Darlyn Mass-Montenegro v. Attorney General United States

                                                                  NON-PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 20-3470
                                      ____________

                       DARLYN JOSUE MASS-MONTENEGRO,
                                                Petitioner

                                             v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                           Respondent
                           ____________

                       On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                                (BIA-1 : A206-880-066)
                        Immigration Judge: D’Anna H. Freeman

                       Submitted under Third Circuit LAR 34.1(a)
                                on September 21, 2021

           Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.


                               (Filed: September 22, 2021)
                                       ___________

                                        OPINION*
                                      ____________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
HARDIMAN, Circuit Judge.

       Darlyn Josue Mass-Montenegro petitions for review of a final order of removal

issued by the Board of Immigration Appeals. Because we perceive no error in the

Board’s decision denying Mass-Montenegro withholding of removal and protection

under the Convention Against Torture, we will deny the petition.

                                             I

       In late 2014, Mass Montenegro was removed to his native Honduras after he was

apprehended trying to enter the United States illegally “[t]o reside and seek employment

in Los Angeles.” AR 443. When he was again caught trying to illegally enter the United

States in early 2019, he expressed a fear of persecution or torture if returned to Honduras.

After a hearing, an immigration judge found no past persecution, no likelihood of future

persecution, and no likelihood of torture. So the IJ denied Mass-Montenegro’s petition

for withholding of removal and for protection under the Convention Against Torture

(CAT). The BIA affirmed, and Mass-Montenegro filed this timely petition for review.

                                             II

       Soon after his 2014 removal to Honduras, Mass-Montenegro began volunteering

for the country’s National Party. He was eventually hired to work part-time under

President Hernandez’s Secretary of Culture and Arts. His duties included organizing

cultural events, distributing food, and stage assembly.

       Mass-Montenegro’s feelings towards President Hernandez and the National Party

soured following Honduras’s 2017 election. Shortly after the election, his boss asked him

to help the government infiltrate nationwide protests against President Hernandez. The


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goal, according to Mass-Montenegro, was to cause violence and destruction to sway

public opinion in the government’s favor. When he refused, his boss threatened to fire

him and warned him of “dire consequences.” AR 106. Still, Mass-Montenegro continued

to work without incident for months after this first altercation. Several months later, he

ran into his boss, who “tugged [him] by the shirt,” called him a dog and a traitor, then

threatened to kill him. AR 105–07. Mass-Montenegro quit after this second run-in.

       The day after he quit, four military police officers accosted Mass-Montenegro in

front of his home. He recognized one of the attackers as his former boss’s friend. After

confirming Mass-Montenegro was “the traitor,” AR 110, the officers beat him for 20 to

25 seconds. One of the officers knocked him to his knees by hitting him in the stomach

with the butt of a rifle. While Mass-Montenegro was down, the officers struck him with

batons, kicked him, and insulted him. They also said they were going to break every bone

in his body, kill him, and dump him elsewhere. But the attackers did not fulfill their

threats. When a lookout signaled someone was coming, Mass-Montenegro “took

advantage of the situation” to escape into his house. AR 111. He drove himself to the

hospital ten or fifteen minutes away where he spent a couple hours before being

prescribed pain relievers and four days’ bedrest. Roughly two weeks later, Mass-

Montenegro left Honduras.

                                             III

       We have jurisdiction over the BIA’s final removal order under 8 U.S.C.

§ 1252(a)(1). We apply the deferential substantial evidence standard to the agency’s




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findings of fact but review legal conclusions and applications of law to fact de novo.

Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011).

       The BIA agreed with the IJ that Mass-Montenegro failed to show past persecution.

The BIA held that the IJ’s factual finding that the beating Mass-Montenegro suffered was

not severe was not clearly erroneous. AR 3-4. After it took into account the attack and the

prior threats from Mass-Montenegro’s boss, the BIA decided he had not shown

mistreatment rising to the level of past persecution. And because Mass-Montenegro did

not demonstrate past persecution or offer any evidence that his attackers were still

interested in pursuing him back in Honduras, the BIA concluded he failed to show a

likelihood of future persecution. Moving to his CAT claim, the BIA held Mass-

Montenegro’s past mistreatment did not rise to the level of torture and he had not shown

an inability to relocate within Honduras to avoid any future harm. We find no error in the

BIA’s determinations.

       Persecution is an “extreme concept.” Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d Cir.

1993). For death threats to constitute persecution, they must be so “concrete and

menacing” that they pose a “severe affront to the petitioner’s life or freedom.” Herrera-

Reyes v. Att’y Gen., 952 F.3d 101, 108 (3d Cir. 2020) (cleaned up) (quoting Gomez-

Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir. 2008)). This is a high bar for

petitioners seeking withholding of removal. Here, we agree with the agency that, even

accepting Mass-Montenegro’s factual account of his altercations with his boss and the

military police officers, those interactions did not rise to the level of persecution.




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       The primary incident relating to Mass-Montenegro’s withholding claim is the 25-

second attack by the military police officers. But as this Court has noted, “isolated

incidents that do not result in serious injury do not rise to the level of persecution.” Voci

v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005). The IJ concluded this attack “was [not]

severe enough to rise to the level of persecution” because Mass-Montenegro “could

immediately get up off the ground and run into his house and then drive himself to a

doctor where he received treatment for only two hours and then returned home,” AR 74.

The BIA held that finding was not clearly erroneous. We agree because that finding is

supported by Mass-Montenegro’s own testimony about the attack and his treatment.

       Instead, Mass-Montenegro tries to paint a pattern of mistreatment that gives rise to

persecution. But we find no past persecution even after considering Mass-Montenegro’s

two rows with his boss. The first altercation amounted to only a vague warning of “dire

consequences.” Mass-Montenegro was undeterred and continued working under the same

boss for several months, which undermines his claim of persecution. And although Mass-

Montenegro quit after the next clash with his boss, the insults and shirt tugging did not

pose a “severe affront to his life or freedom.” Gomez-Zuluaga, 527 F.3d at 341 (cleaned

up).

       Mass-Montenegro relies on broad readings of our caselaw to support his position.

But this case is distinguishable from other cases where we found death threats amounting

to persecution. In Herrera-Reyes, the petitioner’s persecutors burned down her home just

a few hours after threatening to kill her. 952 F.3d at 104. The next day, the petitioner’s

travel companion was shot and killed when her persecutors attacked her convoy. Id. In


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Doe v. Attorney General, the petitioner was attacked by a mob and doused in kerosene as

the crowd debated whether to set him on fire or behead him. 956 F.3d 135, 139 (3d Cir.

2020). And in Chavarria v. Gonzalez, the petitioner was stopped in his car, robbed at gun

point, and threatened with death if his persecutors caught him again. 446 F.3d 508, 513

(3d Cir. 2006). We held there that the BIA made several factual conclusions unsupported

by the record that warranted reversal. But as Mass-Montenegro conceded, “[t]he facts in

this case are not in dispute.” Mass-Montenegro Opening Br. 3.

       Mass-Montenegro also argues he is entitled to a presumption of future persecution

because of his past mistreatment. Because he failed to show past persecution, he must

prove it is more likely than not he would face persecution if returned to Honduras. 8

C.F.R. § 208.16(b)(2). But he offered no evidence showing his would-be persecutors

maintained any interest in him. So the BIA did not err when it found Mass-Montenegro

failed to meet this burden.

       Nor did the BIA err when it denied Mass-Montenegro relief under the Convention

Against Torture. For mistreatment to amount to torture it must be even more severe than

persecution. Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). His inability to meet the

persecution standard dooms his torture claim.

                                      *      *      *

       For the reasons stated, we will deny the petition for review.




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