Miranda-Valentin v. Wilkinson ( 2021 )

Case: 19-60568 Document: 00515768430 Page: 1 Date Filed: 03/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 5, 2021
No. 19-60568 Lyle W. Cayce
Summary Calendar Clerk
Margarita Ancela Miranda-Valentin; Brener Jafet
Melendes-Miranda,
Petitioners,
versus
Robert M. Wilkinson, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A202 146 938
BIA No. A202 146 939
Before Owen, Chief Judge, and Dennis and Ho, Circuit Judges.
Per Curiam:*
Margarita Ancela Miranda-Valentin and her son, Brener Jafet
Melendes-Miranda, are natives and citizens of Honduras who petition for
review of the decision of the Board of Immigration Appeals (BIA) affirming
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60568
the denial of their applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT), and dismissing their appeal.
The petitioners argue that the record contains substantial evidence of
their well-founded fear of persecution based on their Garifuna race. They
specifically point to the murder of their family members and Miranda-
Valentin’s partner who were Garifuna. Miranda-Valentin’s testimony,
according to the petitioners, established her fear of returning because the
individuals who murdered her family members and partner may think she is
trying to take land back that gangs and drug traffickers stole. The petitioners
further argue that a gang’s efforts to recruit Melendes-Miranda under threat
of death, based on his Garifuna status, further contributed to their fear of
persecution. Regarding whether Miranda-Valentin could relocate in
Honduras, the petitioners emphasize her testimony that “there’s no safe
place over there anymore.” Finally, the petitioners argue that the hardship
Garifuna in Honduras face is “critical” according to the U.S. State
Department’s Human Rights Report.
This court reviews only the BIA’s decision, “unless the IJ’s decision
has some impact on” that decision, as it did here. Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009). Factual findings are reviewed under the substantial
evidence standard, and legal questions are reviewed de novo. Rui Yang v.
Holder, 664 F.3d 580, 584 (5th Cir. 2011) (quoting Zhu v. Gonzales, 493 F.3d
588, 594 (5th Cir. 2007)). The BIA’s determination that an alien is not
eligible for asylum or withholding of removal is reviewed under the
substantial evidence standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006) (first citing Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005); and
then citing Zamora-Morel v. I.N.S., 905 F.2d 833, 838 (5th Cir. 1990)). Under
that standard, the petitioner must show that “the evidence is so compelling
that no reasonable factfinder could reach” a conclusion contrary to that of
the BIA. Id. (citing Zhao, 404 F.3d at 306). Because the petitioners do not
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raise any arguments as to their request for relief under CAT, they have
abandoned any argument as to that issue. See Chambers v. Mukasey, 520 F.3d
445, 448 n.1 (5th Cir. 2008) (citing Cal. Gas Transp., Inc. v. N.L.R.B., 507
F.3d 847, 852 n.3 (5th Cir. 2007)).
Although the BIA adopted and affirmed the IJ’s decision—which
denied the asylum application as untimely and alternatively on the merits—
the BIA’s decision did not expressly address timeliness. Instead, the BIA
dismissed the appeal of the denial of the asylum application on the merits.
Thus, we will review the merits. Cf. Zhu v. Ashcroft, 382 F.3d 521, 527 (5th
Cir. 2004) (remanding when it was unclear whether the BIA affirmed the IJ’s
decision on a reviewable basis).
Substantial evidence supports the agency’s determination that neither
of the petitioners suffered harm that rose to the level of persecution. See
Chen, 470 F.3d at 1134. Miranda-Valentin claims no past harm to herself, and
the purported past persecution of her family members and partner cannot be
imputed to her. See Morales v. Sessions, 860 F.3d 812, 816 (5th Cir. 2017).
Melendes-Miranda suffered threats by gang members, but threats without
physical harm are generally insufficient to establish past persecution. See
Tesfamichael v. Gonzales, 469 F.3d 109, 114, 116-17 (5th Cir. 2006).
Substantial evidence also supports the agency’s decision that the
petitioners failed to establish a well-founded fear of persecution because
internal relocation was reasonable for them. See 8 C.F.R. § 1208.13(b)(2)(ii)
(2021). The evidence presented by the petitioners is that they both lived,
without incident, in cities several hours away from where their family
members were murdered. Furthermore, the petitioners have several family
members, who are also Garifuna, currently living in Honduras without facing
harm. Finally, the record indicates that the gangs and drug traffickers who
murdered the petitioners’ family members did so because of land disputes as
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opposed to the victims’ Garifuna race. Thus, the petitioners cannot establish
that they are entitled to asylum. See Zhang v. Gonzales, 432 F.3d 339, 344
(5th Cir. 2005) (“To establish a well-founded fear of future persecution, an
alien must demonstrate a subjective fear of persecution, and that fear must
be objectively reasonable.” (quoting Zhao, 404 F.3d at 307)).
Because the petitioners have not shown that they are eligible for
asylum, they cannot meet the higher standard to show that they are eligible
for withholding of removal. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th
Cir. 2012). Therefore, Miranda-Valentin and Melendes-Miranda’s petition
for review is DENIED.
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