Mirna Pena Rodas v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: March 4, 2019
• Docket: 18-1534
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-1534 _____________

MIRNA NAVED PENA RODAS, a/k/a Mirna Naved Pena-Rodas, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _______________________

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-628-519 Immigration Judge: The Honorable Elise Manuel _______________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 4, 2019

Before: SMITH, Chief Judge, AMBRO and RESTREPO, Circuit Judges

(Filed: March 4, 2019) _______________________

OPINION _______________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge.

Mirna Pena-Rodas petitions for review of a decision by the Board of

Immigration Appeals (BIA) dismissing her appeal from the decision by the

Immigration Judge (IJ) to deny her applications for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). For the

reasons that follow, we will deny the petition for review.

I.

Pena-Rodas is a native and citizen of Honduras. During her hearing before

the IJ, she was asked to describe the incident in Honduras that formed the basis of

her claims for relief. She testified that, on a Friday evening in February 2014

while she was walking to church, she was approached by two men on motorbikes.

She recognized one of them as a local gang member called “[P]antera,” who had in

the past made suggestive comments to her and had told others, “[o]ne day, she’s

going to be mine.” JA 89. When the men got off their bikes and approached her,

she realized that Pantera and his companion were going to attack her.

While his companion stood guard, Pantera grabbed Pena-Rodas and threw

her to the ground. He grabbed her purse, including her cellphone, and tossed it to

his companion. He then tried to forcibly remove her clothing, saying “finally you

are going to be mine.” JA 63. When she tried to scream for help, Pantera covered

her mouth.

2 Pena-Rodas believed that Pantera would rape her. She escaped before he

could do so by kneeing him in the groin and throwing sand in the other man’s eyes.

She fled to her church, and the priest walked her home. She never saw Pantera

again, but, beginning after the attack, her mother and grandmother received

repeated phone calls and voice mails from unknown numbers. Although no one

ever spoke, Pena-Rodas suspected the calls were from Pantera because he had

stolen her cellphone. The calls made Pena-Rodas feel threatened and afraid.

Traumatized after the attack, Pena-Rodas did not leave her house for a

month. Although she suffered pain from being held down, she did not seek

medical attention. She also did not report the incident to the police, believing that

“the police [are] connected to the [gang].” JA 66. She discussed the attack with

her priest instead. Seeking safety, she fled to the United States the following

month. She entered this country illegally in March 2014, when she was twenty-

one.

In her application for relief, Pena-Rodas attributed Pantera’s attack to her

political opinion, because she is opposed to gangs. She also attributed the attack to

her membership in a particular social group (PSG) comprised of “women who

have been actively targeted to be made into sex slaves for gang members, but have

refused to join because they opposed gangs.” AR 453 (Petitioner’s brief in support

of asylum application). Pena-Rodas also suspected that Pantera and his gang

3 targeted her because she was employed, attesting that “they think that I have

money and wanted to rob me.” AR 247 (declaration in support of asylum

application). During the hearing, her counsel specified that the PSG includes

women who have high school diplomas.

In resolving Pena-Rodas’s claims, the IJ found Pena-Rodas to be a credible

witness, accepting her account of her experiences and her description of her

subjective fears and concerns. The IJ also believed that Pena-Rodas holds an anti-

gang political opinion, but concluded that nothing in the record indicated that the

attack against her was motivated by that political opinion. The IJ expressed

hesitation about the cognizability of Pena-Rodas’s proposed PSG but, assuming it

to be cognizable, concluded that the evidence did not establish that she was

targeted because of her membership in that group.

Accordingly, the IJ concluded that, although Pena-Rodas has an objectively

reasonable fear of gang violence in Honduras, she did not establish past

persecution or a well-founded fear of persecution on account of a protected ground

and thus was not entitled to asylum or withholding of removal. The IJ further

concluded that Pena-Rodas did not establish past treatment amounting to torture, or

consent or acquiescence to torture, by a government official, and therefore denied

CAT protection.

4 Pena-Rodas appealed to the BIA. The BIA agreed with and relied upon the

IJ’s finding that Pena-Rodas failed to establish a nexus between any harm she

suffered or would suffer and a protected ground. Because the nexus determination

was dispositive, the BIA declined to consider her other arguments that were not

addressed to that issue. And, because Pena-Rodas did not present any arguments

concerning her CAT claim, the BIA deemed that issue to be waived. The BIA

therefore dismissed the appeal.

Pena-Rodas then timely filed a petition for review with this Court.

II.

We have jurisdiction to review the BIA’s final order of removal under 8

U.S.C. § 1252(a)(1). Although we review the BIA’s decision, we also consider the

IJ’s opinion “where the BIA has substantially relied on that opinion.” Camara v.

Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009). We review the agency’s conclusions

of law de novo, subject, where appropriate, to the principles of deference set forth

in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See

Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We review administrative

findings of fact for substantial evidence, and must uphold the BIA’s decision

unless the evidence would compel a reasonable adjudicator to reach a contrary

conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); 8 U.S.C.

§ 1252(b)(4)(B).

5 III.

Pena-Rodas claims she is eligible for asylum because she suffered past

persecution and has a well-founded fear of persecution on account of both her

political opinion and her membership in a PSG. 8 U.S.C. § 1101(a)(42)(A). To

prevail, she must establish that one of these protected grounds “was or will be at

least one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i).

A.

Pena-Rodas first contends that the BIA erred in finding that her anti-gang

political opinion did not motivate Pantera’s attack against her. In her brief, she

reasons that, because Pena-Rodas was not a gang member and attended church,

Pantera must have been aware of her anti-gang political opinion. Further, “the fact

that [Pena-Rodas] and her family despised the gangs likely enraged [Pantera] and

fueled his assault against her.” Petitioner’s Br. 9. Pena-Rodas takes issue with the

agency’s finding that Pantera’s motivation was personal and not political,

observing that “such a conclusion is ridiculous given that rape is not an acceptable

or recognized form of courtship in any society on the planet.” Id. at 10.

Without a doubt, Pena-Rodas correctly states that rape is not an acceptable

form of courtship. Yet the agency did not determine that Pantera’s violent attack

was acceptable, appropriate, or lawful. Rather, it found that Pantera attacked Pena-

Rodas for his own personal reasons. That Pantera was acting criminally does not,

6 without more, supply evidence that would compel a reasonable factfinder to

conclude that the true motivation for the attack was political in nature. See

Gonzales-Posadas v. Att’y Gen., 781 F.3d 677, 687 (3d Cir. 2015) (“Conflicts of a

personal nature and isolated criminal acts do not constitute persecution on account

of a protected characteristic.” (citations omitted)); see also, e.g., Marquez v. INS,

105 F.3d 374, 380 (7th Cir. 1997) (“A personal dispute, no matter how nasty,

cannot support an alien’s claim for asylum.”). Because Pena-Rodas does not

identify evidence compelling a contrary conclusion, we will not disturb the

agency’s finding that Pantera attacked Pena-Rodas for personal reasons.

B.

Next, Pena-Rodas argues that the IJ improperly “redefined” her proposed

PSG by describing it—consistently with her asylum application—as “women who

have been actively targeted to be made sex slaves or gang members but refuse

because they are opposed to gangs.” See JA 28 and AR 453. She argues that she

intended the PSG to be a narrower subset of that group, comprised of “young,

educated, and working women (between the ages of 15–28), who are targeted by

gangs for recruitment or sex trafficking.” Petitioner’s Br. 14.

This argument is unavailing. While a more narrowly defined PSG might

assist in establishing the cognizability of her social group, the BIA assumed that

Pena-Rodas is, indeed, a member of a cognizable social group. The BIA denied

7 her claim not on cognizability grounds, but for lack of nexus. Thus, even if we

were to accept Pena-Rodas’s more narrowly defined version of the PSG, there

must nevertheless be evidence in the record to compel a conclusion that there is a

nexus between her PSG membership and the attack against her.

Pena-Rodas fails to identify evidence of record to undermine the BIA’s

finding, supported by substantial evidence, that Pantera’s motivation was personal,

rather than on the basis of a protected ground. We will therefore deny Pena-

Rodas’s asylum claim.1

IV.

To prevail on her claim for withholding of removal under 8 U.S.C.

§ 1231(b)(3), Pena-Rodas must “establish a ‘clear probability of persecution,’ i.e.,

that it is more likely than not, that [she] would suffer persecution upon returning

home.” Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011)

(citing INS v. Stevic, 467 U.S. 407, 429–30 (1984)). “Since [that] standard is more

demanding than that governing eligibility for asylum, an alien who fails to qualify

for asylum is necessarily ineligible for withholding of removal.” Id. Therefore,

1 Pena-Rodas offers several other arguments directed to the IJ’s determinations. For instance, she contends that the IJ erroneously concluded that the attack did not rise to the level of persecution. Yet the BIA rested its denial of relief on the absence of a nexus between the attack and any protected ground, and we agree with that finding. We therefore decline to consider arguments that are not addressed to the nexus issue.

8 because Pena-Rodas failed to establish eligibility for asylum, she also is unable to

succeed on her withholding of removal claim.

Finally, Pena-Rodas refers very briefly to her CAT claim, which the BIA

deemed waived. She acknowledges that, when she was before the BIA, she did not

“explicitly spell[] out that the attempted rape, and the prospect of future rape,

would come under the umbrella of torture.” Petitioner’s Br. 10. Nonetheless, she

now argues before this Court both that the rape attempt was torture and that the

BIA “conceded the Honduran government’s acquiescence of rape generally.” Id.

at 10–11.

Even if we are able to consider this apparently unexhausted claim, see Lin v.

Att’y Gen., 543 F.3d 114, 119–20 (3d Cir. 2008), Pena-Rodas fails to adequately

develop it in this Court. She offers nothing more than three conclusory sentences

in her brief. She does not attempt to explain why this Court should set aside the

BIA’s waiver determination, and she offers no legal citation or record support for

her position that she should prevail on the merits of her CAT claim, including her

view that the BIA “conceded the Honduran government’s acquiescence of rape.”

Indeed, after reviewing the BIA’s opinion, we discern no such concession.

Because Pena-Rodas raised the CAT claim only in passing and failed to

meaningfully develop any arguments in support of that claim, we consider the

9 issue waived. See Khan v. Att’y Gen., 691 F.3d 488, 495 n. 4 (3d Cir. 2012);

Laborers’ Int’l Union of N. Am., AFL–CIO v. Foster Wheeler Corp., 26 F.3d 375,

398 (3d Cir. 1994).

VI.

For all of the foregoing reasons, we will deny the petition for review.