Selvin Martinez-Almendares v. Attorney General United States ( 2018 )


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  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 17-2099
    _____________
    SELVIN JOSUE MARTINEZ-ALMENDARES,
    Petitioner
    v.
    ATTORNEY GENERAL UNITED
    STATES OF AMERICA,
    Respondent
    ____________
    On Petition for Review of an Order of the Board of Immigration Appeals
    (Agency No. A208-542-211)
    Immigration Judge: Honorable Silvia A. Arellano
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    April 12, 2018
    Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge ∗.
    (Opinion Filed: May 2, 2018)
    ____________
    OPINION †
    ____________
    ∗
    The Honorable Susan R. Bolton, Senior United States District Judge for the District of
    Arizona, 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.
    CHAGARES, Circuit Judge.
    Selvin Martinez-Almendares (“Martinez-Almendares”) petitions for review of his
    order of removal entered by the Board of Immigration Appeals (“BIA”). The BIA
    affirmed the decision of the Immigration Judge (“IJ”) denying Martinez-Almendares’
    petition for asylum, withholding of removal, and relief under the Convention Against
    Torture (the “CAT”). We will deny his petition for review.
    I.
    Because we write solely for the parties, we will only briefly summarize the
    essential facts. Martinez-Almendares is a native and citizen of Honduras. He is a gay
    man, although he has largely kept his sexual identity secret. Before he came to the
    United States, he told only two friends in Honduras, both gay men, about his sexual
    identity. He knew other gay men who lived openly and were not persecuted for their
    sexual identities. The only instance he could recall of a gay man being mistreated
    because of his sexual identity was when a private citizen punched an acquaintance named
    Arturo after Arturo made an unwelcome advance at a bar. Martinez-Almendares
    believed that others questioned his sexual identity due to his behavior and mannerisms.
    He never told his family that he was gay because he thought that, if he did, his family
    might not accept him and that his father might hit him.
    Although Martinez-Almendares testified that he had seen television reports
    showing gay men who were targeted for violent crimes by gangs, he was not aware of the
    details of those incidents, nor was he personally aware of any such incidents. He testified
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    he believed the police could not protect gay men because they were unable to protect any
    Honduran citizens from gang violence.
    In August 2015, Martinez-Almendares was working as a clerk at a transportation
    company when a gang member entered the building, attacked Martinez-Almendares, and
    stole both his personal property and money from the cash registers. The gang member
    told Martinez-Almendares that the gang member would kill him if he called the police.
    Martinez-Almendares filed a police report after the robbery. Later, the gang attempted to
    extort Martinez-Almendares and his employer. At no point during any of these
    interactions did any gang member or police officer mention Martinez-Almendares’
    sexuality.
    On October 8, 2015, Martinez-Almendares entered the United States and was
    taken into custody by Customs and Border Patrol agents. He appeared before an IJ in
    Elizabeth, New Jersey, who sustained the Department of Homeland Security’s charge of
    removability.
    Martinez-Almendares applied for asylum, withholding of removal, and protection
    under the CAT. The IJ considered testimony from Martinez-Almendares, documentary
    evidence, and reports on Honduras’ treatment of gay people and the country’s struggles
    with violence generally. The IJ held that Martinez-Almendares was not eligible for
    asylum because, although his sexual identity placed him within a protected social group,
    he had not established that he was likely to be persecuted on that basis. The IJ considered
    the August 2015 incident to be “criminal violence motivated by greed,” rather than
    persecution motivated by Martinez-Almendares’ sexual identity. Administrative Record
    3
    (“AR”) 37. The IJ noted that there was no reason to believe that the gang which carried
    out the attack would become aware of Martinez-Almendares’ sexual identity, and thus no
    reason to believe it would persecute him based on that identity. In the alternative, the IJ
    held that Martinez-Almendares had failed to establish he could not avoid persecution by
    relocating within Honduras, because he had only suffered gang violence in the city where
    he worked, and had not suffered the same violence in his hometown. The IJ further held
    that, because Martinez-Almendares had not established eligibility for asylum, he also
    could not meet the stricter standards for withholding of removal, and that Martinez-
    Almendares was ineligible for protection under the CAT.
    Martinez-Almendares appealed to the BIA, which affirmed. It added to the IJ’s
    analysis by noting that his mother was a close friend with a gay man who had not been
    persecuted. Martinez-Almendares timely petitioned for review of the BIA’s decision.
    II.
    In his petition for review, Martinez-Almendares argues that the IJ and BIA erred
    by determining (1) that he lacked a well-founded fear of future persecution, (2) that his
    sexuality would not become known, and (3) that he had failed to show he could not
    reasonably relocate within Honduras. We have jurisdiction to review final orders of
    removal. 8 U.S.C. § 1252(a).
    We exercise de novo review over the BIA’s legal determinations. Castillo v. Att’y
    Gen., 
    729 F.3d 296
    , 301–02 (3d Cir. 2013); Valdiviezo-Galdamez v. Att’y Gen., 
    663 F.3d 582
    , 590 (3d Cir. 2011); Francois v. Gonzales, 
    448 F.3d 645
    , 648 (3d Cir. 2006).
    The BIA's determinations regarding the likelihood of future persecution are reviewed for
    4
    substantial evidence. See Wang v. Ashcroft, 
    368 F.3d 347
    , 349–50 (3d Cir. 2004);
    Abdille v. Ashcroft, 
    242 F.3d 477
    , 483–84 (3d Cir. 2001). Under this standard, “the
    BIA's finding[s] must be upheld unless the evidence not only supports a contrary
    conclusion, but compels it.” 
    Abdille, 242 F.3d at 483
    –84.
    The Attorney General may grant asylum, or withholding of removal, to an alien in
    removal proceedings who establishes he is a “refugee” under the Immigration and
    Nationality Act. 8 U.S.C. § 1158(a). An applicant for asylum bears the burden of
    proving “that he or she is a refugee as defined by” 8 U.S.C. § 1101(a)(42)(A). 8 C.F.R. §
    208.13. A person may qualify as a refugee if “he or she has suffered past persecution or
    [if] he or she has a well-founded fear of future persecution.” 8 C.F.R. § 208.13(b).
    Martinez-Almendares argues only that he has a well-founded fear of future persecution.
    To demonstrate a well-founded fear of future persecution, an applicant must prove
    (1) “a fear of persecution . . . on account of” protected characteristics, such as “race,
    religion, nationality, membership in a particular social group, or political opinion”; (2) “a
    reasonable possibility of suffering such persecution if he . . . were to return to that
    country”; and (3) that he “is unable or unwilling to return to, or avail himself of the
    protection of, that country because of such fear.” 8 C.F.R. § 208.13(b)(2)(i); see Shardar
    v. Att’y Gen., 
    503 F.3d 308
    , 313 (3d Cir. 2007). Not all treatment that is “unfair, unjust,
    or even unlawful or unconstitutional” will qualify as persecution, only “threats to life,
    confinement, torture, and economic restrictions so severe that they constitute a threat to
    life or freedom.” Camara v. Att’y Gen., 
    580 F.3d 196
    , 202 (3d Cir. 2009). An applicant
    must have a subjective fear of future persecution and that fear must be objectively well-
    5
    founded. Valdiviezo-Galdamez v. Att’y Gen., 663 F3d 582, 590–91 (3d Cir. 2011). The
    feared acts of persecution must be “committed by the government or forces the
    government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 592 (3d Cir. 2003) (quotation omitted).
    Martinez-Almendares is a member of a protected social group because he is a gay
    man. An applicant must show that his protected characteristic “will be at least one
    central reason for persecuting the applicant,” should he be removed. 8 U.S.C. §
    1158(b)(1)(B)(i). He must either show “a reasonable possibility that he . . . would be
    singled out individually for persecution” or that, in his home country, there exists “a
    pattern or practice . . . of persecution of a group of persons similarly situated” in terms of
    their protected characteristics. 8 C.F.R. § 1208.13 (b)(2)(iii). An applicant must also
    show that he could not “avoid persecution by relocating to another part of the applicant’s
    country . . . if under all the circumstances it would be reasonable to expect the applicant
    to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).
    Martinez-Almendares argues that the BIA erred by discounting the evidence of a
    “pattern or practice of harm against LGBTI Hondurans by both the government and non-
    government actors that the government cannot or will not control.” Martinez-
    Almendares Br. 2. He argues that this evidence shows that gay men are systematically
    persecuted throughout Honduras, and thus Martinez-Almendares would be subjected to
    persecution upon removal that he could not avoid by relocating within Honduras. The IJ
    and BIA both considered this evidence and both disagreed. Martinez-Almendares
    submitted evidence showing that Honduras struggles with violence and corruption and
    6
    has a history of discrimination against LGBT individuals. His evidence included a
    troubling statistic that 92% of crimes against LGBT individuals went unsolved due to
    inadequate investigation, but it did not compare that statistic to the rate at which crimes
    against the general population were solved or investigated. Other facts showed that
    Honduras had recently added sexual identity as a protected class under anti-
    discrimination laws, and that individuals have been convicted for crimes targeting LGBT
    individuals. Martinez-Almendares testified that although he had seen news reports of
    crimes committed against gay men by gangs, the gay men he knew faced no persecution
    even when they lived openly. Thus, the BIA had substantial evidence to conclude
    Martinez-Almendares had failed to establish that gay men were systematically persecuted
    throughout Honduras.
    Next, Martinez-Almendares argues that the BIA erred by holding his sexual
    identity was unlikely to be revealed upon a return to Honduras. This, he argues, would
    impermissibly force him to conceal his identity. See Fatin v. I.N.S., 
    12 F.3d 1233
    , 1242
    (3d Cir. 1993) (“[W]e will assume for the sake of argument that the concept of
    persecution is broad enough to include governmental measures that compel an individual
    to engage in conduct that is not painful or harmful but is abhorrent to that individual’s
    deepest beliefs.”). This argument mischaracterizes the BIA’s decision, which “did not
    require [Martinez-Almendares] to conceal his identity.” Appendix (“App.”) 5. Rather,
    the BIA concluded that Martinez-Almendares failed to demonstrate that gang members or
    other persecutors were likely to learn his sexual identity. Without learning his sexual
    identity, they could not persecute him on that basis. The evidence showed that he was
    7
    able to keep his sexual identity largely a secret in Honduras and that other gay men lived
    openly without persecution. Moreover, Martinez-Almendares argued his persecution
    would take the form of gang violence, and he presented no evidence that gang members
    would learn of his sexual identity. We need not decide whether an asylum applicant can
    be forced to hide his sexual identity to avoid persecution, because the BIA here did not
    do so; it merely concluded that Martinez-Almendares had failed to demonstrate that he
    was likely to be persecuted on the basis of his sexual identity when he had not shown that
    his would-be persecutors would know of his sexual identity. It had a substantial factual
    basis to make this determination.
    Finally, Martinez-Almendares argues that the BIA erred by holding that he could
    reasonably relocate within Honduras by returning to his hometown for two reasons.
    First, he argues that the BIA failed to consider his fear of his male family members.
    Martinez-Almendares testified that his father “might hit [him] very hard” if he learned
    that Martinez-Almendares was gay, AR 357, and that he was worried his family would
    not “accept the way I am” if they learned he was gay. AR 118. This feared mistreatment
    by his family, while “unfair” or “unjust,” is not sufficiently severe that it would qualify as
    persecution. 
    Camara, 508 F.3d at 202
    . Even if he could establish that his father would
    commit violent acts amounting to either a threat to his life or torture, Martinez-
    Almendares does not argue that this domestic mistreatment would be committed by the
    government or by forces the government was unable or unwilling to control. See
    
    Abdulrahman, 330 F.3d at 592
    . In the alternative, Martinez-Almendares produced no
    8
    evidence showing why he could not relocate to his hometown — where the only gay man
    he knew lived openly without persecution — but live separately from his father.
    Second, Martinez-Almendares argues that the BIA failed to consider his evidence
    showing that LGBT individuals faced discrimination throughout Honduras such that
    relocation anywhere in Honduras would not alleviate his well-founded fear of
    persecution. Martinez-Almendares himself testified he knew openly gay men, including
    one who lived in his hometown, and that these men were not persecuted for their
    sexuality except for a single instance of a fistfight with a private citizen in a bar.
    Although Martinez-Almendares points to troubling evidence showing unjust conditions
    throughout Honduras, in light of his conflicting testimony we cannot say that the BIA
    lacked substantial evidence for its determination.
    III.
    For the foregoing reasons, we will deny the petition for review.
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