NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1040
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SONIA GLORIBEL ESCOBAR-COTO; K. J. S.-E.,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of a Decision of
the Board of Immigration Appeals
(Agency Nos. 206-772-047, 206-772-027)
Immigration Judge: Lisa de Cardona
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Submitted Under Third Circuit L.A.R. 34.1(a)
July 2, 2020
Before: KRAUSE and PHIPPS, Circuit Judges, and BEETLESTONE, * District Judge.
(Filed: July 20, 2020)
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OPINION †
__________
*
Honorable Wendy Beetlestone, United States District Court for the Eastern District
of Pennsylvania, 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.
BEETLESTONE, District Judge.
Petitioner Sonia Escobar-Coto and her minor daughter seek review of a Board of
Immigration Appeals (“BIA”) order denying them asylum.
PROCEDURAL BACKGROUND
Escobar filed an Application for Asylum, Withholding of Removal, and Conven-
tion Against Torture (“CAT”) protection. In October 2017, the Immigration Judge (“IJ”)
issued a decision finding Escobar to be generally credible, but denying her asylum or
withholding on the grounds that she had failed to show either past persecution or an ob-
jectively reasonable fear of future persecution. The IJ further found that relocation within
Honduras was reasonable. Escobar appealed the decision to the BIA, which upheld the
IJ’s denial of asylum and withholding, finding that Escobar did not face past persecution
and finding further that there was no clear error in the IJ’s finding that she failed to show
an objectively reasonable fear of future prosecution. The BIA also agreed that it was rea-
sonable for Escobar to relocate within Honduras.
Escobar petitioned for review of only the denial of asylum, not the denial of CAT
protection and withholding of removal. The issues presented here are whether the IJ and
BIA erred by: (1) holding that Escobar did not suffer past persecution; (2) holding that
Escobar did not have an objectively reasonable fear of future persecution; and, (3) hold-
ing that it was reasonable for her to relocate within Honduras. 1
1
The BIA’s legal conclusions and applications of law to undisputed facts are re-
viewed de novo. Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir. 2008). Factual find-
ings are reviewed for substantial evidence. Alimbaev v. Att’y Gen., 872 F.3d 188, 196
(3d Cir. 2017). “Substantial evidence is more than a mere scintilla and is such relevant
2
For her and her daughter to qualify as refugees eligible for asylum based on past
persecution, Escobar must show that: (1) she was subject to “one or more incidents rising
to the level of persecution;” (2) the incidents were “‘on account of’ one of the statutorily-
protected grounds,” including membership in a particular social group; and, (3) the inci-
dents were committed “either by the government or forces that the government is either
unable or unwilling to control.” Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006);
see also 8 U.S.C. § 1101(a)(42). It is her burden to show that she meets all three require-
ments. See Abdille, 242 F.3d at 482.
Because we are limited to reviewing the grounds put forth by the agency for its de-
cision, see SEC v. Chenery Corp., 318 U.S. 80, 87 (1943), the central question in this
case is whether Escobar can establish that she was persecuted. The BIA held that Esco-
bar could not show past persecution in part because it construed the threats she experi-
enced as “conditional” rather than “imminent” and, as such, they did not rise to the level
of past persecution. A.R. 5. In reaching this conclusion, the BIA relied primarily on
Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir. 2006).
However, we recently re-visited the standard for when threats rise to the level of
persecution. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020). Previ-
ously, cases in this Court interchangeably required threats to be “concrete” and/or “immi-
nent,” as well as “menacing.” See id. In Herrera-Reyes, we clarified that the standard
evidence as a reasonable mind might accept as adequate to support a conclusion.” Ab-
dille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001) (quoting Senathirajah v. INS, 157 F.3d
210, 216 (3d Cir. 1998)). The IJ’s opinion is reviewed only “where the BIA has substan-
tially relied on that opinion.” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009).
3
for whether a threat constitutes persecution is simply whether it is “concrete and menac-
ing.” Id. The imminence requirement was a misnomer, as immediate harm and close
proximity of harm to other acts of misconduct have never been the focus of the threat
analysis. Id. Thus, the interest is “not the imminence of the threat at all, but rather the
likelihood of the harm threatened.” Id. Such an inquiry is adequately subsumed by the
requirement that the threat be concrete, meaning it is not “abstract or ideal,” but corrobo-
rated by credible evidence, such as the “overall trajectory of the harassment against” the
Petitioner. Id. (citing Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 343 (3d. Cir. 2008)).
And to be menacing, the threat must show “intention to inflict harm.” Id.
The BIA decided the past persecution issue without the benefit of Herrera-Reyes.
As such, this matter is remanded to the BIA for reconsideration of its decision in light of
that case. 2 Remand is not, however, limited to only those issues, and the BIA may ad-
dress any issue properly before it on remand.
2
The BIA also held, in the alternative, that Escobar could not show she held a rea-
sonable fear of future persecution. However, in the event that Herrera-Reyes changes the
BIA’s conclusion regarding past persecution, Escobar would be entitled to a rebuttable
presumption of future persecution, which the BIA did not consider. See Chavarria, 446
F.3d at 520. The BIA thus shall re-evaluate future persecution to the extent relevant based
on its disposition of past persecution and consistent with the guidance in Herrera-Reyes.
4