the following. She feared to return to El Salvador because

Rolando, a romantic partner with whom she had lived in El Salvador, threatened to

kill her on numerous occasions. She was severely beaten in January 2014, when

Rolando slapped her several times, dunked her head in a sink full of water, and

pushed her down the stairs, which caused her to fracture her ankle. There were

several incidents prior to that one in which Rolando beat her, slapped her, pulled

her hair, and hit her with a closed fist. Bautista-Lopez left Rolando to live with her

parents on three occasions: (1) for a couple of weeks in December 2013; (2) for

four weeks in January 2014, after she had broken her ankle; and (3) from June to

August 2014. Whenever she left Rolando, he would call and tell her that he would

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take her back by force and threaten to harm her family if she did not return to him.

Bautista-Lopez and her parents did not go to the police because they feared that he

would carry out his threats and because Rolanda had “connections” with the Maras

gang in El Salvador. Bautista-Lopez also did not believe that the Salvadoran

police would protect her because they do “nothing” to protect people. Instead, they

immediately release those they detain, and the aggressor typically returns even

angrier towards his victim.

The IJ denied Bautista-Lopez’s application for asylum, withholding of

removal, and CAT relief, concluding that her testimony was not credible and she

failed to provide any persuasive corroborating evidence. The IJ further concluded

that, even if Bautista-Lopez was credible and reasonably corroborated her claims,

she still was not statutorily eligible for asylum based on five additional findings.

First, the IJ found that the harm that she had suffered did not rise to the level of

persecution required by the INA. Second, addressing only one of Bautista-Lopez’s

three proposed social groups 1—“El Salvadoran women in domestic relationships

who are unable to leave”—the IJ concluded that her proposed social group was

legally cognizable under Matter of A-R-C-G-, 2 but she did not show that she was a

1 In her pre-hearing brief, Bautista-Lopez proposed that she fell in three proposed social groups: (1) “El Salvadoran women who are viewed as property by virtue of their position in a domestic relationship”; (2) “El Salvadoran women in domestic relationships who are unable to leave”; and (3) “El Salvadoran women in domestic relationships.” 2 Matter of A-R-C-G-, 26 I. & N. Dec. 388, 389 (BIA 2014). 4 Case: 19-12618 Date Filed: 05/11/2020 Page: 5 of 12

member of that group because she had previously left Rolando and therefore had

the ability to leave him. Third, the IJ found that she failed to show that her

membership in her proposed social group was the central reason for the abuse.

Fourth, the IJ found that she failed to demonstrate that she had a well-founded fear

of future persecution. Fifth, the IJ found that she did not demonstrate that the

Salvadoran government was unable or unwilling to protect her. The IJ further

concluded that, because Bautista-Lopez did not show that she was eligible for

relief under the lower burden of proof for an asylum claim, she could not establish

that she was entitled to withholding of removal. The IJ determined that Bautista-

Lopez’s CAT claim failed as well, given that the Salvadoran government’s efforts

to combat violence against women, although not entirely successful, supported a

finding that it would not acquiesce in such conduct.

Bautista-Lopez appealed to the BIA. 3 The BIA affirmed the IJ’s decision. It

concluded that the IJ did not clearly err in finding that she was not a member of her

proposed group, “El Salvadoran women in domestic relationships who are unable

3 Matter of A-B-, 27 I. & N. Dec. 316, 316 (2018) overruled Matter of A-R-C-G- while Bautista-Lopez’s appeal was pending. Recognizing this, Bautista-Lopez provided two additional proposed social groups to the BIA: “El Salvadoran women” and “El Salvadoran women in a domestic relationship who oppose male domination.” She asserted that, if the BIA found that the groups she originally proposed were not cognizable in light of Matter of A-B-, it should remand her case to the IJ to consider whether she was persecuted on account of her membership in either of the additional social groups.

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to leave,” because she was not “unable to leave” her relationship. 4 And the BIA

agreed with the IJ’s conclusion that Bautista-Lopez had not established that the

Salvadoran government was unable or unwilling to protect her because the IJ did

not clearly err in finding that Bautista-Lopez provided insufficient evidence to

“convincingly demonstrate” that the laws and customs in El Salvador would

prevent her from obtaining protection.

The BIA also affirmed the IJ’s rejection of Bautista-Lopez’s remaining

claims. The BIA concluded that, because Bautista-Lopez failed to establish her

eligibility for asylum, her withholding of removal claim failed as well. It also

determined that Bautista-Lopez was not entitled to CAT relief because the IJ did

not clearly err in finding that she failed to establish that she would more likely than

not be tortured by or with the acquiescence of a public official or person acting in

an official capacity in El Salvador. This petition for review followed.

II. Standard of Review

We review only the decision of the BIA, except to the extent that it adopted

the IJ’s decision or expressly agreed with the IJ’s reasoning. Gonzalez v. U.S.

4 The BIA listed the three social groups that Bautista-Lopez initially proposed and determined that those groups lacked particularity. In a footnote, the BIA further determined that two of the three social groups that Bautista-Lopez had originally proposed—“El Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” and “El Salvadoran women in domestic relationships who are unable to leave”—were impermissibly circular. The BIA did not address the two additional social groups that Bautista-Lopez had raised for the first time in her brief to the BIA. 6 Case: 19-12618 Date Filed: 05/11/2020 Page: 7 of 12

Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). “In this case, because the BIA

agreed with the IJ’s findings, and made additional observations, we review both

decisions.” Rodriguez v. U.S. Atty. Gen., 735 F.3d 1302, 1308 (11th Cir. 2013).

With respect to a petition for review of a BIA decision, we review

conclusions of law de novo and factual determinations under the substantial

evidence standard. Gonzalez, 820 F.3d at 403. Whether a particular social group

is cognizable under the INA is a legal issue reviewed de novo. Id. Questions

regarding whether the BIA gave reasoned consideration to an issue are also

reviewed de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016).

Under the substantial evidence standard, we review the evidence in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). The

agency’s decision will be affirmed “if it is ‘supported by reasonable, substantial,

and probative evidence on the record considered as a whole.’” Id. (quoting

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)). We cannot

“reweigh the evidence from scratch” and will reverse findings of fact “only when

the record compels a reversal.” Id. (quotation marks omitted).

I. Discussion

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To establish eligibility for asylum, the applicant bears the burden of proving

that she is a refugee under the INA. See 8 U.S.C. § 1158(b)(1)(B); Sepulveda, 401

F.3d at 1230. The INA defines a “refugee” as:

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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 . . . .

8 U.S.C. § 1101(a)(42)(A). To meet this burden, an applicant must provide

credible evidence establishing past persecution, or a well-founded fear of future

persecution, on account of a statutorily protected ground. Li Shan Chen v. U.S.

Att’y Gen., 672 F.3d 961, 964−65 (11th Cir. 2011). Under either route, an

applicant also must show that she was unable to avail herself of the protection of

her home country. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007).

This requirement stems from the statutory definition of “refugee,” which

encompasses only those who are “unable or unwilling” to avail themselves of the

government’s protection. 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R.

§ 208.13(b)(1), (b)(2)(i)(C). An applicant’s failure to report persecution by a

private actor to the local authorities is “generally fatal” to her claim, though it may

be excused if the she convincingly demonstrates that the government would have

been unable or unwilling to protect her. Lopez, 504 F.3d at 1345; Ayala v. U.S.

Att’y Gen., 605 F.3d 941, 950 (11th Cir. 2010). 8 Case: 19-12618 Date Filed: 05/11/2020 Page: 9 of 12

We need not address the majority of Bautista-Lopez’s claims of error

because we affirm the BIA’s determination that petitioner cannot demonstrate

eligibility for asylum based its finding that she failed to prove the Salvadoran

government is unable or unwilling to protect her. 5 Because she cannot meet this

requirement, her claim must fail regardless of her ability to meet other statutory

requirements. Ayala, 605 F.3d at 950 (“[A]n applicant who alleged persecution by

a private actor must prove that he ‘is unable to avail [him]self of the protection of

h[is] home country’ by presenting evidence that he reported the persecution to

local government authorities or that it would have been useless to do so.”) (second

and third alterations in original). Bautista-Lopez did not report the violence or

threats perpetrated by Rolando to the police. As we said in Lopez, a failure to

report is “generally fatal” to an asylum claim. Lopez, 504 F.3d at 1345. Nor is this

a situation where the police were the persecutors, such as in Ayala. 605 F.3d at

950. Instead, Bautista-Lopez suffered from the criminal actions of a private

individual. Therefore, she must have proven that “it would have been useless” to

report the domestic violence to government authorities. Ayala, 605 F.3d at 950.

5 Petitioner also asks that we remand this case to the BIA to address her request to consider new social groups added on appeal after Matter of A-B- came out. While normally it would be appropriate to remand for the BIA to determine whether a social group is cognizable under the INA in the first instance, Gonzales v. Thomas, 547 U.S. 183, 186–87 (2006), we decline to do so here because such an exercise would be futile, given our affirmance of the BIA’s other rulings in this case. 9 Case: 19-12618 Date Filed: 05/11/2020 Page: 10 of 12

Bautista-Lopez argues that she conclusively demonstrated that the police

were unable or unwilling to protect her based on three pieces of evidence: (1) the

2016 country report for El Salvador, (2) a 2013 declaration from a women’s rights

attorney in El Salvador, and (3) a 2014 letter from an American professor

specializing in international women’s rights. These sources indicate that domestic

violence is a pervasive problem in El Salvador, with less than effective

enforcement to combat the problem. However, these sources also chronicle efforts

taken by the El Salvadoran government to address these problems. Specifically,

there are laws in place that criminalize domestic violence; the government

sponsors public awareness campaigns regarding domestic violence; the

government provides programs for victims of domestic violence, including

shelters; and, as of 2016, the government has established new courts specifically

tasked with resolving complaints of violence against women in at least three major

cities. The record also demonstrates, in sources not relied on by the petitioner, that

the government has formed a task force charged with creating and executing a

national plan to address violence against women generally; the government

“obliges every state institution to tackle violence against women”; and, as early as

2011, the government had established police units that “specialize[] in helping

women victims of violence.”

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Our standard of review compels us to affirm the BIA on the basis of the

substantial evidence in the record that the Salvadoran government has undertaken

efforts to prevent domestic violence and protect victims of it. Even assuming a

reasonable interpretation of the sources discussed above might reach the opposite

conclusion, “[o]ur task is not to determine whether the inferences [Bautista-Lopez]

draws from [the evidence] are reasonable. . . . Our review is more limited.” Silva,

448 F.3d at 1237. As we have stated before,

[u]nder the substantial evidence standard, we cannot look at the evidence presented to the BIA to determine if interpretations of the evidence other than that made by the BIA are possible. Rather, we review the evidence that was presented to determine if the findings made by the BIA were unreasonable.

Adefemi, 386 F.3d at 1029. Even though the record indicates that domestic

violence is a problem in El Salvador and that the government struggles to control

it, we cannot say the record compels the opposite conclusion of the BIA regarding

the government’s willingness or ability to help Bautista-Lopez. See Matter of

A-B-, 27 I. & N. Dec. at 320 (“The mere fact that a country may have problems

effectively policing certain crimes . . . or that certain populations are more likely to

be victims of crime, cannot itself establish an asylum claim.”) (reversed on other

grounds). We thus affirm the BIA’s conclusion that Bautista-Lopez has not

demonstrated she is eligible for asylum.

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Because Bautista-Lopez fails to meet her burden of asylum, she cannot meet

the more stringent burden required for withholding of removal. See Sepulveda,

401 F.3d at 1232–33; 8 U.S.C. § 1231(b)(3)(A).

With respect to Bautista-Lopez’s CAT claim, substantial evidence supports

the agency’s conclusion that she failed to demonstrate that the Salvadoran

government would acquiesce in her torture. “Acquiescence of a public official

requires that the public official, prior to the activity constituting torture, have

awareness of such activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). We have affirmed the

BIA’s holding that a government does not “acquiesce” to torture in circumstances

where it “actively, albeit not entirely successfully, combats” the illegal activities.

Reyes-Sanchez, 369 F.3d 1239, 1243 (11th Cir. 2004). As discussed above, the

materials that Bautista-Lopez attached to her application indicate that the

Salvadoran government actively attempts to combat domestic violence.

Accordingly, we deny Bautista-Lopez’s claim.

PETITION DENIED.