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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11678
Non-Argument Calendar
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Agency No. A206-483-146
MARIA ELENA CERRATO-CHIRINOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 14, 2020)
Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Maria Elena Cerrato-Chirinos, a native and citizen of Honduras, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) affirming the
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denial of her application for asylum. After thorough consideration, we deny the
petition for review.
I.
In May 2012, Cerrato-Chirinos entered the United States at the Texas border
without inspection, admission, or parole. She then settled in Pompano Beach,
Florida. On May 2, 2014, Cerrato-Chirinos was served with a notice to appear
before an immigration judge (“IJ”). The notice to appear charged her with
removability under 8 U.S.C. § 1182(a)(6)(A)(i). This statute provides for removal
of any noncitizen present in the United States without being admitted or paroled, or
who arrived in the United States at any time or place other than as designated by
the Attorney General. Cerrato-Chirinos admitted the factual allegations in the
notice to appear and conceded the charge of removability.
On May 30, 2017, Cerrato-Chirinos, with assistance of counsel, filed an
I-589 Application for Asylum and for Withholding of Removal. In her I-589,
Cerrato-Chirinos recounted how her brother, Juan Ramon Chirinos, was killed by
gang members in February 2012 as he was walking to get his bicycle. Cerrato-
Chirinos said she was not present at her brother’s murder and did not know which
gang was responsible. She said that witnesses told her the murderers “had gang
tattoos.” Cerrato-Chirinos also said that, shortly after the murder, gang members
began asking her neighbors about her and her family’s whereabouts. Because of
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the gang members’ expressed desire to “get revenge on Juan’s family,” she said
her “whole family became the target of gang violence” and began living “in
hiding.” She sought asylum and withholding of removal due to her fear that the
gang members will kill her upon her return to Honduras and that the “very corrupt”
Honduran police would “protect the gangs” instead of her. Her application did not
discuss any other incidents as the basis for this fear. At a hearing before the IJ on
October 10, 2017, Cerrato-Chirinos’s counsel said she planned to supplement the
record in advance of the hearing on the merits of her I-589.
In support of her application, Cerrato-Chirinos submitted her own sworn
declaration. In the declaration, Cerrato-Chirinos stated that her brother was
murdered outside a church, that she was inside the church at the time of his
murder, and that she found his body afterwards. She again said that she knew the
men who did this were gang members because eyewitnesses told her that the
murderers had gang tattoos. She also made an additional allegation of gang-related
violence, saying that, in March 2012, she was deliberately hit by a car while she
drove her motorcycle to work. She said that, before she was hit, somebody in the
car yelled at her to “stop or else they’d shoot [her].” She submitted medical
evidence in support of her claim that the motorcycle crash resulted in scars and
other injuries.
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A hearing on the merits of Cerrato-Chirinos’s I-589 was held before the IJ
on January 4, 2018. At the hearing, Cerrato-Chirinos testified that she personally
saw the gang members running away and that she knew they were members of the
Mara 18 gang because they had tattoos of the number eighteen. The IJ discredited
this testimony as contradicted by Cerrato-Chirinos’s prior statements in her I-589
and supplemental declaration.
The IJ also discredited Cerrato-Chirinos’s statement that her motorcycle
crash was caused by gang members. The IJ could not square the “gravity and
importance” of this incident—which Cerrato-Chirinos indicated was the most
significant incident in Honduras that caused her fear of return—with its omission
from the I-589. The IJ credited the remainder of Cerrato-Chirinos’s testimony but
found that she had not established past persecution or an objectively reasonable
fear of future persecution. The IJ also found that Cerrato-Chirinos had not met her
burden of establishing that Honduran authorities were unable or unwilling to
protect her from the alleged persecution or that she could not safely relocate within
Honduras, as her parents and sisters have done.
Cerrato-Chirinos appealed the IJ’s denial of her I-589 to the BIA. The BIA
dismissed the appeal and affirmed the IJ in all relevant respects. The BIA did not
reach the question of whether Cerrato-Chirinos suffered past persecution or
whether she made out a claim under the Convention Against Torture (“CAT”)
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because she did not raise these issues on appeal. This petition for review timely
followed.
II.
“When the BIA issues a decision, we review the BIA’s decision, except to
the extent that the BIA has expressly adopted the IJ’s decision.” Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007). To the extent the BIA “agreed with the
findings of the [IJ],” we review both decisions. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350 (11th Cir. 2009).
The BIA’s findings of fact, including determinations of credibility and the
question of whether the applicant has established persecution on the basis of a
protected ground, are reviewed for substantial evidence. Rodriguez Morales v.
U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007); D-Muhumed v. U.S. Att’y
Gen., 388 F.3d 814, 817–18 (11th Cir. 2004). Under this “highly deferential”
standard, “[w]e view the record evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision.”
Kazemzadeh, 577 F.3d at 1351 (quotation marks omitted). The Court “may not
substitute its judgment for that of the BIA with respect to credibility findings.” D-
Muhumed, 388 F.3d at 818.
The BIA’s application of relevant law to fact is reviewed de novo. Id.
at 817. We “must affirm the BIA’s decision if it is supported by reasonable,
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substantial, and probative evidence on the record considered as a whole.” Id.
at 818 (quotation marks omitted).
III.
“To be eligible for asylum, an applicant bears the burden of proving that
[she] is a ‘refugee’ within the meaning of the INA.”1 Sanchez Jimenez v. U.S.
Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007) (citing, inter alia, 8 U.S.C.
§ 1158(b)(1)(A)). “A refugee is defined as one who is unable or unwilling to
return to his or her home country ‘because of [past] persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Yang v. U.S. Att’y Gen., 418 F.3d
1198, 1202 (11th Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)).
Cerrato-Chirinos makes three arguments on appeal. First, she challenges
the IJ’s adverse credibility determination regarding the motorcycle crash. Second,
she argues she has established a well-founded fear of persecution. Third, she seeks
to revive her claim that she is a refugee because of past persecution, an argument
which the BIA said she abandoned. Because Cerrato-Chirinos has not met her
1
As noted above, Cerrato-Chirinos initially sought withholding of removal under the
CAT but did not appeal the IJ’s denial of her petition on that ground. As a result, we do not
address any arguments on this ground she may have made in the proceedings before the IJ. See
Najjar v. Ashcroft, 257 F.3d 1262, 1282 n.12 (11th Cir. 2001).
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burden of proving the IJ or the BIA erred in determining any of these issues, we
deny her petition for review.
A.
Cerrato-Chirinos challenges the IJ’s finding that her testimony regarding the
motorcycle crash was not credible. To rebut this adverse finding, Cerrato-Chirinos
must “show that the finding is not supported by specific, cogent reasons or was not
based on substantial evidence.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332
(11th Cir. 2011) (per curiam) (quotation marks omitted). A petitioner’s “own
testimony can suffice where the testimony is believable, consistent, and
sufficiently detailed.” Id. (emphasis and quotation marks omitted).
The BIA affirmed the IJ’s adverse finding on the ground that Cerrato-
Chirinos did not mention the crash in her initial petition for withholding, despite
her later statement identifying the crash as the most significant event that happened
to her in Honduras. Cerrato-Chirinos argues that the BIA’s characterization of the
motorcycle crash as a “new allegation” shows the BIA erred by not considering her
supplemental statement setting forth the details of the motorcycle crash. But the
question is not whether Cerrato-Chirinos timely alleged the motorcycle crash was
caused by the gang members; it is whether it was reasonable for the IJ and the BIA
to find that this allegation was not credible because of its absence from her initial
application. The BIA did not disregard the supplemental statement setting forth
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Cerrato-Chirinos’s recollection of the crash. Rather, the BIA, like the IJ, found
that Cerrato-Chirinos’s failure to mention this allegation in her initial application
cast doubt on the credibility of this assertion. The BIA’s characterization of this
allegation as “new” does not suggest otherwise.
We conclude the BIA and the IJ provided cogent reasons supported by
substantial evidence for this adverse credibility determination. See Forgue v. U.S.
Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (upholding adverse credibility
determination based on substantial evidence).
B.
Cerrato-Chirinos also attacks the finding that she has not established a well-
founded fear of persecution. An applicant may establish a well-founded fear of
persecution by showing she has “a fear of persecution in [her] country of
nationality on account of a protected ground, a ‘reasonable possibility’ of suffering
persecution if [she] returns to that country, and that [she] is unable or unwilling to
return because of [her] fear.” Kazemzadeh, 577 F.3d at 1352 (quoting 8 C.F.R.
§ 208.13(b)(2)(i)). “An applicant does not have a well-founded fear of persecution
if the applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality . . . if under all the circumstances it would be
reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(2)(ii). The
applicant is presumed to carry her burden of proof by showing that the persecution
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is by a government actor or is government-sponsored, but the presumption can be
rebutted by a showing “that, under all the circumstances, it would be reasonable for
the applicant to relocate.” Kazemzadeh, 577 F.3d at 1352 (quotation marks
omitted) (citing 8 C.F.R. § 208.13(b)(3)).
The BIA first affirmed the IJ’s finding that Cerrato-Chirinos has not
presented a reasonable possibility of future persecution. This finding was based on
Cerrato-Chirinos’s failure to “present[] any evidence establishing that the gang
members who killed her brother have continued to look for her or her family
members in the 6 years since she left Honduras.” Cerrato-Chirinos does not
challenge this finding in her brief, so any objection she might have to it is deemed
abandoned. See Najjar, 257 F.3d at 1282 n.12.
The BIA next held that Cerrato-Chirinos has not demonstrated fear of
persecution by a government or a government-sponsored group and affirmed the
IJ’s finding that she has not carried her burden of showing it would be
unreasonable for her to relocate within Honduras. On this point, Cerrato-Chirinos
says simply that the IJ and the BIA “failed to consider” her testimony and other
evidence that her parents have been “living in hiding and in fear” since her
brother’s murder and the motorcycle crash. But, in fact, the BIA specifically cited
to Cerrato-Chirinos’s testimony, stating that her claim on this point was not enough
to “meet her burden to establish that she could not reasonably relocate within
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Honduras.” The BIA held that this testimony was undermined by the fact that
Cerrato-Chirinos’s parents continue to live in the same town, that her sisters
successfully relocated within Honduras, and that Cerrato-Chirinos did not attempt
to relocate within Honduras before coming to the United States. Cerrato-Chirinos
has not shown us this conclusion was unsupported by substantial evidence.
Finally, the IJ and the BIA both ruled that Cerrato-Chirinos has not
established the government of Honduras would be unable or unwilling to protect
her. The BIA noted Cerrato-Chirinos failed to report the murder or the motorcycle
crash to local authorities in Honduras, something that “generally is fatal to an
asylum claim.” See Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir.
2007). While the BIA acknowledged that the failure to seek government
protection may be excused if the applicant “convincingly demonstrates that those
authorities would have been unable or unwilling to protect her,” id., the BIA
agreed with the IJ that the evidence submitted by Cerrato-Chirinos did not satisfy
this requirement.
Cerrato-Chirinos challenges this finding on the ground that she and her
family were too fearful to report these run-ins with the gang to Honduran police,
which she alleges—and the IJ acknowledged—has “some level of corruption.”
But Cerrato-Chirinos’s only evidence on this point is “background materials”
showing government corruption is prevalent in Honduras. This type of general
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evidence is not enough to show that the police would have been unable or
unwilling to assist her. See Castillo Munoz v. U.S. Att’y Gen., 786 F. App’x 988,
992 n.3 (11th Cir. 2019) (per curiam) (unpublished) (“[W]here, as here, the
applicant cites general concerns about bribery as her reason for not seeking out
government protection, the agency’s decision will ordinarily survive substantial
evidence review.” (citing, inter alia, Lopez, 504 F.3d at 1345)).
We conclude that the BIA and the IJ had substantial evidence for finding
that Cerrato-Chirinos has not established a well-founded fear of persecution.
C.
The BIA did not consider whether Cerrato-Chirinos established past
persecution—an alternative method of establishing eligibility for asylum—because
she did not present that issue for appeal. Cerrato-Chirinos now says she did not
need to raise the issue on appeal because the IJ made a finding in her favor on this
point. While it is true the IJ said during the merits hearing that the alleged
motorcycle attack constitutes past persecution, it is clear he meant that the
allegations, if true, would constitute a prima facie case of persecution. In this case,
the IJ did not credit Cerrato-Chirinos’s testimony about the motorcycle crash, and
clearly decided that she was not eligible for asylum on the basis of past
persecution. Cerrato-Chirinos appealed from the IJ’s oral decision but she did not
challenge his conclusion that “the past mistreatment of [Cerrato-Chirinos] in her
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home country does not rise to the level of past persecution.” Her failure to
challenge this finding on appeal constitutes abandonment of the issue, and we
cannot consider it. See Najjar, 257 F.3d at 1282 n.12.
IV.
For these reasons, Cerrato-Chirinos’s petition for review is DENIED.
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