Rosa Maria Juan-Francisco v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 5, 2019
• Docket: 19-11854
• Status: Unpublished

Opinion

Case: 19-11854 Date Filed: 12/05/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11854 Non-Argument Calendar ________________________

Agency No. A202-070-129

ROSA MARIA JUAN-FRANCISCO, YENI L. DIEGO JUAN,

Petitioner - Appellants,

versus

U.S. ATTORNEY GENERAL,

Respondent - Appellee.

________________________

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

(December 5, 2019)

Before WILLIAM PRYOR, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 19-11854 Date Filed: 12/05/2019 Page: 2 of 10

Rosa Maria Juan-Francisco and her daughter, Yeni Diego-Juan, as a

derivative beneficiary, seek review of a final order by the Board of Immigration

Appeals. The BIA affirmed the Immigration Judge’s denial of Ms. Juan-Francisco’s

claims for her application for asylum and withholding of removal. Ms. Juan-

Francisco argues the BIA erred in concluding (1) that she did not suffer harm rising

to the level of past persecution; (2) that she failed to establish she was persecuted

because of her membership in a particular social group; and (3) that she failed to

meet her burden to show she could not reasonably relocate within her home country

of Guatemala. Because we agree with the BIA’s analysis, we affirm.

I

Ms. Juan-Francisco and her daughter are natives and citizens of Guatemala.

In 2015, they entered the United States without inspection, and in 2016 they became

subject to removal proceedings by the Department of Homeland Security. At a

master calendar hearing on June 8, 2016, the IJ found each of them was removable

as charged. Ms. Juan-Francisco timely filed an application for asylum and

withholding of removal based on her race, political opinion, or membership in a

particular social group, and for protection under the Convention Against Torture.

Her attorney identified her particular social group as indigenous Guatemalan women

who are threatened into forced relationships. In support of her application, Ms. Juan-

Francisco submitted a psychological report and country condition documents.

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At a 2017 hearing regarding her claims, Ms. Juan-Francisco testified that in

May of 2014, a man in Guatemala harassed her verbally and told her she had to be

his wife. She did not recognize the man and was unable to learn his identity. She

testified that when she encountered the same man in July of 2014, he held her hand

and again told her she had to be his wife. In March of 2015, the man threatened to

kill Ms. Juan-Francisco if she did not agree to be his wife. He somehow obtained

Ms. Juan-Francisco’s telephone number and began to call her as many as three times

a day. She testified that she fears the man will kill her if she returns to Guatemala.

The IJ concluded that Ms. Juan-Francisco did not establish her eligibility for

asylum. The IJ found that Ms. Juan-Francisco was harassed and threatened by the

unidentified man, and believed her to be afraid of returning to Guatemala because

of the encounters, but the incidents did not rise to the level of persecution. The IJ

also found that Ms. Juan-Francisco had not established that the man targeted her

because of her race or political opinion, or that she had identified a cognizable

particular social group of which she was a member. Finally, the IJ ruled that Ms.

Juan-Francisco had not established that she was unable to reasonably relocate to

avoid further problems with the man.

The BIA affirmed the IJ’s decision, agreeing that the harm suffered by Ms.

Juan-Francisco did not rise to the level of past persecution and that she had not

established that she had or would be harmed because of a protected ground. The

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BIA explained that, although the unidentified man was not required to expressly

state the reason for his threats, there was no evidence presented regarding his alleged

motives and they could not be inferred from country reports regarding the state of

affairs in Guatemala. The BIA also agreed with the IJ that Ms. Juan-Francisco had

not established that she could not reasonably relocate within Guatemala.

II

We review the decision of the BIA and the decision of the IJ to the extent the

BIA expressly adopted or explicitly agreed with the it. See Ayala v. U.S. Att’y Gen.,

605 F.3d 941, 948 (11th Cir. 2010) (citing Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1350 (11th Cir. 2009)). We review legal determinations de novo and

administrative findings of fact for substantial evidence. See id. (citation omitted).

The substantial evidence test is highly deferential and requires us to affirm an agency

decision if it is “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Id. (quoting Silva v. U.S. Att’y Gen., 448 F.3d 1229,

1236 (11th Cir. 2006)). “[T]he mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings,” which

should occur “only when the record compels a reversal.” Adefemi v. Ashcroft, 386

F.3d 1022, 1027 (11th Cir. 2004).

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III

The INA authorizes the Attorney General to grant asylum to any alien

determined to be a “refugee” as defined by the statute. See 8 U.S.C § 1158(b)(1)(A).

A “refugee” is “one who is unable or unwilling to return to his or her home 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.”

Id. § 1101(a)(42)(A). To make out an asylum claim, an applicant must establish

either past persecution or a well-founded fear of future persecution based on one of

these grounds. See Sama v. U.S. Att’y Gen., 887 F.3d 1225, 1231 (11th Cir. 2018).

In either case, the applicant must show the persecution is by the government or by

non-government groups that the government cannot control. See Ayala, 605 F.3d at

948 (citing Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006)). An alien

who has not established past persecution has the burden of showing that it would not

be reasonable to relocate to another part of the home country to avoid persecution,

unless persecution is by the government or is government sponsored. See Arboleda

v. U.S. Att’y Gen., 434 F.3d 1220, 1223 (11th Cir. 2006) (citing 8 C.F.R.

§ 208.16(b)(3)(i)).

We address only Ms. Juan-Francisco’s claims regarding (a) the nexus between

her alleged persecution and protected grounds and (b) her opportunities for

relocation within Guatemala, finding them to be dispositive.

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A

The INA “makes motive critical.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483

(1992). Asylum applicants must establish a nexus between one of the protected

grounds and the past persecution or well-founded fear of future persecution in order

to lay out a claim. See Sama, 887 F.3d at 1231. Because the nexus element is

essential to both past persecution and a well-founded fear of future persecution

claims, we address them both together.

Ms. Juan-Francisco’s application must be denied because she has failed to

show her alleged persecutor was or will be motivated to harm her on account of her

race, political opinion, or membership in a particular cognizable social group.

According to Ms. Juan-Francisco’s testimony at the hearing, the man’s comments

appear limited to saying that he wanted her to be his wife and threatening to kill her

if she did not agree to become his wife. Critically, there is no indication that he

made any references to the protected grounds listed in her application, and Ms. Juan-

Francisco stated she did not know, and the man did not say, why he chose to talk to

and focus on her. She also did not know whether he talked to any other women in a

similar way and testified that she had never belonged to any political group. This

testimony does not say or suggest anything about the man’s motives. As a result, it

does not compel a reasonable factfinder to conclude that the requisite persecution or

fear of persecution because of a protected ground existed.

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Ms. Juan-Francisco’s only apparent evidence that she was persecuted because

of her race, political opinion, or membership in a particular social group comes in

the form of country condition reports. See Pet’r’s Br. 4. Ms. Juan-Francisco asserts

these materials show that the Maya indigenous group to which she belongs is unique

and operates outside of the Guatemalan government and law enforcement, and that

women in that community are particularly vulnerable to mistreatment. See id. at 5.

The materials speak of the high levels of violence against women and of violent

conditions in Guatemala generally. They also cover studies related to the violent

and unfair treatment of indigenous women and girls around the world.

Ms. Juan-Francisco was not required to point to explicit statements or

otherwise provide direct proof about the man’s motives in order to demonstrate that

she was or will be targeted because of a protected ground. See I.N.S. v. Elias-

Zacarias, 502 U.S. at 483. But on this record the country reports and articles are not

enough.

General lawlessness or discrimination within a particular region or

community as described in a country report does not compel a finding that that an

applicant was or will be targeted on the basis of a protected ground. See Mazariegos

v. U.S. Att’y Gen., 241 F.3d 1320, 1328 (11th Cir. 2001) (noting that, although a

report identified acts of violence and terrorism in Guatemala’s civil war, eligibility

for asylum does not extend “to anyone who fears the general danger that inevitably

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accompanies political ferment and factional strife”) (citation and internal quotation

marks omitted). See also Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (finding

that “[m]ere generalized lawlessness and violence between diverse populations . . .

generally is not sufficient” to grant asylum) (citation omitted; alterations added).

Country reports “cannot substitute for an analysis of the unique facts of each

applicant’s case.” Imelda v. U.S. Att’y Gen., 611 F.3d 724, 729 (11th Cir. 2010)

(citation omitted) (discussing use of country reports in the context of determining

changed country conditions). And here, Ms. Juan-Francisco has not demonstrated

that she was or will be singled out for persecution on account of a protected ground.

See Ruiz, 440 F.3d at 1259 (concluding that evidence in a country report did not

compel reversal of a petition’s denial because the petitioners did not demonstrate

they would be singled out for persecution); Sepulveda v. U.S. Att'y Gen., 401 F.3d

1226, 1231–32 & 1232 n.7 (11th Cir. 2005) (determining that an applicant’s failure

to show that she will be singled out for persecution was fatal to asylum claim where

the applicant relied on country reports of generalized violence). Considered together

with Ms. Juan-Francisco’s testimony that she did not know why the man targeted

her, the country condition evidence is not so compelling that a reasonable factfinder

would have to conclude the requisite past persecution or fear of persecution on

account of a protected ground existed.

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B

Even if Ms. Juan-Francisco were able to successfully establish her well-

founded fear of future persecution, an applicant who has not established past

persecution and seeks asylum on account of future persecution bears the burden of

showing that it would not be reasonable for her to relocate, unless the persecution is

by the government or is government sponsored. See Arboleda, 434 F.3d at 1223

(citing 8 C.F.R. § 1208.13(b)(3)(i)). The applicable regulations identify several

considerations that are relevant to the reasonableness determination, including the

possibility of serious harm in the place of suggested relocation; ongoing civil strife

within the country; and social and cultural constraints, such as gender and social and

familial ties. See id.

Ms. Juan-Francisco testified that she could not live anywhere else in

Guatemala and had to stay in her village. She also stated that neither she nor her

husband had any relatives or contacts outside of her town in Guatemala. Her brief

asserts that her village was in a portion of Guatemala that is “essentially a separate

state,” making relocation impossible. Pet’r’s Br. 6.

Ms. Juan-Francisco’s lack of contacts outside of her village provides some

support for the contention that relocation would not be reasonable. But reversing a

factual finding by the BIA requires not only that the evidence supports a contrary

conclusion, but that it compels one. See Farquharson v. U.S. Att’y Gen., 246 F.3d

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1317, 1320 (11th Cir. 2001) (citation omitted). Ms. Juan-Francisco provides no

other evidence regarding the difficulty or unreasonableness of relocation.

Additionally, the fact that she alleges a fear of persecution by a single private

person—not a government group or non-governmental organization with a presence

in other parts of Guatemala—arguably cuts against the notion that relocation would

be unreasonable. Cf. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236–38

(11th Cir. 2007) (remanding to the IJ for further review on relocation question where,

among other things, the IJ did not appear to consider country reports regarding the

guerrilla group FARC’s violent activities and extensive presence throughout

Colombia). Given these considerations, Ms. Juan-Francisco’s testimony is

insufficient to compel a finding that it was unreasonable for her to pursue relocation

within Guatemala before seeking resettlement in the United States.

Because we find that there is substantial evidence regarding Ms. Juan-

Francisco’s inability to connect her alleged persecution to a protected ground and to

demonstrate relocation within Guatemala is unreasonable, we do not address her

argument that the man’s treatment amounted to persecution.

IV

We DENY Ms. Juan-Francisco’s petition for review.