Case: 18-60198 Document: 00514830095 Page: 1 Date Filed: 02/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60198 February 11, 2019
Summary Calendar
Lyle W. Cayce
Clerk
ROXI ARACELY AREVALO-VELASQUEZ; ALMA DANIELA RIVERA-
AREVALO; ROXI GARMELI RIVERA-AREVALO,
Petitioners
v.
MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 753 722
BIA No. A208 753 723
BIA No. A208 753 724
Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
Roxi Aracely Arevalo-Velasquez, on behalf of herself and her two minor
daughters, seeks review of the dismissal by the Board of Immigration Appeals
(BIA) of their appeal from the denial of their applications for asylum,
withholding of removal and protection under the Convention Against Torture
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 18-60198
(CAT). (By failing to brief any issues related to her claims for withholding of
removal or CAT relief, Arevalo has waived or abandoned them. Thuri v.
Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).)
Arevalo asserts she has established entitlement to relief from removal
based on her partner’s acts of domestic violence in her native country of
Honduras. In that regard, the BIA’s findings of fact, including whether an
alien is eligible for asylum, are reviewed for substantial evidence. Zhang v.
Gonzales, 432 F.3d 339, 343–44 (5th Cir. 2005). “Under substantial evidence
review, this court may not reverse the BIA’s factual findings unless the
evidence compels it.” Wang v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009)
(citations omitted).
To prevail on a claim of past or future persecution, an alien must
establish, inter alia, that she suffered, or will suffer, persecution at the hands
of the “government or forces that a government is unable or unwilling to
control”. Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citation
omitted); Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992).
Arevalo asserts the BIA erred as a matter of law in affirming the IJ’s
determination that she failed to establish eligibility for asylum by not
demonstrating Honduran government officials were unwilling or unable to
protect her from past or future harm. She contends an applicant is not
required to report her abuse to establish the government is unable or unwilling
to control her abuser, where available country conditions show few women
make such reports “because the judicial procedure is skewed against them”
citing In re S-A-, 22 I. & N. Dec. 1328, 1332–33 (BIA 2000).
Arevalo testified: she went to a town two hours away from where she
lived and the abuse occurred; told a police sergeant about the abuse; was told
to make a formal complaint and/or seek a protective order; and did neither
because she was afraid.
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No. 18-60198
The BIA did not require Arevalo to make a formal complaint or seek a
protective order as an element of her asylum claim. As provided in its decision,
her failure to do so was merely a factor it considered among the applicable facts
in determining whether she had established persecution at the hands of
“government officials . . . unwilling or unable to protect her” in the past or in
the future. See Tesfamichael, 469 F.3d at 113 (citation omitted); see also
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017) (“Whether
a victim has reported or attempted to report violence or abuse to the authorities
is a factor that may be considered, as is credible testimony or documentary
evidence explaining why a victim did not report.”).
Along that line, in In re S-A-, 22 I. & N. Dec. at 1332–33, the BIA did not
establish a rule that an applicant is required to report her abuse to establish
the government is unable or unwilling to control her abuser. Unlike the factual
circumstances in In re S-A-, there is no evidence in the record to show Arevalo
would have been “compelled to return to her domestic situation and her
circumstances may well have worsened”. Id. at 1335 (citations omitted).
Arevalo’s subjective belief that it would have been futile to report the
abuse to authorities, based on her testimony that the police can be bribed and
because her partner had connections in the government, is not sufficient to
compel a conclusion that the Honduran government was unable or unwilling
to protect her from her former domestic partner. See Tesfamichael, 469 F.3d
at 113; Adebisi, 952 F.2d at 913–14.
DENIED.
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