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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13991
Non-Argument Calendar
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Agency Nos. AXXX-XX6-495; AXXX-XX6-496
VILMA ISABEL CASTILLO MUNOZ,
ADA GISSELL CASTELLANOS CASTILLO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(October 3, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Vilma Castillo Munoz and her daughter, Ada Castellanos Castillo, petition
for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
denial of their applications for asylum. After careful consideration, we deny the
petition.
I.
Castillo Munoz is a 43-year old native and citizen of Honduras. She married
her husband, Lelis Armando Castellanos Rivera, in 1995. They lived together in
El Progreso, Honduras, along with their daughter, Ada Castellanos Castillo, for a
number of years. Castellanos Rivera began working as a loan shark in 2012. In
2014, he began receiving death threats by phone. However, according to Castillo
Munoz, Castellanos Rivera never informed the police about these threats because a
friend told him the “police would not help him unless he had ‘proof’ of the
threats.” Castellanos Rivera unsuccessfully tried instead to get a tourist visa to
come to the United States.
On August 16, 2014, Castellanos Rivera received a call from a woman
named Adoris Guzman Rodriguez. After their conversation, Castellanos Rivera
left to collect money from her. As soon as Castellanos Rivera left the house,
however, Guzman Rodriguez called two hitmen who had been hired by someone
else to follow and kill him. Fifteen minutes later, the hitmen, Milton Pavon Robles
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and Carlos Martinez Orellana, killed Castellanos Rivera while he was on his way
back home.
Castillo Munoz found out about her husband’s murder shortly after and
immediately went to the scene of the crime. By the time she arrived, the media
had already begun reporting on the murder. Castillo Munoz agreed to be
interviewed and told the reporters her husband went to collect money from
Guzman Rodriguez before he was killed. She also gave a statement to police
officers identifying Guzman Rodriguez as the woman who called Castellanos
Rivera. She then led the officers to Guzman Rodriguez’s home, where they
arrested Guzman Rodriguez on the spot. Pavon Robles was arrested the same day,
and Martinez Orellana the day after.
A few days after the arrests, Castillo Munoz began receiving death threats by
phone. She suspected the callers were family members of the arrested, although
she did not know for certain. The callers told her, “[Y]ou’re going to die, you
fucking whore” and said the “same thing that happened to [her] husband” would
happen to her. Castillo Munoz did not report these threats to the police because
“the Honduran police doesn’t [sic] do anything. They only move and start doing
anything if the people have money and they show up and they’re bribed.” Afraid
for her safety, she moved from Progreso to Santa Cruz of Yojoa, a different part of
Honduras. She stayed in Santa Cruz of Yojoa for five or six months, coming back
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to Progreso only once to testify at the initial hearing against Guzman Rodriguez,
Pavon Robles, and Martinez Orellana for the murder of her husband.
When she appeared to testify at this hearing, Castillo Munoz was “nervous”
and “fear[ed] for her life.” As a result, the judge and prosecutor at her initial
hearing allowed her to testify anonymously. But the anonymity did little to mask
her identity, given the substance of her testimony. At the hearing, the prosecutor
told the judge that a man in the United States had ordered Castellanos Rivera
killed. The unidentified man contacted Guzman Rodriguez to serve as bait for the
murder and paid the two hitmen several thousand lempiras to carry out the killing.
Most troubling for Castillo Munoz, the assassins saw her interview on television
with reporters and made plans for what to do if officials came to investigate.
According to Castillo Munoz, both the prosecutor and a police officer told her to
leave Honduras because it was no longer safe for her.
Castillo Munoz stayed in Honduras. After Castillo Munoz testified and
returned to Santa Cruz of Yojoa, the threats continued. The calls only stopped
after she changed numbers. She was later contacted by a neighbor who told her
that a black car drove past Castillo Munoz’s old home and the people inside the car
asked for her by name. Terrified the callers would make good on their threats, she
continued moving around Honduras, eventually fleeing to Mexico and then the
United States with her daughter in 2016. Two of her sons and one other daughter
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stayed behind in Honduras to live with her brother because she could not afford to
take them with her.
Castillo Munoz successfully passed a credible fear assessment and applied
for asylum, withholding of removal, Convention Against Torture (“CAT”)
protection, and humanitarian asylum. Her daughter, Ada Castillo, was added as a
derivative beneficiary of her applications. 1 Prior to Castillo Munoz’s merits
hearing, which was scheduled for September 13, 2017, she timely submitted a
prehearing brief outlining her arguments, a personal declaration, two expert
declarations, and a number of supporting documents. Among these exhibits was
an affidavit from an investigator declaring that all three defendants arrested for the
murder had been convicted and sentenced. The affidavit also included information
that Castillo Munoz’s statements to the police and at the initial hearing were
admitted at trial.
Castillo Munoz and two experts testified at her merits hearing. Castillo
Munoz testified about the circumstances surrounding her husband’s murder and the
threats she received after. One expert testified about sexual violence in Honduras
in support of Castillo Munoz’s application for humanitarian asylum. The other
expert, Dr. Mark Ungar, testified about Honduras’s policing practices and attempts
at criminal reform. Dr. Ungar testified that gangs in Honduras “pay bribes to
1
This opinion will refer to both applications as Castillo Munoz’s application.
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different officials who are involved” and “one of the major challenges in
[Honduras] is a lot of the police officials and other officials involved in the
security system collaborate with the gangs.” As he described it, either the officers
would “proactively collaborat[e] with [the gangs] or . . . look the other way to
criminal activities.” He also testified that based on his review of Castillo Munoz’s
materials that it appeared she and her husband were the victims of organized crime.
Aside from the corruption issues, Dr. Ungar testified the Honduran police
were “not effective . . . because of the lack of resources and a lack of training.” He
explained officers were given guns without training and had no idea “how to do
[an] investigation,” so “only about three percent of murders actually get to trial and
conviction.” He also testified that although the Honduran government had
programs “on paper” to protect witnesses, “in practice, they don’t function at all.”
According to Dr. Ungar, “[a] lot of assassinations are carried out from behind the
prisons.” However, he also acknowledged the Honduran government recently
“created two . . . very strong and well-funded agencies in the direction of police
investigations,” which were showing signs of success.
At the conclusion of the hearing, the immigration judge (“IJ”) denied
Castillo Munoz all relief and ordered her removed to Honduras. As relevant here,
the IJ found that although Castillo Munoz was credible, she failed to show the
Honduran government was either unwilling or unable to control the people
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threatening her. The IJ relied heavily on the fact that police officers successfully
investigated the murder of Castillo Munoz’s husband and Castillo Munoz never
notified the officers of the threats she received.
Castillo Munoz appealed the decision to the BIA, which dismissed the
appeal. The BIA found she failed to establish a well-founded fear of future
persecution because “the record evidence did not indicate that the police would be
unwilling or unable to protect [her] if they knew about the death threats.” To
support its decision, the BIA, like the IJ, relied on the fact that “[t]he police
investigation of the murder and subsequent trial resulted in convictions against
three individuals involved in the murder.” The BIA also rejected Castillo Munoz’s
argument that the IJ failed to review all of the record evidence.
Castillo Munoz timely petitions for review.
II.
This Court reviews de novo “an assertion that the agency failed to give
reasoned consideration to an issue.” Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799
(11th Cir. 2016). This Court reviews the agency’s factual findings for substantial
evidence, meaning we reverse “only if the evidence compels” a contrary finding.
Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1230–31 (11th Cir. 2006) (per curiam)
(quotation marks omitted).
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III.
Castillo Munoz first argues the BIA erred in rejecting her reasoned
consideration claim. She contends the record reflects the IJ failed to read her
prehearing briefing or review the evidence in the record before denying her
application for asylum. 2 We are not persuaded.
As Castillo Munoz concedes, the IJ stated he “considered all of the other
documents that have been filed in this case, including the respondent’s brief in
support of her application” before denying her application for asylum. Although a
blanket statement may not, in some circumstances, be enough to demonstrate
reasoned consideration of the evidence, that is not the case here. There is no
evidence the IJ did not read the prehearing briefing before making his decision.
Indeed, the IJ announced at the beginning of Castillo Munoz’s hearing he was
“familiar” with the brief and would “read it.”
Neither are we persuaded by Castillo Munoz’s argument that the IJ’s
frequent clarifying questions meant he never reviewed the materials she submitted.
To the contrary, it appears the IJ wished to make sure he understood the record
2
Castillo Munoz does not challenge on appeal the agency’s denial of her applications for
withholding of removal, CAT protection, or humanitarian asylum.
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correctly. This is no more and no less than what he was required to do. See 8
U.S.C. § 1229a(b)(1).
At bottom, an agency displays a lack of reasoned consideration when its
decisions cast into doubt whether the agency truly “heard and thought” rather than
“merely reacted.” Tan v. U.S. Att’y Gen.,
446 F.3d 1369, 1374 (11th Cir. 2006)
(quotation marks omitted). The record indicates the IJ considered Castillo
Munoz’s claims and evidence in full. We therefore deny her petition for review as
to this claim.
IV.
Castillo Munoz next challenges the BIA’s finding that she was unable to
show the Honduran government would be unable or unwilling to control her
persecutors. This argument, too, fails to persuade.
“An applicant for asylum who alleges persecution by a private actor must
prove that his home country is unable or unwilling to protect him.” Ayala v. U.S.
Att’y Gen.,
605 F.3d 941, 950 (11th Cir. 2010). Castillo Munoz argues the record
compels the finding that the Honduran government would be unwilling or unable
to protect her from the unidentified individuals who have threatened her. We
cannot agree.
The record contains conflicting accounts on the ability of Honduran officials
and police officers to protect victims or witnesses of crime. On the one hand, the
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police successfully apprehended three of Castillo Munoz’s husband’s murderers,
all of whom were eventually convicted. Dr. Ungar also testified the Honduran
government was making inroads on improving the quality of police investigations.
On the other hand, both a prosecutor and a police officer told Castillo Munoz she
was no longer safe in Honduras, and there was expert testimony that the Honduran
government’s programs to protect witnesses were functionally nonexistent.
Unfortunately for Castillo Munoz, “the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings.” Sanchez Jimenez v. U.S. Att’y Gen.,
492 F.3d 1223,
1230 (11th Cir. 2007) (quotation marks omitted). We recognize the Honduran
government’s ability to arrest and prosecute the individuals who murdered Castillo
Munoz’s husband does not go directly to its ability to preemptively protect Castillo
Munoz from harm. But neither is it irrelevant. Castillo Munoz requested and
received anonymity from prosecutors and worked closely with the police officers
investigating the murder. Beyond that, there was evidence the Honduran
government is investing additional resources in improving the quality of law
enforcement investigations. It was reasonable on this record to find, as the BIA
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and the IJ did, that the Honduran government would have taken the threats against
Castillo Munoz seriously if only it had known about them.3
PETITION DENIED.
3
We do not mean to suggest an asylum applicant must always go to law enforcement first
to qualify for asylum. But where, as here, the applicant cites general concerns about bribery as
her reason for not seeking out government protection, the agency’s decision will ordinarily
survive substantial evidence review. See Lopez v. U.S. Att’y Gen.,
504 F.3d 1341, 1345 (11th
Cir. 2007) (“Although the failure to report persecution to local government authorities is
generally fatal to an asylum claim, . . . [the failure can] be excused where the petitioner
convincingly demonstrates that those authorities would have been unable or unwilling to protect
her, and for that reason she could not rely on them.”); see also Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1073–75 (9th Cir. 2017) (en banc) (concluding the record compelled a finding
that the government was unwilling or unable to protect the petitioner where the petitioner
testified the police “laughed” and didn’t do anything when his friends reported being raped and
there was significant documentary evidence that Mexican officials participated in persecuting
gay men like the petitioner).
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