UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1261
LESLY ESPERANZA BANEGAS-RIVERA; B.S.R.,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 29, 2016 Decided: November 2, 2016
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition denied by unpublished per curiam opinion.
Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring,
Maryland, for Petitioners. Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Julie Iversen, Senior Litigation
Counsel, Robert Michael Stalzer, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lesly Esperanza Banegas-Rivera and her daughter, B.S.R.,
natives and citizens of Honduras, petition for review of an
order of the Board of Immigration Appeals (Board) dismissing
their appeal from the immigration judge’s (IJ) decision denying
Banegas-Rivera’s applications for asylum, withholding of
removal, and protection under the Convention Against Torture
(CAT). For the reasons set forth below, we dismiss the petition
for review.
The Immigration and Naturalization Act (INA) vests in the
Attorney General the discretionary power to grant asylum to
aliens who qualify as refugees. Djadjou v. Holder, 662 F.3d
265, 272 (4th Cir. 2011). A refugee is someone “who is unable
or unwilling to return to” her native 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) (2012).
An asylum applicant has the burden of proving that she satisfies
the definition of a refugee to qualify for relief. Djadjou, 662
F.3d at 272. She may satisfy this burden by showing that she
was subjected to past persecution or that she has a well-founded
fear of persecution on account of a protected ground. See 8
C.F.R. § 208.13(b)(1) (2016). If the applicant establishes past
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persecution, she has the benefit of a rebuttable presumption of
a well-founded fear of persecution. Djadjou, 662 F.3d at 272.
If the applicant is unable to establish that she was the
victim of past persecution, she must establish a well-founded
fear of future persecution. A well-founded fear of persecution
has a subjective and objective component. Marynenka v. Holder,
592 F.3d 594, 600 (4th Cir. 2010). The subjective component
requires that the applicant show genuine fear of persecution.
The objective component requires that the applicant show with
specific and concrete facts that a reasonable person in like
circumstances would fear persecution. Id.
An applicant faces a heightened burden of proof to qualify
for withholding of removal to a particular country under the
INA. Djadjou, 662 F.3d at 272. She must show a clear
probability of persecution on account of a protected ground.
Id. If she meets this heightened burden, withholding of removal
is mandatory. However, if the applicant cannot demonstrate
asylum eligibility, her application for withholding of removal
will necessarily fail as well. Id.
Additionally, because Banegas-Rivera is claiming that she
was persecuted and fears future persecution at the hands of a
private actor, her former partner, and not the Honduran
government, she must establish that the government cannot or
will not control the offender. See Mulyani v. Holder, 771 F.3d
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190, 198 (4th Cir. 2014) (noting that an applicant alleging past
persecution must “show that the harm was inflicted by the
government or by others whom the government is unable or
unwilling to control”); M.A. v. INS, 858 F.2d 210, 218 (4th Cir.
1988) (holding asylum can be established by showing that the
government is “unwilling or unable to control the offending
group”).
Because the Board “issued its own opinion without adopting
the IJ’s opinion . . . we review that opinion and not the
opinion of the IJ.” Martinez v. Holder, 740 F.3d 902, 908 (4th
Cir. 2014). We will uphold the Board’s decision unless it is
manifestly contrary to the law and an abuse of discretion.
Djadjou, 662 F.3d at 273. The standard of review of the
agency’s findings is narrow and deferential. Factual findings
are affirmed if supported by substantial evidence. Id.
Substantial evidence exists to support a finding unless the
evidence was such that any reasonable adjudicator would have
been compelled to conclude to the contrary. Id. Whether the
government is unable or unwilling to control the private actor
is a factual finding. Hernandez-Avalos v. Lynch, 784 F.3d 944,
951 (4th Cir. 2015).
After reviewing the record, we conclude that substantial
evidence supports the finding that Banegas-Rivera failed to show
that the Honduran government was unable or unwilling to control
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her abuser and we are not compelled to reach a different result.
Banegas-Rivera’s claim that she established past persecution on
account of a protected ground is not relevant because the Board
decided her appeal on the issue that she failed to show that the
Honduran government was unable or unwilling to control the
abuser. Banegas-Rivera’s challenge to the denial of protection
under the CAT is not reviewable because she did not raise this
issue on appeal to the Board. Her failure to exhaust this issue
deprives us of jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1) (2012) (“A court may review a final order of
removal only if . . . the alien has exhausted all administrative
remedies available to the alien as of right.”); Kporlor v.
Holder, 597 F.3d 222, 226 (4th Cir. 2010) (“It is well
established that an alien must raise each argument to the
[Board] before we have jurisdiction to consider it.” (internal
quotations and citation omitted)).
Accordingly, we deny the petition for review. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
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