USCA11 Case: 22-11909 Document: 20-1 Date Filed: 06/09/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11909
Non-Argument Calendar
____________________
CLAUDIA YOLIBETH PADILLA-MEJIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-340-416
____________________
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2 Opinion of the Court 22-11909
Before JORDAN, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Claudia Padilla-Mejia (“Petitioner”), a native and citizen of
Honduras, petitions for review of the order by the Board of Immi-
gration Appeals (“BIA”) affirming the decision of the Immigration
Judge (“IJ”). The IJ’s decision denied Petitioner’s applications for
asylum, for withholding of removal, and for relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (“CAT”). No reversible
error has been shown; we deny the petition.
I.
Petitioner sought asylum and withholding of removal based
on her alleged past persecution and fear of future persecution by
gang members in Honduras. Petitioner says the gang’s mistreat-
ment was and would be “on account of ” Petitioner’s membership
in two proposed particular social groups: (1) the “Mendoza Padilla
family;” and (2) “as a mother of two male children from Olancho,
Honduras.” Petitioner also applied for relief under CAT.
Before the incidents involved in this case, Petitioner lived in
Olancho, Honduras, with Jose Francisco Mendoza: Petitioner’s
boyfriend and the father of her child. In February 2010, members
of the criminal gang “Maras” shot Mendoza in the shoulder after
Mendoza refused to pay the gang “war taxes.” Petitioner was not
present during the shooting. Mendoza reported the incident to the
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22-11909 Opinion of the Court 3
Honduran police. Sometime later, Mendoza fled to the United
States.
After Mendoza left Honduras, Petitioner began receiving --
through a family member -- threats from people she believed were
members of the Maras gang. Petitioner says the gang members
targeted her as “revenge” because they believed Petitioner was in-
volved in reporting them to the police.
In September 2011, Petitioner fled with her son 1 to Coma-
yagua, Honduras. While living in Comayagua, Petitioner re-
mained unharmed and received no threats, but says she “lived in
fear” that gang members would find her. Petitioner left Honduras
and entered the United States in March 2012. Petitioner’s son
stayed in Honduras with Petitioner’s mother. No one in Peti-
tioner’s family -- including Petitioner’s parents, brother, and son --
was threatened or harmed physically after Petitioner left Hondu-
ras.
Petitioner fears returning to Honduras because she says the
gang members will try to kill her and her son. Although it has been
over a decade since Petitioner left Honduras, Petitioner says the
gangs will continue to target her because they have “dedicat[ed]
themselves to kidnapping and killing people.” According to Peti-
tioner, the Honduran government turns “a blind eye” to gang
1 Petitioner’s oldest son was born in Honduras in July 2010. Petitioner’s sec-
ond son was born in the United States in April 2015.
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4 Opinion of the Court 22-11909
violence and is unable or unwilling to protect its citizens from
criminal gangs due to high levels of corruption.
The IJ denied Petitioner’s applications for relief. 2 The IJ de-
termined that the harm Petitioner suffered in the past did not rise
to the level of persecution. The IJ next concluded that Petitioner
failed to demonstrate a well-founded fear of future persecution on
account of her membership in a particular social group. The IJ also
found no evidence demonstrating that Petitioner more-likely-than-
not would be tortured by, or with the acquiescence of, the Hondu-
ran government.
Petitioner appealed to the BIA. The BIA affirmed the IJ’s
decision. About Petitioner’s application for asylum, the BIA agreed
with the IJ’s determination (1) that Petitioner suffered no past harm
rising to the level of persecution; (2) that Petitioner was targeted
based on the gang’s perception that Petitioner was involved in re-
porting the gang to the police and, thus, Petitioner had not shown
that her connection to the “Mendoza Padilla family” was a central
reason for the claimed past harm or fear of future harm; and (3)
that Petitioner’s proposed social group of “mother of two male
children from Olancho, Honduras” lacked the requisite particular-
ity and social distinction to constitute a cognizable particular social
group under the INA. The BIA also agreed with the IJ’s conclusion
2 The IJ assumed that Petitioner’s asylum application was timely-filed and as-
sumed that Petitioner’s testimony was credible.
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22-11909 Opinion of the Court 5
that Petitioner failed to demonstrate eligibility for withholding of
removal or for CAT relief.
II.
We review only the decision of the BIA, except to the extent
that the BIA adopts expressly the IJ’s decision. See Gonzalez v. U.S.
Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016). Because the BIA
agreed expressly with parts of the IJ’s reasoning in this case, we re-
view the IJ’s decision to the extent of that agreement. See
id.
We review de novo the BIA’s legal conclusions, including
whether a proposed group qualifies as a “particular social group”
under the Immigration and Nationality Act (“INA”). See
id. Alt-
hough our review is de novo, we defer to the BIA’s interpretation of
the phrase “particular social group” if the BIA’s interpretation is
reasonable. See
id. at 404.
We review fact determinations under the “highly deferential
substantial evidence test” whereby we “must affirm the BIA’s deci-
sion if it is ‘supported by reasonable, substantial, and probative ev-
idence on the record considered as a whole.’” Adefemi v. Ashcroft,
386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We “view the rec-
ord evidence in the light most favorable to the agency’s decision
and draw all reasonable inferences in favor of that decision.”
Id. at
1027. To reverse a fact determination, we must conclude “that the
record not only supports reversal, but compels it.” See Mendoza v.
U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003).
An asylum applicant bears the burden of proving statutory
“refugee” status with specific and credible evidence. See 8 U.S.C.
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6 Opinion of the Court 22-11909
§ 1158(b)(1)(B); Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1286-87 (11th
Cir. 2005). A “refugee” means a person unable or unwilling to re-
turn to his country of nationality “because of persecution or a well-
founded fear of persecution on account of ” a protected ground,
including “membership in a particular social group.”
8 U.S.C. §
1101(a)(42)(A).
Substantial evidence supports the IJ’s and the BIA’s determi-
nation that the harm Petitioner suffered in the past -- verbal threats
communicated to Petitioner through a family member -- did not
rise to the level of persecution. We have explained that “persecu-
tion is an extreme concept, requiring more than a few isolated inci-
dents of verbal harassment or intimidation, and that mere harass-
ment does not amount to persecution.” See Sepulveda v. U.S. Att’y
Gen.,
401 F.3d 1226, 1231 (11th Cir. 2005) (quotations omitted) (con-
cluding that phone calls threatening to kill petitioner if she did not
stop her political activity and the bombing of petitioner’s work-
place did not rise to the level of persecution).
Substantial evidence also supports the IJ’s and the BIA’s con-
clusion that Petitioner failed to demonstrate a sufficient nexus be-
tween her mistreatment by gang members and her membership in
the “Mendoza Padilla family.” 3
3 On appeal, Petitioner argues that the IJ erred in relying on Matter of A-B-,
27
I. & N. Dec. 316 (A.G. 2018), vacated, Matter of A-B-,
28 I. & N. Dec. 307 (A.G.
2021). We review the IJ’s decision only to the extent it is adopted by the BIA.
See Gonzalez,
820 F.3d at 403. Because the BIA did not adopt the portions of
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22-11909 Opinion of the Court 7
To satisfy the “on account of ” or “nexus” requirement, an
applicant must demonstrate that a protected ground “was or will
be at least one central reason for” persecution. See
8 U.S.C.
§ 1158(b)(1)(B)(i). “A reason is central if it is ‘essential’ to the moti-
vation of the persecutor” and not merely “incidental, tangential,
superficial, or subordinate to another reason for harm.” Sanchez-
Castro v. U.S. Att’y Gen.,
998 F.3d 1281, 1286 (11th Cir. 2021).
We have distinguished “persecution of a family as a means
to an unrelated end from persecution based on animus against a
family per se.” See id. 1287. “Where a gang targets a family only as
a means to another end, the gang is not acting because of who the
family is; the identity of the family is only incidentally relevant.”
See id.
The record does not compel the conclusion that Petitioner’s
relationship to Mendoza was an “essential” factor motivating the
gang’s targeting of Petitioner. The gang members shot Mendoza
the IJ’s decision discussing Matter of A-B-, Petitioner’s arguments about that
case are not before us on appeal.
Petitioner also contends that she is entitled to a remand based on the BIA’s
reliance on Matter of L-E-A-,
27 I. & N. Dec. 40 (BIA 2017) (“Matter of L-E-A- I”),
vacated in part, 27 I. &. N. Dec. 581 (BIA 2019) (“Matter of L-E-A- II”), vacated,
28 I. & N. Dec. 304 (A.G. 2021) (“Matter of L-E-A- III”). We disagree. To the
extent the BIA cited Matter of L-E-A- I, it was for the general proposition that
“the respondent must show that the family relationship is at least one central
reason for the claimed harm.” That proposition remains good law. See Matter
of L-E-A- II, 27 I. & N. Dec. at 597 (leaving “undisturbed” the BIA’s nexus anal-
ysis); Matter of L-E-A- III, 28 I. & N. Dec. at 305 (declining to address the BIA’s
nexus determination).
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8 Opinion of the Court 22-11909
after Mendoza refused to pay the gang money. The IJ and the BIA
concluded reasonably that the gang members then targeted Peti-
tioner because they believed she was involved in reporting the Feb-
ruary 2010 shooting incident to the police. That Petitioner had a
family relationship to Mendoza was merely incidental.
We also see no reversible error in the IJ’s and the BIA’s deter-
mination that Petitioner’s second proposed group was not cogniza-
ble under the INA. To qualify as a “particular social group” under
the INA, a group must -- among other things -- have sufficient social
distinction, meaning the proposed group is “perceived as a group
by society.” See Matter of M-E-V-G-,
26 I. & N. Dec. 227, 242 (BIA
2014; Matter of W-G-R-,
26 I. & N. Dec. 208, 216 (BIA 2014). Peti-
tioner produced no evidence demonstrating that “mothers with
two male children from Olancho, Honduras” are perceived by
Honduran society as a distinct societal group. Nor has Petitioner
shown that her membership in this proposed group was or would
be a central motivating factor for mistreatment.
The record compels no conclusion that Petitioner would be
targeted for future mistreatment “on account of ” a statutorily-pro-
tected ground. Substantial evidence supports the IJ’s and the BIA’s
determination that Petitioner is unentitled to asylum. Because Pe-
titioner has not satisfied her burden of establishing eligibility for
asylum, she is unable to demonstrate eligibility for withholding of
removal. See Forgue,
401 F.3d at 1288 n.4.
About Petitioner’s application for CAT relief, substantial ev-
idence supports the IJ’s and the BIA’s determination that Petitioner
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22-11909 Opinion of the Court 9
failed to make the requisite showing. To establish eligibility for
CAT relief, an applicant must show “that it is more likely than not
that he or she would be tortured if removed to the proposed coun-
try of removal.” Reyes-Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1242
(11th Cir. 2004). The applicant must also show that the torture
would be inflicted by or with the acquiescence of the removal
country’s government.
Id. “Acquiescence requires that the public
official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.”
Id. (quotation omitted).
Petitioner makes no assertion that she suffered harm or fears
harm inflicted directly by a government official. Nor has Petitioner
shown that the police had prior knowledge of the gang’s criminal
activities -- including the 2010 shooting and the verbal threats to
Petitioner -- and refused to intervene to stop them.
Petitioner presented some evidence of police corruption
within Honduras. The U.S. Department of State’s 2017 Country
Report also shows, however, that the Honduran government has
taken steps to combat police corruption. In particular, the govern-
ment formed the Police Purge Commission, which had purged
4,445 officers from the ranks since its creation in April 2016. This
record does not compel the conclusion that the Honduran govern-
ment would acquiesce to Petitioner’s torture by gang members.
The IJ’s and the BIA’s decision that Petitioner was unentitled
to relief is supported by reasonable, substantial, and probative
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10 Opinion of the Court 22-11909
evidence. Nothing in the law or on this record compels us to re-
verse that decision.
PETITION DENIED.
