Jenny Karina Alvarez-Erazo v. U.S. Attorney General

Case: 17-15618 Date Filed: 12/20/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15618
Non-Argument Calendar
________________________
Agency No. A202-072-118
JENNY KARINA ALVAREZ-ERAZO,
ANI ALEXANDRA SANTOS-ALVAREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 20, 2018)
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-15618 Date Filed: 12/20/2018 Page: 2 of 7
Jenny Karina Alvarez Erazo, and her daughter, Ani Alexandra Santos
Alvarez, petition for review of the Board of Immigration Appeals’s (“BIA”) final
order affirming the Immigration Judge’s (“IJ”) denial of Alvarez Erazo’s
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). The IJ and BIA
concluded that Alvarez Erazo was not credible, and, alternatively, had not
otherwise established eligibility for asylum, withholding of removal or CAT relief.
I.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Lyashchynska v. U.S. Att’y Gen., 676 F.3d
962, 966-67 (11th Cir. 2012). When the BIA explicitly agrees with the findings of
the IJ, we will review the decision of both the BIA and the IJ as to those issues.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). If the BIA declines
to address an IJ’s alternative basis for a conclusion, the alternative basis is not an
issue before us. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1220 n.2 (11th Cir.
2006).
Here, the BIA did not adopt the IJ’s decision in full. Rather, the BIA agreed
with the IJ’s credibility determination on certain grounds and the alternative
asylum eligibility determination on certain grounds, but also held, even if Alvarez
2
Case: 17-15618 Date Filed: 12/20/2018 Page: 3 of 7
Erazo’s testimony was credible, her application for asylum, withholding of
removal, and CAT relief should be denied for the alternative reasons found by the
IJ. Thus, we review only the BIA’s decision except insofar as it agreed with the
IJ’s findings that: (1) Alvarez Erazo did not show eligibility for asylum because
she did not show that she was persecuted or had a reasonably objective fear of
future persecution; and (2) Alvarez Erazo did not show eligibility for withholding
of removal or CAT relief. Because we agree with the BIA that Alvarez Erazo
failed to show eligibility for asylum, withholding of removal, or CAT relief, we
decline to address its credibility finding and assume arguendo that she was
credible.
We review factual determinations under the substantial-evidence test. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1254-55 (11th Cir. 2006). We must affirm the
decision if it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Id. We view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision. Id. at 1255. Accordingly, for us to conclude that a finding of fact
should be reversed, we must determine that the record compels reversal. Id.
An applicant for asylum must meet the Immigration and Nationality Act’s
(“INA”) definition of a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The
definition of “refugee” includes:
3
Case: 17-15618 Date Filed: 12/20/2018 Page: 4 of 7
any person who is outside any country of such person’s nationality . . .
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). Thus, to meet the definition of a
refugee, the applicant must, with specific and credible evidence, demonstrate:
(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. Ruiz, 440 F.3d at
1257.
An applicant’s testimony, if credible, may be sufficient to sustain his burden
of proof, without corroborating evidence. Id. at 1255. Conversely, if the applicant
relies solely on his testimony, an adverse-credibility determination may alone be
sufficient to support the denial of an application. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005). However, if the applicant produces other
evidence of persecution, the IJ must consider that evidence, and may not rely
solely on an adverse-credibility determination. Id.
To meet the definition of a refugee, the applicant must, with specific and
credible evidence, demonstrate (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. Ruiz, 440 F.3d at 1257. To establish asylum based on past
persecution, the applicant must prove (1) that she was persecuted, and (2) that the
4
Case: 17-15618 Date Filed: 12/20/2018 Page: 5 of 7
persecution was on account of a protected ground. Silva v. U.S. Att’y Gen., 448
F.3d 1229, 1236 (11th Cir. 2006). We have indicated that persecution is an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation, and mere harassment does not amount to persecution. Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
A well-founded fear may be established by showing (1) past persecution that
creates a presumption of a “well-founded fear” of future persecution, (2) a
reasonable possibility of personal persecution that cannot be avoided by relocating
within the subject country, or (3) a pattern or practice in the subject country of
persecuting members of a statutorily defined group of which the alien is a part. 8
C.F.R § 208.13(b)(1), (2), (3)(i). To establish eligibility for asylum based on a
well-founded fear of future persecution, the applicant must prove (1) a subjectively
genuine and objectively reasonable fear of persecution that is (2) on account of a
protected ground. Silva, 448 F.3d at 1236.
To obtain withholding of removal, an alien must show past persecution or a
clear probability of future persecution on account of a protected ground. Tan v.
U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). In other words, the alien
must show that it is more likely than not he or she will be persecuted, which is a
more stringent standard than the well-founded fear standard for asylum. Id.
5
Case: 17-15618 Date Filed: 12/20/2018 Page: 6 of 7
Under the CAT, the applicant for relief bears the burden of proving that it is
more likely than not that she would be tortured if removed to the proposed country
of removal. 8 C.F.R. § 208.16(c). “Torture” is defined as an act instigated by or
with the consent of a public official that intentionally inflicts severe pain or
suffering for any reason based on discrimination of any kind. Id. § 208.18(a)(1).
If an applicant fails to establish a claim of asylum on the merits, she is generally
precluded from establishing eligibility for withholding of removal or CAT relief.
Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001).
The record does not compel reversal of the BIA and IJ’s determination that
Alvarez Erazo did not establish eligibility for asylum. Substantial evidence
supports the IJ and BIA’s determination that Alvarez Erazo failed to establish past
persecution because her experience of receiving one threatening note from MS-13
was not extreme enough to rise to the level of persecution. Additionally,
substantial evidence supports the IJ and BIA’s determination that Alvarez Erazo
did not have a well-founded fear of future persecution from MS-13 if she returned
to Honduras because: (1) her subjectively genuine fear of future persecution was
not objectively reasonable, given that she continued to live in the home where she
received the threat for 14 months without any further threat or harm, and her
family had safely resided in the home since her departure from Honduras; and
(2) the evidence did not establish that there was a pattern or practice of
6
Case: 17-15618 Date Filed: 12/20/2018 Page: 7 of 7
persecution in Honduras against immediate family members of MS-13 affiliates.
For the same reasons, the record does not compel a conclusion that Alvarez Erazo
established her eligibility for withholding of removal. Finally, substantial evidence
supports the IJ and BIA’s conclusion that Alvarez Erazo did not establish
eligibility for CAT relief because the evidence did not show that her feared future
torture would be with the consent or acquiescence of a public official.
Accordingly, nothing in the record compels the reversal of the BIA’s affirmance.
PETITION DENIED.
7