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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10019
Non-Argument Calendar
________________________
Agency No. A206-312-078
JHENSY ROSMERY PENA-NOLASCO,
DOUGLAS FRANCISCO LOPEZ-PENA,
JHENSY JUDITH LOPEZ-PENA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 30, 2020)
Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jhensy Pena-Nolasco, her son Douglas Lopez-Pena, and her daughter Jhensy
Lopez-Pena seek review of a Board of Immigration Appeals (“BIA”) decision
affirming the immigration judge’s denial of Pena-Nolasco’s request for asylum
under Section 208 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158
(2018); withholding of removal under 8 U.S.C. § 1231(b)(3); and protection under
the Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). The BIA affirmed
the immigration judge’s decision on the grounds that Pena-Nolasco had failed to
establish (1) past persecution on account of membership in a protected group, (2) a
well-founded fear of future persecution, and (3) that the Honduran government is
unable or unwilling to protect her or that the immigration judge erred when it found
that she could avoid persecution by relocating within Honduras. Pena-Nolasco
petitioned this Court for review. Because substantial evidence supports the BIA’s
decision, we deny the petition for review.
BACKGROUND
Petitioners in this case are a mother, son, and daughter, all of whom are natives
and citizens of Honduras. Lead Petitioner Pena-Nolasco and her son Douglas entered
the United States together without inspection on November 2, 2013, and were placed
in removal proceedings shortly after arrival. Her daughter Jhensy entered without
inspection on or about January 15, 2014. Shortly after Jhensy arrived, she was placed
in removal proceedings, and her case was consolidated with that of her mother and
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brother. Pena-Nolasco submitted an application for asylum on November 5, 2014.
She listed her son and daughter as derivatives to her asylum claim and indicated that
she sought protection on account of her membership in a family-based particular
social group. She filed an updated application on February 1, 2018, containing
support for her withholding of removal and CAT claims.
Pena-Nolasco testified that she was born in Honduras in the municipality of
San Francisco de Ojuera, Department of Santa Barbara. She married her husband,
Francisco Lopez, in 2010 and moved to his hometown of San Pedro Sula in the
Rivera Hernandez neighborhood, where his extended family lived. Her husband’s
brother, Cristian Cecilio Lopez, was a neighborhood leader in the MS-13 gang there.
Cecilio sold drugs and firearms, extorted local businesses, and defended MS-13
operations from interference by rival gangs. At one point, Cecilio himself killed the
brother of a member of a rival gang known as Mara 18. Pena-Nolasco testified that
in response to that killing, members of Mara 18 sought revenge. She testified that
members of Mara 18 killed her son, Cristian Lopez, and that from that point onward
her family received death threats over the phone and in writing demanding that they
leave San Pedro Sula or be killed as well. Pena-Nolasco claimed that these threats
were similar to ones received by other relatives before they had been murdered. She
attributes several family members’ deaths to Mara 18, including the murders of
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several of her husband’s cousins, two of her husband’s brothers (including Cecilio),
and her husband’s uncle.
Pena-Nolasco explained that since the harassment by Mara 18 began, she and
her family have relocated several times. After her first relative was killed, Pena-
Nolasco moved from San Pedro Sula to Santa Barbara, approximately three hours
away. After two months, she and her family returned to San Pedro Sula “thinking
things were going to be back to normal.” After her son Cristian was killed, she and
her family decided to relocate to San Francisco de Ojuera. Pena-Nolasco testified
that her family did not receive any direct threats while living in San Francisco de
Ojuera. However, a few days after the move, neighbors from San Pedro Sula came
to their new home and told them that several men on motorcycles had appeared in
their old neighborhood asking for their whereabouts. Afterwards, Pena-Nolasco and
her husband decided that it was necessary to leave Honduras. Her husband sold his
business and sent her and their son to the United States, with their daughter following
soon after.
The immigration judge issued an oral decision denying Pena-Nolasco’s
applications for asylum, withholding of removal, and CAT relief. The judge ruled
that Pena-Nolasco had: (1) failed to provide reasonably available corroborating
evidence to support her claims; (2) failed to timely file her asylum application; (3)
failed to show that she had suffered harm in Honduras rising to the level of
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“persecution”; (4) not shown that she was threatened by the government or a group
the government was “unable or unwilling” to control; (5) not established a nexus
between the threats she received and a statutorily protected ground—race, religion,
nationality, membership in a particular social group, or political opinion; (6) not
established a well-founded fear of future persecution that was objectively
reasonable; and finally (7) failed to show that a public official would acquiesce to
any harm she might face in Honduras necessary to prevail on her request for CAT
protection.
Pena-Nolasco appealed the immigration judge’s decision to the BIA. As an
initial matter, the Board held that consideration of the timeliness of Pena-Nolasco’s
application was unnecessary because her application failed on the merits. It affirmed
the immigration judge’s decision for three main reasons, concluding that Pena-
Nolasco had (1) not established past persecution because she did not present
evidence that she was personally harmed by her alleged persecutors; (2) not shown
a well-founded fear of future persecution in Honduras on account of her membership
in a particular social group—or that any of her six proposed particular social groups,
all based on family relations—were cognizable under the INA; and (3) not shown
that the Honduran government is unable or unwilling to prevent private actors from
harming her or that the immigration judge clearly erred by finding that Pena-Nolasco
could avoid persecution or future threats by relocating within Honduras.
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STANDARD OF REVIEW
We review the BIA’s legal conclusions de novo, Perez-Zenteno v. U.S. Att’y
Gen., 913 F.3d 1301, 1306 (11th Cir. 2019) (citation omitted), and its factual
findings under the “highly deferential substantial evidence test,” Adefemi v.
Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc) (citation omitted).
Under that test, the BIA’s factual findings “are conclusive unless the record
demonstrates that ‘any reasonable adjudicator would be compelled to conclude the
contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (quoting
8 U.S.C. § 1252(b)(4)(B)). We will affirm the BIA’s decision if it is supported by
“reasonable, substantial, and probative evidence on the record considered as a
whole.” Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1286 (11th Cir. 2020)
(citation omitted). When the record “could support or contradict the conclusion of
the BIA, we must affirm its decision.” Recinos v. U.S. Att’y Gen., 566 F.3d 965, 967
(11th Cir. 2009) (citation omitted).
DISCUSSION
On appeal, Pena-Nolasco challenges each of the several grounds relied upon
by the immigration judge in denying her request for relief. We limit our review to
the decision of the BIA and “the decision of the Immigration Judge to the extent that
the [BIA] expressly adopted the opinion of the Immigration Judge.” Kazemzadeh v.
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U.S. Att’y. Gen., 577 F.3d 1341, 1350 (11th Cir. 2009) (citing Mohammed v. U.S.
Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008).
I.
The BIA did not address whether Pena-Nolasco’s asylum application was
timely filed, concluding that consideration of that issue was “unnecessary because .
. . the respondent has not met her burden to establish that she is eligible for asylum
on the merits.” Because the BIA did not consider the timeliness of Pena-Nolasco’s
application, that issue is not before us on appeal. Instead, we review the BIA’s
consideration of the merits of Pena-Nolasco’s application.
On the merits, substantial evidence supports the BIA’s finding that Pena-
Nolasco did not establish past persecution. Where, as here, an applicant alleges
persecution by a private actor, she must prove that she is “unable to avail [her]self
of the protection of [her] home country.” Sama v. U.S. Att’y Gen., 887 F.3d 1225,
1234 (11th Cir. 2018) (citation omitted). In such cases, failure to seek protection by
reporting alleged persecution to local authorities is “generally fatal to an asylum
claim.” Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (citing
Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001)). However, this
failure is excused where the applicant convincingly demonstrates the futility of
seeking assistance from those authorities because they would have been unable or
unwilling to protect her. Id.
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Pena-Nolasco cannot establish past persecution because she cannot
demonstrate that she availed herself of the protection of Honduran authorities, or
alternatively that it would have been futile to do so. First, she provided no evidence
that she filed a police report or made any effort to avail herself of local authorities
while in Honduras. She testified that she did not start receiving threats until her son
was killed in 2013. She also testified that she did not contact the authorities
immediately after her son was killed. Instead, she waited until she was already in the
United States. Second, the record indicates that while gang violence is prevalent in
Honduras, the Honduran government is making efforts to curb such violence and
improve the effectiveness of law enforcement. Other members of Pena-Nolasco’s
family have remained in Honduras since 2010, when Cecilio killed a member of
Mara 18. And when Pena-Nolasco finally contacted the Honduran police from the
United States to report her son’s death, the police recorded her statement.
Accordingly, the record in this case does not compel reversal of the BIA’s
determination that Pena-Nolasco failed to establish past persecution.
Substantial evidence also supports the BIA’s finding that Pena-Nolasco did
not establish a well-founded fear of future persecution on account of a protected
ground. Where an asylum applicant has not established past persecution, the burden
is on her to demonstrate a well-founded fear of future persecution. 8 C.F.R. §
1208.13(b)(2). An applicant does not have a well-founded fear of prosecution if she
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could avoid persecution by relocating to another part of her home country, provided
that it would be reasonable to do so. 8 C.F.R. § 1208.13(b)(2)(ii); see also Arboleda
v. U.S. Att’y Gen., 434 F.3d 1220, 1223–24 (11th Cir. 2006) (noting that we have
upheld the imposition of a “country-wide” requirement).
During her testimony, Pena-Nolasco admitted that she was able to find safety
when she left her husband’s neighborhood in San Pedro Sula for her hometown of
San Francisco de Ojuera. The government sought to clarify this point at the merits
hearing, asking: “And you didn’t receive threats from the gang when you were living
in your hometown. Is that correct?” Pena-Nolasco replied “Yes.” Although Pena-
Nolasco now argues that men on motorcycles came to San Francisco de Ojuera and
asked her neighbors for her whereabouts, her declaration states that the men on
motorcycles appeared in a town she had recently departed. She testified that “[a] few
days later living in San Francisco de Ojuera, the residents of the town that we
previously lived, had gone to the new place where we now lived and told us that
many men on motorcycles were asking the neighbors about us.” (emphasis added).
Consequently, the record does not compel reversal of the BIA’s determination that
it would be possible for Pena-Nolasco to safely relocate within Honduras.
Because the BIA’s affirmance of the immigration judge’s past-persecution
and relocation findings alone are adequate bases for denying Pena-Nolasco’s asylum
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claim, we need not consider the other grounds relied on by the immigration judge
and affirmed by the BIA.
II.
A claim for withholding of removal requires Pena-Nolasco to meet a higher
standard of proof than an asylum claim. Under the withholding of removal provision
of the INA, she must first show that her “life or freedom would be threatened in that
country because of [her] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). She must then demonstrate
that it is “‘more likely than not’ she will be persecuted or tortured upon being
returned to her country.” Sepulveda v. U.S. Att’y. Gen., 401 F.3d 1226, 1232 (11th
Cir. 2005) (citing Fahim, 278 F.3d at 1218). Because substantial evidence supports
the BIA’s determination that Pena-Nolasco failed to meet the lower standard of proof
for asylum, it necessarily follows that she also failed to meet the more stringent
standard for withholding of removal. Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1249 n.3 (11th Cir. 2006) (“[I]t is axiomatic that where an applicant fails
to meet the burden for asylum, he necessarily cannot meet the more stringent burden
for withholding of removal.” (citations omitted)); Forgue v. U.S. Att’y. Gen., 401
F.3d 1282, 1288 n.4 (11th Cir. 2005) (“Because [the applicant] has failed to establish
a claim of asylum on the merits, he necessarily fails to establish eligibility for
withholding of removal or protection under CAT.” (citation omitted)).
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III.
Pena-Nolasco’s request for CAT relief fails for the same reason. An applicant
seeking protection under CAT must likewise show that she would “more likely than
not” be tortured if removed to her proposed country of removal. 8 C.F.R. §
208.16(c)(2). Because substantial evidence supports the BIA’s determination that
she has failed to meet the lower standard of proof for asylum, she necessarily fails
to establish eligibility for protection under CAT. Forgue, 401 F.3d at 1288 n.4.
CONCLUSION
For the foregoing reasons, Pena-Nolasco’s petition for review is DENIED.
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