Junior Alfredo Medina Acosta v. U.S. Attorney General , 704 F. App'x 869 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16077
Non-Argument Calendar
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Agency No. A206-261-095
JUNIOR ALFREDO MEDINA ACOSTA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 23, 2017)
Before MARTIN, FAY and ANDERSON, Circuit Judges.
PER CURIAM:
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Junior Alfredo Medina Acosta petitions for review of the Board of
Immigration Appeals (“BIA”) final order affirming the denial by the Immigration
Judge (“IJ”) of his application for asylum, withholding of removal, and Convention
Against Torture (“CAT”) relief. We deny the petition in part and dismiss in part.
I. BACKGROUND
Acosta, a native and citizen of Honduras, entered the United States without
inspection in January 2014. Border patrol agents encountered Acosta soon after
his entry and he expressed no fear of return. In a later credible-fear interview,
however, Acosta informed immigration officials that he feared returning to
Honduras due to threats from a man named Jose Antonio Sarmiento, who blamed
Acosta’s father for the death of his nephew and who had killed Acosta’s
grandfather, had his cousin killed, and had shot at Acosta. He claimed Sarmiento
was connected to a man named Lucio Rivera, who was related to a Honduran
legislative representative.
In February 2014, Acosta was issued a Notice to Appear by the Department
of Homeland Security (“DHS”), stating he was removable under the Immigration
and Nationality Act (“INA”) § 212(a)(7)(A)(i)(1), 8 U.S.C. § 1182(a)(7)(A)(i)(1),
for being an alien who at the time of admission did not possess a valid entry
document. Acosta conceded removability as charged. In November 2014, Acosta
filed an application for asylum, withholding of removal, and CAT relief, based on
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membership in a particular social group.1 He stated he and his family had been
targeted by members of the Sarmiento family, because they wanted ownership and
control of Acosta’s uncle’s land. He also submitted evidence regarding multiple
attacks on his family members.
At the merits hearing, Acosta testified he came to the United States, because
he was afraid of being murdered by Sarmiento. In 2002, Sarmiento began harming
his family, because of a dispute over land purchased by Acosta’s uncle in 2001.
Sarmiento had wanted to purchase the land but Acosta’s uncle had purchased it
instead. Acosta testified Sarmiento wanted “to get even” and Sarmiento had tried
to kill his uncle but had not succeeded. R. at 151. Sarmiento wanted to kill Acosta
and his father due to their familial relationship with his uncle.
Acosta testified that, in 2002, Sarmiento shot at his uncle and aunt. They
reported the crime but the police did not arrest Sarmiento. Sarmiento moved to the
United Sates; upon his return in 2008, he shot and killed Acosta’s grandfather.
Acosta’s family reported the crime but there was no investigation. Acosta believed
Sarmiento was “involved with” the police, because he had a friend who worked
with the police. R. at 157. Later in 2008, Sarmiento shot at Acosta but missed.
Afraid of making things worse, Acosta did not report it to the police. He dropped
out of school and could not go out, because he was afraid of being killed.
1
He also alleged persecution based on political opinion, but that ground is not at issue on appeal.
3
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In 2010, Acosta’s father was shot at but was not wounded; his father did not
see who fired the shot but Acosta testified his father did not have problems with
anyone other than Sarmiento. Later that year, Sarmiento and others, dressed as
military, shot and wounded Acosta’s uncle and cousin. In 2011, Sarmiento hired
an assassin to kill a younger male cousin of Acosta. In 2013, Sarmiento was
arrested and went to trial for the deaths of Acosta’s grandfather and cousin; he was
found not guilty.
The IJ asked Acosta about his credible-fear interview, in which Acosta said
Sarmiento wanted to harm him because he blamed Acosta’s father for killing
Sarmiento’s nephew. Acosta denied saying this, but he later conceded that he
might have said that and admitted his father had been accused in the death of
Sarmiento’s nephew. Acosta testified he did not mention the land dispute during
his credible-fear interview because he was nervous. Acosta also admitted he
moved to his aunt’s house in the capital for three months and he was not harmed
during this time, but Acosta stated it was because he did not leave her house.
The IJ denied Acosta’s claims for asylum, withholding of removal, and CAT
relief. While the IJ found Acosta was not credible based on the differing reasons
he gave for Sarmiento’s attacks, the IJ assumed the reason for the attacks was the
land dispute, because Acosta had provided corroborating evidence. The IJ found
Acosta had shown he was a member of a “particular social group defined as male
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relatives of his family from the root of his grandfather on the paternal side on
down.” R. at 70. The IJ found, however, that Acosta and his family had been
targeted by criminals in pursuit of their criminal activity and this did not suffice to
show persecution on account of a protected ground. Acosta’s family was involved
in an interfamily dispute and private violence of this type had been held not to be
on account of a particular social group. Although Acosta had established past
harm, he failed to show past persecution, because there was no nexus with a
protected ground.
The IJ also determined Acosta failed to meet his burden to show he could
not safely relocate within Honduras. Acosta spent three months in the capital
without being harmed and Sarmiento had not harmed any members of Acosta’s
family within the past two years. The IJ did not accept Acosta’s contention that his
family members were virtually prisoners in their own homes and noted they were
farming and raising cattle to some extent. The IJ found Acosta did not establish he
could not relocate reasonably within Honduras away from the villages where the
harm took place and that he would be harmed if he moved elsewhere. Acosta’s
claim that Rivera had government connections and would find him if he relocated
was speculative and unsubstantiated. The IJ further found, because the police
arrested Sarmiento and he stood trial, the government did not turn a blind eye to
the harm nor was it unwilling to protect Acosta.
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The IJ concluded Acosta failed to show past persecution or a well-founded
fear of persecution based on one of the protected grounds and thus did not meet his
burden for asylum. Acosta therefore could not meet the higher burden of
eligibility for withholding of removal. As to Acosta’s CAT claim, the IJ noted
Acosta gave no specific testimony as to this claim and found there was no evidence
indicating the government of Honduras would either torture Acosta directly or
acquiesce to his torture. The IJ therefore concluded Acosta had not met his burden
for CAT relief.
Acosta appealed to the BIA and argued the IJ erred in denying his asylum
application. Acosta made no argument concerning the denial of his application for
CAT protection. The BIA affirmed the IJ’s decision. In concluding that Acosta
had not established eligibility for asylum, the BIA did not address Acosta’s
credibility and assumed he was credible. It agreed with the IJ that Acosta did not
demonstrate past persecution on account of a protected ground, because he did not
show the harm he suffered was on account of his membership in a particular social
group. Even though Acosta’s proposed social group might qualify as a particular
social group under the INA, the BIA agreed the record did not establish the harm
Acosta feared was or would be on account of his membership in that group. The
harm, which arose from a land dispute and Sarmiento’s purported desire to retaliate
for the death of a relative, was the result of criminal activity. Although there might
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be scenarios in which a family owning land could be victims of persecution as a
family, in this case, Acosta had not shown Sarmiento had singled out his family or
continued to pursue them in order to make an example of them in the town.
Because Acosta did not show past persecution, he had the burden to show he
could not reasonably relocate. The BIA agreed with the IJ’s conclusion that
Acosta failed to meet his burden, because no male family member had been
harmed for at least two years and Acosta’s speculation that Rivera may have
government connections was insufficient to establish the possibility of future harm
was country-wide. The BIA also concluded Acosta failed to show the Honduran
authorities were unable or unwilling to protect him and his family.
Because Acosta was unable to demonstrate eligibility for asylum, he was
precluded from qualifying for withholding of removal, which required a higher
burden of proof. The BIA noted Acosta had not meaningfully challenged the IJ’s
denial of his CAT claim but agreed with the IJ that Acosta had not shown it was
more likely than not he would be tortured by or with the acquiescence of the
government if returned to Honduras. The BIA dismissed Acosta’s appeal.
II. DISCUSSION
A. Claim for Asylum and Withholding of Removal
On petition for review, Acosta argues the IJ and BIA improperly concluded
he failed to show his membership in a particular social group was a central reason
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for past or future persecution. He also argues the IJ and BIA erred in finding he
could safely and reasonably relocate within Honduras and in concluding he failed
to show the Honduran government was unable or unwilling to protect him.
We review only the decision of the BIA, except to the extent the BIA
expressly adopts the IJ’s decision. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we also will review the
IJ’s decision to that extent. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.
2010). Because the BIA issued its own opinion in this case, we will review the
BIA’s opinion. Najjar, 257 F.3d at 1284. Further, because the BIA explicitly
agreed with several findings of the IJ, we may review the decisions of the both the
BIA and the IJ as to those issues. Ayala, 605 F.3d at 948.
We review legal determinations by the BIA de novo. Id. Factual
determinations are reviewed under the substantial-evidence test, requiring us to
affirm the decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (quoting Silva v. U.S. Att’y
Gen., 448 F.3d 1229, 1236 (11th Cir. 2006)). We view the evidence in the light
most favorable to the BIA’s decision and draw all reasonable inferences in favor of
that decision. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013).
We only will reverse when the record compels it. Id.
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The Attorney General or Secretary of DHS has discretion to grant asylum if
an alien meets the definition of a “refugee” in the INA. INA § 208(b)(1), 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the
burden of proving statutory “refugee” status. 8 C.F.R. § 208.13(a); Najjar, 257
F.3d at 1284. To establish eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a well-founded fear that the statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(b)(1), (2).
“To establish asylum based on past persecution, the applicant must prove (1)
that []he was persecuted, and (2) that the persecution was on account of a protected
ground.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1007 (11th Cir. 2008).
If an applicant fails to demonstrate past persecution, he may still establish asylum
based on a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(2); De
Santamaria, 525 F.3d at 1007. The applicant may prove eligibility by
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demonstrating (1) a subjectively genuine and objectively reasonable
fear of persecution that is (2) on account of a protected ground. The
subjective component is generally satisfied by the applicant’s credible
testimony that he or she genuinely fears persecution. The objective
prong can be fulfilled by establishing that the applicant has a good
reason to fear future persecution.
De Santamaria, 525 F.3d at 1007 (citations and internal quotation marks omitted).
“An applicant does not have a well-founded fear of prosecution if [he] could avoid
persecution by relocating to another part of [his] country of nationality . . . if under
all the circumstances it would be reasonable to expect [him] to do so.” 8 C.F.R. §
208.13(b)(2)(ii). Where an applicant has not established past persecution, he bears
the burden of showing it would be unreasonable for him to relocate, unless the
persecution is by a government or is government-sponsored. Id. § 208.13(b)(3)(i).
To establish persecution on account of a protected ground, an applicant must
show race, religion, nationality, political opinion, or membership in a particular
social group “was or will be at least one central reason for persecuting the
applicant.” INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). “[E]vidence that .
. . is consistent with acts of private violence . . . or that merely shows that a person
has been the victim of criminal activity, does not constitute evidence of persecution
based on a statutorily protected ground.” Rodriguez, 735 F.3d at 1310 (first
alteration in original) (quoting Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th
Cir. 2006)). To be entitled to withholding of removal, an alien must establish that
his life or freedom would be threatened on account of his race, religion,
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nationality, political opinion, or membership in a particular social group, which
means that it is “more likely than not” he will be persecuted or tortured on account
of a protected ground upon being returned to his country. Sanchez Jimenez v. U.S.
Att’y Gen., 492 F.3d 1223, 1238 (11th Cir. 2007). “Where an applicant fails to
meet the burden for asylum, he necessarily cannot meet the more stringent burden
for withholding of removal.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1249 n.3 (11th Cir. 2006).
Acosta testified Sarmiento wanted to harm him and members of his family,
because his uncle had purchased land Sarmiento wanted and Sarmiento wanted “to
get even.” R. at 149-51. Evidence attached to Acosta’s asylum application also
described how his uncle and cousin were shot at, because of “personal enmity over
some lands” and “a personal feud.” R. at 282-85, 312. Acosta also testified his
father had been accused in the death of Sarmiento’s nephew. Substantial evidence
therefore supports the determination that this is a personal feud and Sarmiento’s
actions constitute acts of private violence and criminal activity. See Rodriguez,
735 F.3d at 1310.
The fact that the targets of this private dispute happen to be members of a
family that could qualify as a particular social group does not compel the
conclusion that the resulting harm is on account of such membership; nothing in
the record shows Sarmiento was motivated by any animus toward the Acosta
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family independent of his personal feud with them over the land or over his
nephew’s death. Acosta did not deny that if his uncle sold Sarmiento the land, it
might stop Sarmiento from targeting his relatives. Accordingly, the record does
not compel the conclusion Acosta’s membership in a particular social group was or
will be at least one central reason for any past or future persecution. Id. at 1308.
Although Acosta tried to connect Sarmiento to Rivera, who he claimed was
related to someone in the Honduran government, Acosta could only speculate as to
the connection. Acosta admitted he lived with his aunt in the capital for three
months without being harmed and Sarmiento had not harmed a member of
Acosta’s family in two years. Although Acosta testified his family members in
Honduras only survived by staying inside their houses “locked up” and hired
people to work for them, Acosta testified that his father was not wealthy and
managed a herd of cattle and thus was able to go about his business. R. at 176-77.
Acosta also testified his mentally-ill uncle went outside and had not been harmed
by Sarmiento. Substantial evidence therefore supports the BIA’s and IJ’s
determination that Acosta could reasonably and safely relocate within Honduras.
See Rodriguez, 735 F.3d at 1308.
Finally, despite Acosta’s claim Sarmiento was involved with the police, he
conceded Sarmiento was arrested and tried for the murders of his grandfather and
cousin. As noted above, Acosta could only speculate Sarmiento was connected to
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Rivera and there was evidence in the record that Rivera, a drug dealer and
criminal, had also been arrested. The record does not compel the conclusion the
Honduran government was unable or unwilling to protect Acosta. See id.
B. Claim for CAT Relief
In his petition for review, Acosta also argues he established entitlement to
CAT relief, because it is more likely than not that, upon his return to Honduras, he
will be tortured with the consent or acquiescence of the government. We “lack
jurisdiction to consider a claim raised in a petition for review unless the petitioner
has exhausted his administrative remedies with respect thereto.” Amaya-
Artunduaga, 463 F.3d at 1250. Issues not reached by the BIA are not properly
before us. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Even
though the BIA addressed Acosta’s CAT claim, he failed to raise the issue before
the BIA and therefore it is unexhausted. See Amaya-Artunduaga, 463 F.3d at
1250. Neither the notice of appeal to the BIA nor Acosta’s brief to the BIA
challenges the denial of his CAT claim. The petition for review is therefore
dismissed for lack of jurisdiction as to Acosta’s claim for CAT relief.2
DENIED IN PART; DISMISSED IN PART.
2
Additionally, to the extent Acosta makes arguments about the IJ’s credibility finding, whether
his past mistreatment rose to the level of persecution, or whether his proposed particular social
group actually qualified as one, these issues are not before us, because the BIA did not reach
them. Gonzalez, 820 F.3d at 403.
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