NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2099
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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
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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
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(“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
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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-
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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
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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
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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
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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.
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