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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13847
Non-Argument Calendar
________________________
Agency No. A029-140-203
BYRON RODOLFO RECINOS-CORONADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 19, 2019)
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Byron Rodolfo Recinos-Coronado seeks review of the Board of Immigration
Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ) denial of his
application for asylum and withholding of removal. Recinos-Coronado argues that
he is eligible for asylum because he suffered past persecution and has a well-
founded fear of future persecution due to his membership in a particular social
group—here, the lesbian, gay, bisexual, and transgender (LGBT) community. He
also argues that he established his eligibility for withholding of removal because he
demonstrated that his life or freedom would be threatened due to his membership
in the LGBT community. Because the BIA and IJ’s conclusions were supported
by substantial evidence, Recinos-Coronado’s petition is denied.
I. Factual and Procedural Background
Recinos-Coronado, a native and citizen of Guatemala, entered the United
States without inspection for the first time in 1986. He was first removed to
Guatemala in May 2013, but he returned to the United States later that year and
was removed another two times. In 2014, the Department of Homeland Security
charged Recinos-Coronado under the Immigration and Nationality Act (INA) as an
alien present in the United States without admission and as an alien who had
previously been ordered removed. INA §§ 212(a)(6)(A)(i), (a)(9)(C)(i)(II)
(codified at 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(9)(C)(i)(II)). Recinos-Coronado,
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proceeding pro se, admitted the allegations in his notice to appear and the IJ found
him removable.
Recinos-Coronado then filed an application for asylum and withholding of
removal based on membership in a particular social group, and for Convention
Against Torture (CAT) protection. To support his application, Recinos-Coronado
included a declaration, an affidavit from an expert in Latin American Studies,
numerous human rights reports and country reports on the treatment of LGBT
individuals in Guatemala, news reports of attacks on LGBT individuals, police and
medical reports from a July 2013 beating he endured in Guatemala, and letters of
support from friends living in the United States.
In his declaration, Recinos-Coronado testified to the following. He knew he
was gay “from a very young age,” and he had to hide his sexuality “in fear of being
rejected, beaten, or killed.” He experienced “acts of violence and hatred” from his
classmates as a child and by random individuals on the streets. In particular, when
he was in primary school, he was “teased, ridiculed, and often told [that he]
seemed like a girl.” When he was nine years old, he was in a fistfight with two
boys who called him “fucking faggot, fag, and little girl” in Spanish. That year, his
uncle came to visit and he “would often grab [his] butt and try to touch [him]
inappropriately,” until one day his uncle took him into the countryside alone and
forced him to perform oral sex until he threw up. He did not tell the police or his
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family “because [his uncle] threatened to hurt [him] if [he] did.” When he was
eleven years old, he visited his father, a rancher, in Belize, who told him that he
“looked like a little gay boy on a horse,” and reminded him that he was a boy, not a
girl. His father told him that “if he ever had a gay son, he would prefer to have
him dead than in the family.” At fourteen years old, he left school because he was
“embarrassed and knew that [he had] to leave.”
In his application, Recinos-Coronado also described an attack that he
experienced in July 2013 in Guatemala. He stated that he was beaten by three
individuals for being gay because “gays were not welcome and [he] was a menace
to society, plus a sinner.” He stated that the individuals who beat him threatened to
kill him if he did not leave, he feared being tortured and killed should he return,
and there existed general hatred for the LGBT community in Guatemala.
In November 2015, the IJ denied Recinos-Coronado’s application for
asylum, withholding of removal, and CAT protection. The IJ determined that
Recinos-Coronado failed to establish that he suffered past persecution because (1)
the sexual assault Recinos-Coronado suffered at the hands of his uncle was not
motivated by Recinos-Coronado’s membership in the LGBT community; (2) the
verbal abuse Recinos-Coronado endured as a child was not motivated by his
membership in the LGBT community; (3) the harm suffered as a result of the 2013
beating did not rise to the level of persecution; and (4) Recinos-Coronado failed to
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establish that the Guatemalan government was unwilling or unable to control the
men who attacked him, given the ongoing investigation. The IJ likewise
determined that Recinos-Coronado failed to show a well-founded fear of future
persecution because (1) there was no evidence that the three 2013 attackers were
trying to find him; (2) Recinos-Coronado remained unharmed in Guatemala for
four months after the attack; and (3) Recinos-Coronado failed to establish that the
Guatemalan government was unwilling or unable to control the men who attacked
him, given the ongoing investigation. Finally, the IJ determined that Recinos-
Coronado was not eligible for CAT protection.
On appeal, the BIA agreed with the IJ that Recinos-Coronado failed to
establish past persecution or a well-founded fear of future persecution. In relevant
part, the BIA found that Recinos-Coronado’s failure to report the sexual abuse to
other family members or the authorities was “fatal” to his asylum claim. The BIA
therefore did not consider the sexual abuse when it conducted the past persecution
analysis.1
On appeal, we granted in part and denied in part the petition for review.
Recinos-Coronado v. U.S. Att’y Gen., 698 F. App’x 578 (11th Cir. 2017) (per
1
The BIA also determined that it was clear error for the IJ to conclude that the name-calling
Recinos-Coronado endured as a child was not on account of a protected ground. But because
this mistreatment did not rise to the level of persecution—even when considered cumulatively
with the other evidence—the BIA found the error to be harmless.
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curiam). We granted the petition with regards to Recinos-Coronado’s application
for asylum and withholding of removal and denied the petition with regards to his
application for CAT protection. See id. We concluded, as a matter of law, that the
BIA’s decision to exclude from the past persecution analysis the sexual abuse
Recinos-Coronado suffered—a decision that was based on the fact that Recinos-
Coronado failed to report the abuse—was error. Id. at 579–80.
On remand, the BIA again denied Recinos-Coronado’s application. The
BIA agreed with the IJ’s conclusion that the harm Recinos-Coronado suffered at
the hands of his uncle did not constitute persecution on account of a statutorily
enumerated ground because Recinos-Coronado failed to establish that his
homosexuality was a motivating factor leading to the abuse. Recinos-Coronado
filed the instant appeal.
II. Standard of Review
We review the BIA’s decision as the final judgment. Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). But where the BIA expressly
adopted the IJ’s decision or agreed with the IJ’s reasoning, we review the decisions
of both the BIA and the IJ to the extent of the agreement. Id. We review the
BIA’s factual determinations under the highly deferential substantial-evidence test
and “must affirm the BIA’s decision if it is supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Najjar v. Ashcroft,
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257 F.3d 1262, 1283–84 (11th Cir. 2001) (quotation omitted). “We view the
record evidence in the light most favorable to the [BIA’s] decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). We will reverse a finding of fact by the
BIA “only when the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Id. (citation omitted).
III. Discussion
To prove eligibility for asylum, an applicant must establish (1) past
persecution on account of a statutorily protected ground or a “well-founded fear”
that the applicant will be persecuted on account of a protected ground; and (2) that
the applicant’s home country would be unable or unwilling to protect him. INA
§ l01(a)(42)(A) (codified at 8 U.S.C. § 1101(a)(42)(A)); Diallo v. U.S. Att’y Gen.,
596 F.3d 1329, 1332 (11th Cir. 2010) (per curiam); Lopez v. U.S. Att’y Gen., 504
F.3d 1341, 1345 (11th Cir. 2007); 8 C.F.R. § 1208.13(a), (b). To demonstrate
eligibility for asylum based on past persecution, the applicant must present
substantial evidence that a past incident or incidents (1) rose to the level of
persecution, and (2) were on account of one of the statutorily protected grounds.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948–49 (11th Cir. 2010).
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Persecution is an “extreme concept” that requires more than isolated
incidents of verbal harassment or intimidation. See, e.g., Kazemzadeh, 577 F.3d at
1353; Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1171–74 (11th Cir. 2008)
(holding that the record did not compel a finding that the petitioner suffered past
persecution where the petitioner was detained for thirty-six hours in a small cell
shared by twelve people and was beaten twice, once involving a belt and resulting
in scratches and bruises); Delgado v. U.S. Att’y Gen., 487 F.3d 855, 859–61 (11th
Cir. 2007) (per curiam) (concluding that the record compelled reversal of the
BIA’s determination that the petitioner did not suffer past persecution based on the
cumulative effects of (1) an attack where two men made death threats against the
petitioner while pulling the trigger to an unloaded gun, making the petitioner
believe the men were going to kill him; (2) an attack that included a severe beating
that left the petitioner “almost unconscious”; (3) continued phone threats; and (4)
two occasions where the petitioner’s car was vandalized). In determining whether
the petitioner has suffered persecution, we evaluate the cumulative harm suffered
by the petitioner because “even if each fact considered alone would not compel a
finding of persecution, the facts taken as a whole may do so.” Shi v. U.S. Att’y
Gen., 707 F.3d 1231, 1235 (11th Cir. 2013).
Even where an applicant fails to show past persecution, a well-founded fear
of future persecution may be established by showing a reasonable possibility of
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being singled out for persecution that cannot be avoided by relocating within the
subject country. 8 C.F.R. §§ 208.13(b)(1)–(3)(i); Ruiz v. U.S. Att’y Gen., 440 F.3d
1247, 1258 (11th Cir. 2006) (per curiam) (“The applicant must present ‘specific,
detailed facts showing a good reason to fear that he will be singled out for
persecution on account of [a statutorily protected ground].’” (quotation omitted));
Kazemzadeh, 577 F.3d at 1352. The applicant does not need to show that he will
be singled out for persecution, however, if he establishes that his home country has
a “pattern or practice . . . of persecution of a group of persons similarly situated to
the applicant” and a reasonable fear of persecution on account of a protected
ground based on his inclusion in that group. 8 C.F.R. § 208.13(b)(2)(iii).
The applicant must demonstrate that one of the enumerated grounds “was or
will be at least one central reason for persecuting” him. INA § 208(b)(1)(B)(i)
(codified at 8 U.S.C. § 1158(b)(1)(B)(i)). We have recognized homosexuality as a
particular social group. Ayala, 605 F.3d at 949. Where the feared harm would be
committed by private actors, the applicant also must show that the harm he fears
would be committed by forces that the government is unable or unwilling to
control. Lopez, 504 F.3d at 1345. A petitioner can meet this standard by showing
that he is “unable to avail himself of the protection of his home country.” Ayala,
605 F.3d at 950 (alterations and quotation omitted).
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An applicant is entitled to withholding of removal when his life or freedom
would be threatened in the country of removal because of his membership in a
particular social group. INA § 241(b)(3)(A) (codified at 8 U.S.C.
§ 1231(b)(3)(A)). To qualify for withholding of removal, an applicant must show
a clear probability of persecution, meaning that he more likely than not would be
persecuted upon returning to the country because of a protected characteristic. D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004). An applicant can
qualify even without past persecution “if he can demonstrate a future threat to his
life or freedom on a protected ground in his country.” Sanchez v. U.S. Att’y Gen.,
392 F.3d 434, 437 (11th Cir. 2004) (per curiam) (quotation omitted). When an
applicant fails to “establish a claim of asylum on the merits, he necessarily fails to
establish eligibility for withholding of removal or protection under CAT.” Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1285 n.4 (11th Cir. 2005) (citation omitted).
On appeal, Recinos-Coronado argues that the record compels finding that he
suffered past persecution and has a well-founded fear of future persecution due to
his sexual orientation. Regarding past persecution, Recinos-Coronado argues that
the IJ and BIA erred by concluding that (1) he failed to prove that his
homosexuality was a motivating factor leading to the sexual abuse he suffered and
(2) the harm he suffered as a result of the verbal abuse from both his peers and
father as a child, in addition to the 2013 beating, did not amount to persecution.
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Recinos-Coronado also argues that the BIA wrongly concluded that he failed to
establish a well-founded fear of future persecution. According to Recinos-
Coronado, the BIA ignored the record evidence of the widespread persecution of
homosexuals in Guatemala and failed to give proper weight to the evidence
demonstrating that Guatemalan government entities often fail to protect
homosexuals from harm.
Substantial evidence supports the BIA’s finding that Recinos-Coronado
failed to establish eligibility for asylum based on either past persecution or a well-
founded fear of future persecution. First, the record does not compel a finding that
the BIA erred when it found that the sexual abuse Recinos-Coronado suffered was
not motivated by his homosexuality. The only evidence Recinos-Coronado
provided to suggest his uncle’s intent was his own testimony, in which he agreed
that his youth and inability to protect himself was one of “many things” he
believed motived his uncle, and repeated that he was singled-out “because of the
way that [he] was.” Although Recinos-Coronado’s testimony might support a
contrary conclusion to the BIA’s finding, this testimony, without more, is not
sufficient to compel a reversal. Adefemi, 386 F.3d at 1027. Moreover, the verbal
harassment Recinos-Coronado suffered as a child, coupled with a single beating
that took place many years later—where he did not suffer any lingering or
permanent injuries—does not constitute past persecution because it does not raise
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to the level of sufficiently “extreme” conduct this Court requires. See, e.g.,
Kazemzadeh, 577 F.3d at 1353; Djonda, 514 F.3d at 1171, 1174; Delgado, 487
F.3d at 859, 861.
Second, the record does not compel a finding of a well-founded fear of
persecution because there is no indication in the record that the men who attacked
him in July 2013 either know who he is or are still looking for him, or that any
other person or group is looking for Recinos-Coronado and would seek him out
upon his removal to Guatemala. Furthermore, Recinos-Coronado failed to
establish that the Guatemalan government would be unable or unwilling to protect
him from persecution. Ayala, 605 F.3d at 950. Rather, the record reflects that the
Guatemalan police have conducted a competent, albeit unsuccessful, investigation
of the July 13 attack: the officers promptly arrived at the scene of the attack,
reported the incident, and continue to search for the culprits. Given these efforts, it
cannot be said that the Guatemalan government would be unable or unwilling to
protect Recinos-Coronado in the future. 2
2
In his appellate brief, Recinos-Coronado notes that he can establish a well-founded fear of
future persecution by proving either (1) a reasonable possibility of persecution upon return, or
(2) that there is a “pattern or practice” of persecution against a group to which he belongs. For
the rest of the section, Recinos-Coronado attempts to establish a reasonable possibility of
persecution. Recinos-Coronado did not specifically state the standards required to prove a
pattern or practice of persecution, nor directly tie his facts to a pattern or practice analysis.
Because Recinos-Coronado did not raise the argument “plainly and prominently . . . for instance
by devoting a discrete section of his argument to those claims,” Cole v. U.S. Att’y Gen., 712 F.3d
517, 530 (11th Cir. 2013) (internal quotation marks and quotation omitted), we consider it
waived.
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Finally, because Recinos-Coronado failed to “establish a claim of asylum on
the merits, he necessarily fails to establish eligibility for withholding of removal or
protection under CAT.” Forgue, 401 F.3d at 1285 n.4. Accordingly, we deny
Recinos-Coronado’s petition.
PETITION DENIED.
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