Rosa Maria Juan-Francisco v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11854
Non-Argument Calendar
________________________
Agency No. A202-070-129
ROSA MARIA JUAN-FRANCISCO,
YENI L. DIEGO JUAN,
Petitioner - Appellants,
versus
U.S. ATTORNEY GENERAL,
Respondent - Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 5, 2019)
Before WILLIAM PRYOR, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Rosa Maria Juan-Francisco and her daughter, Yeni Diego-Juan, as a
derivative beneficiary, seek review of a final order by the Board of Immigration
Appeals. The BIA affirmed the Immigration Judge’s denial of Ms. Juan-Francisco’s
claims for her application for asylum and withholding of removal. Ms. Juan-
Francisco argues the BIA erred in concluding (1) that she did not suffer harm rising
to the level of past persecution; (2) that she failed to establish she was persecuted
because of her membership in a particular social group; and (3) that she failed to
meet her burden to show she could not reasonably relocate within her home country
of Guatemala. Because we agree with the BIA’s analysis, we affirm.
I
Ms. Juan-Francisco and her daughter are natives and citizens of Guatemala.
In 2015, they entered the United States without inspection, and in 2016 they became
subject to removal proceedings by the Department of Homeland Security. At a
master calendar hearing on June 8, 2016, the IJ found each of them was removable
as charged. Ms. Juan-Francisco timely filed an application for asylum and
withholding of removal based on her race, political opinion, or membership in a
particular social group, and for protection under the Convention Against Torture.
Her attorney identified her particular social group as indigenous Guatemalan women
who are threatened into forced relationships. In support of her application, Ms. Juan-
Francisco submitted a psychological report and country condition documents.
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At a 2017 hearing regarding her claims, Ms. Juan-Francisco testified that in
May of 2014, a man in Guatemala harassed her verbally and told her she had to be
his wife. She did not recognize the man and was unable to learn his identity. She
testified that when she encountered the same man in July of 2014, he held her hand
and again told her she had to be his wife. In March of 2015, the man threatened to
kill Ms. Juan-Francisco if she did not agree to be his wife. He somehow obtained
Ms. Juan-Francisco’s telephone number and began to call her as many as three times
a day. She testified that she fears the man will kill her if she returns to Guatemala.
The IJ concluded that Ms. Juan-Francisco did not establish her eligibility for
asylum. The IJ found that Ms. Juan-Francisco was harassed and threatened by the
unidentified man, and believed her to be afraid of returning to Guatemala because
of the encounters, but the incidents did not rise to the level of persecution. The IJ
also found that Ms. Juan-Francisco had not established that the man targeted her
because of her race or political opinion, or that she had identified a cognizable
particular social group of which she was a member. Finally, the IJ ruled that Ms.
Juan-Francisco had not established that she was unable to reasonably relocate to
avoid further problems with the man.
The BIA affirmed the IJ’s decision, agreeing that the harm suffered by Ms.
Juan-Francisco did not rise to the level of past persecution and that she had not
established that she had or would be harmed because of a protected ground. The
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BIA explained that, although the unidentified man was not required to expressly
state the reason for his threats, there was no evidence presented regarding his alleged
motives and they could not be inferred from country reports regarding the state of
affairs in Guatemala. The BIA also agreed with the IJ that Ms. Juan-Francisco had
not established that she could not reasonably relocate within Guatemala.
II
We review the decision of the BIA and the decision of the IJ to the extent the
BIA expressly adopted or explicitly agreed with the it. See Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010) (citing Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009)). We review legal determinations de novo and
administrative findings of fact for substantial evidence. See id. (citation omitted).
The substantial evidence test is highly deferential and requires us to affirm an agency
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)). “[T]he mere fact that the record may support a contrary
conclusion is not enough to justify a reversal of the administrative findings,” which
should occur “only when the record compels a reversal.” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004).
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III
The INA authorizes the Attorney General to grant asylum to any alien
determined to be a “refugee” as defined by the statute. See 8 U.S.C § 1158(b)(1)(A).
A “refugee” is “one who is unable or unwilling to return to his or her home 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.”
Id. § 1101(a)(42)(A). To make out an asylum claim, an applicant must establish
either past persecution or a well-founded fear of future persecution based on one of
these grounds. See Sama v. U.S. Att’y Gen., 887 F.3d 1225, 1231 (11th Cir. 2018).
In either case, the applicant must show the persecution is by the government or by
non-government groups that the government cannot control. See Ayala, 605 F.3d at
948 (citing Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006)). An alien
who has not established past persecution has the burden of showing that it would not
be reasonable to relocate to another part of the home country to avoid persecution,
unless persecution is by the government or is government sponsored. See Arboleda
v. U.S. Att’y Gen., 434 F.3d 1220, 1223 (11th Cir. 2006) (citing 8 C.F.R.
§ 208.16(b)(3)(i)).
We address only Ms. Juan-Francisco’s claims regarding (a) the nexus between
her alleged persecution and protected grounds and (b) her opportunities for
relocation within Guatemala, finding them to be dispositive.
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A
The INA “makes motive critical.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483
(1992). Asylum applicants must establish a nexus between one of the protected
grounds and the past persecution or well-founded fear of future persecution in order
to lay out a claim. See Sama, 887 F.3d at 1231. Because the nexus element is
essential to both past persecution and a well-founded fear of future persecution
claims, we address them both together.
Ms. Juan-Francisco’s application must be denied because she has failed to
show her alleged persecutor was or will be motivated to harm her on account of her
race, political opinion, or membership in a particular cognizable social group.
According to Ms. Juan-Francisco’s testimony at the hearing, the man’s comments
appear limited to saying that he wanted her to be his wife and threatening to kill her
if she did not agree to become his wife. Critically, there is no indication that he
made any references to the protected grounds listed in her application, and Ms. Juan-
Francisco stated she did not know, and the man did not say, why he chose to talk to
and focus on her. She also did not know whether he talked to any other women in a
similar way and testified that she had never belonged to any political group. This
testimony does not say or suggest anything about the man’s motives. As a result, it
does not compel a reasonable factfinder to conclude that the requisite persecution or
fear of persecution because of a protected ground existed.
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Ms. Juan-Francisco’s only apparent evidence that she was persecuted because
of her race, political opinion, or membership in a particular social group comes in
the form of country condition reports. See Pet’r’s Br. 4. Ms. Juan-Francisco asserts
these materials show that the Maya indigenous group to which she belongs is unique
and operates outside of the Guatemalan government and law enforcement, and that
women in that community are particularly vulnerable to mistreatment. See id. at 5.
The materials speak of the high levels of violence against women and of violent
conditions in Guatemala generally. They also cover studies related to the violent
and unfair treatment of indigenous women and girls around the world.
Ms. Juan-Francisco was not required to point to explicit statements or
otherwise provide direct proof about the man’s motives in order to demonstrate that
she was or will be targeted because of a protected ground. See I.N.S. v. Elias-
Zacarias, 502 U.S. at 483. But on this record the country reports and articles are not
enough.
General lawlessness or discrimination within a particular region or
community as described in a country report does not compel a finding that that an
applicant was or will be targeted on the basis of a protected ground. See Mazariegos
v. U.S. Att’y Gen., 241 F.3d 1320, 1328 (11th Cir. 2001) (noting that, although a
report identified acts of violence and terrorism in Guatemala’s civil war, eligibility
for asylum does not extend “to anyone who fears the general danger that inevitably
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accompanies political ferment and factional strife”) (citation and internal quotation
marks omitted). See also Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (finding
that “[m]ere generalized lawlessness and violence between diverse populations . . .
generally is not sufficient” to grant asylum) (citation omitted; alterations added).
Country reports “cannot substitute for an analysis of the unique facts of each
applicant’s case.” Imelda v. U.S. Att’y Gen., 611 F.3d 724, 729 (11th Cir. 2010)
(citation omitted) (discussing use of country reports in the context of determining
changed country conditions). And here, Ms. Juan-Francisco has not demonstrated
that she was or will be singled out for persecution on account of a protected ground.
See Ruiz, 440 F.3d at 1259 (concluding that evidence in a country report did not
compel reversal of a petition’s denial because the petitioners did not demonstrate
they would be singled out for persecution); Sepulveda v. U.S. Att'y Gen., 401 F.3d
1226, 1231–32 & 1232 n.7 (11th Cir. 2005) (determining that an applicant’s failure
to show that she will be singled out for persecution was fatal to asylum claim where
the applicant relied on country reports of generalized violence). Considered together
with Ms. Juan-Francisco’s testimony that she did not know why the man targeted
her, the country condition evidence is not so compelling that a reasonable factfinder
would have to conclude the requisite past persecution or fear of persecution on
account of a protected ground existed.
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B
Even if Ms. Juan-Francisco were able to successfully establish her well-
founded fear of future persecution, an applicant who has not established past
persecution and seeks asylum on account of future persecution bears the burden of
showing that it would not be reasonable for her to relocate, unless the persecution is
by the government or is government sponsored. See Arboleda, 434 F.3d at 1223
(citing 8 C.F.R. § 1208.13(b)(3)(i)). The applicable regulations identify several
considerations that are relevant to the reasonableness determination, including the
possibility of serious harm in the place of suggested relocation; ongoing civil strife
within the country; and social and cultural constraints, such as gender and social and
familial ties. See id.
Ms. Juan-Francisco testified that she could not live anywhere else in
Guatemala and had to stay in her village. She also stated that neither she nor her
husband had any relatives or contacts outside of her town in Guatemala. Her brief
asserts that her village was in a portion of Guatemala that is “essentially a separate
state,” making relocation impossible. Pet’r’s Br. 6.
Ms. Juan-Francisco’s lack of contacts outside of her village provides some
support for the contention that relocation would not be reasonable. But reversing a
factual finding by the BIA requires not only that the evidence supports a contrary
conclusion, but that it compels one. See Farquharson v. U.S. Att’y Gen., 246 F.3d
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1317, 1320 (11th Cir. 2001) (citation omitted). Ms. Juan-Francisco provides no
other evidence regarding the difficulty or unreasonableness of relocation.
Additionally, the fact that she alleges a fear of persecution by a single private
person—not a government group or non-governmental organization with a presence
in other parts of Guatemala—arguably cuts against the notion that relocation would
be unreasonable. Cf. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236–38
(11th Cir. 2007) (remanding to the IJ for further review on relocation question where,
among other things, the IJ did not appear to consider country reports regarding the
guerrilla group FARC’s violent activities and extensive presence throughout
Colombia). Given these considerations, Ms. Juan-Francisco’s testimony is
insufficient to compel a finding that it was unreasonable for her to pursue relocation
within Guatemala before seeking resettlement in the United States.
Because we find that there is substantial evidence regarding Ms. Juan-
Francisco’s inability to connect her alleged persecution to a protected ground and to
demonstrate relocation within Guatemala is unreasonable, we do not address her
argument that the man’s treatment amounted to persecution.
IV
We DENY Ms. Juan-Francisco’s petition for review.
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