Selvin Martinez-Almendares v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: May 2, 2018
• Docket: 17-2099
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2099 _____________

SELVIN JOSUE MARTINEZ-ALMENDARES, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

____________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A208-542-211) Immigration Judge: Honorable Silvia A. Arellano

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 12, 2018

Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge ∗.

(Opinion Filed: May 2, 2018) ____________

OPINION † ____________

∗ The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation. † This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge.

Selvin Martinez-Almendares (“Martinez-Almendares”) petitions for review of his

order of removal entered by the Board of Immigration Appeals (“BIA”). The BIA

affirmed the decision of the Immigration Judge (“IJ”) denying Martinez-Almendares’

petition for asylum, withholding of removal, and relief under the Convention Against

Torture (the “CAT”). We will deny his petition for review.

I.

Because we write solely for the parties, we will only briefly summarize the

essential facts. Martinez-Almendares is a native and citizen of Honduras. He is a gay

man, although he has largely kept his sexual identity secret. Before he came to the

United States, he told only two friends in Honduras, both gay men, about his sexual

identity. He knew other gay men who lived openly and were not persecuted for their

sexual identities. The only instance he could recall of a gay man being mistreated

because of his sexual identity was when a private citizen punched an acquaintance named

Arturo after Arturo made an unwelcome advance at a bar. Martinez-Almendares

believed that others questioned his sexual identity due to his behavior and mannerisms.

He never told his family that he was gay because he thought that, if he did, his family

might not accept him and that his father might hit him.

Although Martinez-Almendares testified that he had seen television reports

showing gay men who were targeted for violent crimes by gangs, he was not aware of the

details of those incidents, nor was he personally aware of any such incidents. He testified

2 he believed the police could not protect gay men because they were unable to protect any

Honduran citizens from gang violence.

In August 2015, Martinez-Almendares was working as a clerk at a transportation

company when a gang member entered the building, attacked Martinez-Almendares, and

stole both his personal property and money from the cash registers. The gang member

told Martinez-Almendares that the gang member would kill him if he called the police.

Martinez-Almendares filed a police report after the robbery. Later, the gang attempted to

extort Martinez-Almendares and his employer. At no point during any of these

interactions did any gang member or police officer mention Martinez-Almendares’

sexuality.

On October 8, 2015, Martinez-Almendares entered the United States and was

taken into custody by Customs and Border Patrol agents. He appeared before an IJ in

Elizabeth, New Jersey, who sustained the Department of Homeland Security’s charge of

removability.

Martinez-Almendares applied for asylum, withholding of removal, and protection

under the CAT. The IJ considered testimony from Martinez-Almendares, documentary

evidence, and reports on Honduras’ treatment of gay people and the country’s struggles

with violence generally. The IJ held that Martinez-Almendares was not eligible for

asylum because, although his sexual identity placed him within a protected social group,

he had not established that he was likely to be persecuted on that basis. The IJ considered

the August 2015 incident to be “criminal violence motivated by greed,” rather than

persecution motivated by Martinez-Almendares’ sexual identity. Administrative Record

3 (“AR”) 37. The IJ noted that there was no reason to believe that the gang which carried

out the attack would become aware of Martinez-Almendares’ sexual identity, and thus no

reason to believe it would persecute him based on that identity. In the alternative, the IJ

held that Martinez-Almendares had failed to establish he could not avoid persecution by

relocating within Honduras, because he had only suffered gang violence in the city where

he worked, and had not suffered the same violence in his hometown. The IJ further held

that, because Martinez-Almendares had not established eligibility for asylum, he also

could not meet the stricter standards for withholding of removal, and that Martinez-

Almendares was ineligible for protection under the CAT.

Martinez-Almendares appealed to the BIA, which affirmed. It added to the IJ’s

analysis by noting that his mother was a close friend with a gay man who had not been

persecuted. Martinez-Almendares timely petitioned for review of the BIA’s decision.

II.

In his petition for review, Martinez-Almendares argues that the IJ and BIA erred

by determining (1) that he lacked a well-founded fear of future persecution, (2) that his

sexuality would not become known, and (3) that he had failed to show he could not

reasonably relocate within Honduras. We have jurisdiction to review final orders of

removal. 8 U.S.C. § 1252(a).

We exercise de novo review over the BIA’s legal determinations. Castillo v. Att’y

Gen., 729 F.3d 296, 301–02 (3d Cir. 2013); Valdiviezo-Galdamez v. Att’y Gen., 663

F.3d 582, 590 (3d Cir. 2011); Francois v. Gonzales, 448 F.3d 645, 648 (3d Cir. 2006).

The BIA's determinations regarding the likelihood of future persecution are reviewed for

4 substantial evidence. See Wang v. Ashcroft, 368 F.3d 347, 349–50 (3d Cir. 2004);

Abdille v. Ashcroft, 242 F.3d 477, 483–84 (3d Cir. 2001). Under this standard, “the

BIA's finding[s] must be upheld unless the evidence not only supports a contrary

conclusion, but compels it.” Abdille, 242 F.3d at 483–84.

The Attorney General may grant asylum, or withholding of removal, to an alien in

removal proceedings who establishes he is a “refugee” under the Immigration and

Nationality Act. 8 U.S.C. § 1158(a). An applicant for asylum bears the burden of

proving “that he or she is a refugee as defined by” 8 U.S.C. § 1101(a)(42)(A). 8 C.F.R. §

208.13. A person may qualify as a refugee if “he or she has suffered past persecution or

[if] he or she has a well-founded fear of future persecution.” 8 C.F.R. § 208.13(b).

Martinez-Almendares argues only that he has a well-founded fear of future persecution.

To demonstrate a well-founded fear of future persecution, an applicant must prove

(1) “a fear of persecution . . . on account of” protected characteristics, such as “race,

religion, nationality, membership in a particular social group, or political opinion”; (2) “a

reasonable possibility of suffering such persecution if he . . . were to return to that

country”; and (3) that he “is unable or unwilling to return to, or avail himself of the

protection of, that country because of such fear.” 8 C.F.R. § 208.13(b)(2)(i); see Shardar

v. Att’y Gen., 503 F.3d 308, 313 (3d Cir. 2007). Not all treatment that is “unfair, unjust,

or even unlawful or unconstitutional” will qualify as persecution, only “threats to life,

confinement, torture, and economic restrictions so severe that they constitute a threat to

life or freedom.” Camara v. Att’y Gen., 580 F.3d 196, 202 (3d Cir. 2009). An applicant

must have a subjective fear of future persecution and that fear must be objectively well-

5 founded. Valdiviezo-Galdamez v. Att’y Gen., 663 F3d 582, 590–91 (3d Cir. 2011). The

feared acts of persecution must be “committed by the government or forces the

government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d

587, 592 (3d Cir. 2003) (quotation omitted).

Martinez-Almendares is a member of a protected social group because he is a gay

man. An applicant must show that his protected characteristic “will be at least one

central reason for persecuting the applicant,” should he be removed. 8 U.S.C. §

1158(b)(1)(B)(i). He must either show “a reasonable possibility that he . . . would be

singled out individually for persecution” or that, in his home country, there exists “a

pattern or practice . . . of persecution of a group of persons similarly situated” in terms of

their protected characteristics. 8 C.F.R. § 1208.13 (b)(2)(iii). An applicant must also

show that he could not “avoid persecution by relocating to another part of the applicant’s

country . . . if under all the circumstances it would be reasonable to expect the applicant

to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).

Martinez-Almendares argues that the BIA erred by discounting the evidence of a

“pattern or practice of harm against LGBTI Hondurans by both the government and non-

government actors that the government cannot or will not control.” Martinez-

Almendares Br. 2. He argues that this evidence shows that gay men are systematically

persecuted throughout Honduras, and thus Martinez-Almendares would be subjected to

persecution upon removal that he could not avoid by relocating within Honduras. The IJ

and BIA both considered this evidence and both disagreed. Martinez-Almendares

submitted evidence showing that Honduras struggles with violence and corruption and

6 has a history of discrimination against LGBT individuals. His evidence included a

troubling statistic that 92% of crimes against LGBT individuals went unsolved due to

inadequate investigation, but it did not compare that statistic to the rate at which crimes

against the general population were solved or investigated. Other facts showed that

Honduras had recently added sexual identity as a protected class under anti-

discrimination laws, and that individuals have been convicted for crimes targeting LGBT

individuals. Martinez-Almendares testified that although he had seen news reports of

crimes committed against gay men by gangs, the gay men he knew faced no persecution

even when they lived openly. Thus, the BIA had substantial evidence to conclude

Martinez-Almendares had failed to establish that gay men were systematically persecuted

throughout Honduras.

Next, Martinez-Almendares argues that the BIA erred by holding his sexual

identity was unlikely to be revealed upon a return to Honduras. This, he argues, would

impermissibly force him to conceal his identity. See Fatin v. I.N.S., 12 F.3d 1233, 1242

(3d Cir. 1993) (“[W]e will assume for the sake of argument that the concept of

persecution is broad enough to include governmental measures that compel an individual

to engage in conduct that is not painful or harmful but is abhorrent to that individual’s

deepest beliefs.”). This argument mischaracterizes the BIA’s decision, which “did not

require [Martinez-Almendares] to conceal his identity.” Appendix (“App.”) 5. Rather,

the BIA concluded that Martinez-Almendares failed to demonstrate that gang members or

other persecutors were likely to learn his sexual identity. Without learning his sexual

identity, they could not persecute him on that basis. The evidence showed that he was

7 able to keep his sexual identity largely a secret in Honduras and that other gay men lived

openly without persecution. Moreover, Martinez-Almendares argued his persecution

would take the form of gang violence, and he presented no evidence that gang members

would learn of his sexual identity. We need not decide whether an asylum applicant can

be forced to hide his sexual identity to avoid persecution, because the BIA here did not

do so; it merely concluded that Martinez-Almendares had failed to demonstrate that he

was likely to be persecuted on the basis of his sexual identity when he had not shown that

his would-be persecutors would know of his sexual identity. It had a substantial factual

basis to make this determination.

Finally, Martinez-Almendares argues that the BIA erred by holding that he could

reasonably relocate within Honduras by returning to his hometown for two reasons.

First, he argues that the BIA failed to consider his fear of his male family members.

Martinez-Almendares testified that his father “might hit [him] very hard” if he learned

that Martinez-Almendares was gay, AR 357, and that he was worried his family would

not “accept the way I am” if they learned he was gay. AR 118. This feared mistreatment

by his family, while “unfair” or “unjust,” is not sufficiently severe that it would qualify as

persecution. Camara, 508 F.3d at 202. Even if he could establish that his father would

commit violent acts amounting to either a threat to his life or torture, Martinez-

Almendares does not argue that this domestic mistreatment would be committed by the

government or by forces the government was unable or unwilling to control. See

Abdulrahman, 330 F.3d at 592. In the alternative, Martinez-Almendares produced no

8 evidence showing why he could not relocate to his hometown — where the only gay man

he knew lived openly without persecution — but live separately from his father.

Second, Martinez-Almendares argues that the BIA failed to consider his evidence

showing that LGBT individuals faced discrimination throughout Honduras such that

relocation anywhere in Honduras would not alleviate his well-founded fear of

persecution. Martinez-Almendares himself testified he knew openly gay men, including

one who lived in his hometown, and that these men were not persecuted for their

sexuality except for a single instance of a fistfight with a private citizen in a bar.

Although Martinez-Almendares points to troubling evidence showing unjust conditions

throughout Honduras, in light of his conflicting testimony we cannot say that the BIA

lacked substantial evidence for its determination.

III.

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