Hernan Gonzalez-Posadas v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1732
_____________
HERNAN GONZALEZ-POSADAS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA: A-205-643-767)
Immigration Judge: Hon. Mirlande Tadal
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
February 13, 2015
Before: CHAGARES, JORDAN, and VANASKIE, Circuit
Judges.
(Filed: March 26, 2015 )
_______________
Michelle P. Gonzalez
Aaron C. Morris
Immigration Equality
40 Exchange Place – Ste. 1300
New York, NY 10005
Counsel for Petitioner
Eric H. Holder, Jr.
Thomas W. Hussey
Greg D. Mack
Brooke M. Maurer
United States Department of Justice
Office of Immigration Litigation, Civil Div.
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Hernan Gonzalez-Posadas petitions for review of an
order of the Board of Immigration Appeals (“the Board”).
Specifically, he argues that the Board erred in affirming an
Immigration Judge’s conclusions that he did not suffer past
persecution on account of his sexual orientation and that he
does not have a reasonable fear of future persecution on that
basis. We will deny the petition.
2
I. Background
Gonzalez-Posadas, a native and citizen of Honduras,
unlawfully entered the United States on September 28, 2012.
He was apprehended that same day by agents of the United
States Department of Homeland Security (“DHS”) and found
to be inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). He
was therefore removed from the United States on October 26,
2012. On February 21, 2013, he unlawfully reentered the
United States, and, a week later, was again apprehended by
DHS, which issued a “Notice of Intent/Decision to Reinstate
Prior Order.” That Notice referred to Gonzalez-Posadas’s
earlier order of removal and constituted the first step toward
again sending him back to his home country. In response,
Gonzalez-Posadas expressed a fear of returning to Honduras.
Soon after, the Asylum Office of the United States
Citizenship and Immigration Services (“USCIS”) interviewed
him.
A. Interview with USCIS
Gonzalez-Posadas told the USCIS interviewer that he
had fled Honduras for two reasons. First, he reported that a
gang called the “Maras”1 wanted to kill him. He told USCIS
that he had been extorted by the Maras several times in
Honduras because they believed that his sister in the United
1
The “Mara Salvatrucha” – also known as “Maras” or
“MS-13” – is a criminal gang that reportedly operates in
Honduras and other Central American countries. (See A.R. at
230 (identifying the gang as “Mara Salvatrucha” or “MS-
13”); id. at 248 (identifying the “Maras” as the “MS-13”
gang).)
3
States had sent him money. He said that the gang had never
physically harmed him but on one occasion some gang
members confronted him with a weapon, demanded 1,500
Lempira,2 and told him that they were going to kill him if he
did not pay them within five days. He acknowledged,
however, that he did not pay them and nothing happened to
him the next time he saw them. The gang also attempted to
recruit him and his cousin, but Gonzalez-Posadas refused to
join. When asked if he had ever gone to the police to report
the Maras, Gonzalez-Posadas said he had done so but that his
efforts to get help were fruitless because the police told him
that they “didn’t have enough proof” (A.R. at 249-50),
evidently meaning there was insufficient proof to pursue his
particular complaint.
The second reason Gonzalez-Posadas gave for fleeing
Honduras was that his family mistreated him because they
believed he was gay. He told the interviewer that he is not
gay but that people believed him to be gay. When asked if he
had ever been subjected to torture, he responded that he had
because his family “humiliated” him by using homophobic
slurs. (Id. at 249-51.) Gonzalez-Posadas also stated that one
of his cousins was tied up and raped by his father for being
gay. In addition, Gonzalez-Posadas said he was twice raped
as a teenager by his cousin Felipe but never told anyone about
the rapes because Felipe threatened to hurt his mother if he
reported them. When asked if he had any reason to fear the
Honduran authorities, he replied, “No.” (Id. at 252.)
2
The Lempira is the currency of Honduras and, during
the relevant time period, 1,500 lempira was worth
approximately 78 U.S. dollars.
4
USCIS determined that Gonzalez-Posadas had
established a reasonable fear of persecution in Honduras and
referred his case for a hearing before an immigration judge
(“IJ”).
B. Application for Withholding of Removal and
Protection
Because asylum is not available to aliens who face
reinstatement of a prior order of removal, 8 U.S.C.
§ 1231(a)(5), Gonzalez-Posadas could not seek asylum, but
he did submit an application for withholding of removal and
protection under the Convention Against Torture (“CAT”).
In his application, he described the pattern of extortion
and repeated attempts at recruitment to which he said the
Maras subjected him. He also said the Maras approached two
of his cousins, Herlindo Hernandez and Marvin Hernandez,
and made similar attempts to lure them into joining the gang.
When the two refused, the gang allegedly attacked Herlindo
with machetes. Gonzalez-Posadas stated that, soon after
attacking Herlindo, the Maras also tried to attack him with
machetes, but he was able to hide for a few hours until they
left. He claimed that an attempt to get law enforcement to
intervene was useless because the police were “corrupt and
weak” and did nothing. (A.R. at 230.) He further claimed
that he feared torture and death because he had refused to join
the Maras, had reported them to the police, and was on their
“kill” list.
Gonzalez-Posadas went on in his application to say
that he feared rape, torture, and death because he had been
“repeatedly raped” by his cousin Felipe, whom he identified
5
as a member of the Maras and who called him “gay,” “trash,”
a “fag,” and “worth nothing.” (Id. at 223, 230.) In addition,
he said that other family members discriminated against him
because of their perception of his sexual orientation.
Finally, Gonzalez-Posadas stated that, after his first
removal from the United States and return to Honduras, the
Maras’ threats worsened, which led to his second effort to
enter the United States. He said that, three days after he left
Honduras, the Maras shot and killed his cousin Marvin for
refusing to join the gang, for being related to Gonzalez-
Posadas who also refused to join the gang, and in retaliation
for Gonzalez-Posadas’s decision to report the gang to the
police.
C. Proceedings Before the IJ
The application for withholding of removal and
protection under CAT that Gonzalez-Posadas filed became
the basis for a hearing before an IJ. At that hearing, when
asked on direct examination what his sexual orientation was,
Gonzalez-Posadas replied, “I’m gay.” (Id. at 115.) When
asked if he had ever been subjected to any harsh treatment
because of being gay, Gonzalez-Posadas replied, “Yes.” (Id.
at 116.) Gonzalez-Posadas then described his first forced
sexual encounter with Felipe, stating that, when Felipe raped
him, he first beat him and threatened him with a knife.
Because Felipe told Gonzalez-Posadas that he would kill him
and his mother if he reported the rape, Gonzalez-Posadas kept
silent about it. Gonzalez-Posadas testified that Felipe raped
him again a second time, after beating him and threatening
him with a pistol, and Felipe again threatened to kill him if he
told anyone about the rape. Gonzalez-Posadas testified that,
6
in spite of the threats, he eventually reported the second rape
to the police some three years later.
Gonzalez-Posadas also testified that the Maras
mistreated him by using homophobic slurs, and they
threatened to kill him if he did not pay them. He said that
gang members would tell him that he had to perform oral sex
on them, though he never did. He also described in detail an
incident when the Maras attempted to recruit and extort him.
Some time after his mother died, eight armed Maras showed
up at his house, beat him, and demanded that he join their
gang. When he refused to join, they told him that he had to
pay them 1,500 Lempira on the fifth of each month or else
they would kill him. He attempted to escape the gang by
moving to a different part of Honduras, but the gang found
him after two weeks and threatened to kill him if he did not
submit to the extortion. He testified that he went to the police
in November 2012 to report the Maras but was told that he
did not have enough proof to initiate an arrest against any
members of the gang.
In his testimony, Gonzalez-Posadas gave more detail
about his sexual orientation than he had earlier. He stated
that people had noted his effeminate nature since his
childhood. He said that when he was 18, he had a
homosexual relationship with a friend. He also testified about
his decision to attend a beauty academy, saying that it had
always been his desire to become a beautician but that
pursuing his career had fueled the homophobic abuse he
experienced, including from members of his family. When
asked why he had not told the USCIS interviewer that he was
gay, he said that the interview had taken place too quickly
7
and that he did not feel comfortable disclosing that to the
interviewer.
Finally, Gonzalez-Posadas testified that he fled to the
United States and feared returning to Honduras because of the
Maras and his cousin, and that the Maras knew he had
reported them to the police. Gonzalez-Posadas stated that he
feared he would be abused if he were returned to Honduras
because the gang has a significant presence throughout the
country. He said, “When they find out that I’m gay I’m
afraid that they may want to rape me again.”3 (A.R. at 141.)
On cross examination, Gonzalez-Posadas testified that
he never told anyone that Felipe had raped him on either
occasion, and that he did not know that Felipe was a member
of the Maras until two years after the second attack.
Gonzalez-Posadas also stated that, during the incident with
the Maras at his home, he was beaten, threatened with a gun,
and subjected to homophobic slurs. He admitted that he was
not seriously hurt during the incident and that the gang did
not try to recruit him, though they told him that he had to pay
them money or else sell drugs for them. Gonzalez-Posadas
also said that gang members (presumably excluding Felipe)
never sexually assaulted him in any way; instead, they “just
[made] threats” with sexual overtones. (A.R. at 151.)
Gonzalez-Posadas stated that he was harassed by the Maras
on twenty to thirty occasions.
3
The use of the word “again” in that testimony is
somewhat contradictory since Gonzalez-Posadas also stated
that gang members had not sexually assaulted him. Perhaps,
however, it was a reference to Felipe, who, according to
Gonzalez-Posadas, is a member of the gang.
8
On cross examination, Gonzalez-Posadas also
provided new details about his visit to the police in November
2012. During that visit, he allegedly complained about
numerous past instances of harm that he had experienced at
the hands of the Maras. But instead of helping him, the
police told him not only that he did not have enough proof,
but also that he was lying to them, and one officer took
Gonzalez-Posadas’s written declaration and threw it in the
garbage. When asked why he had not shared those details in
his application, Gonzalez-Posadas said that no one had asked
him questions that called for them. Finally, he testified that
the police did not use any homophobic slurs or say anything
about his sexuality.
Along with his testimony, Gonzalez-Posadas
submitted documentary evidence for the IJ’s consideration.
He offered a 2012 State Department Country Report on
Honduras, which noted that problems in Honduras included
an “arbitrary” police force; a “corrupt[] and institutional[ly]
weak[] justice system;” and violence and widespread
discrimination against lesbian, gay, bisexual, and transgender
(“LGBT”) persons. (A.R. at 182, 193-94, 200.) Gonzalez-
Posadas also submitted a 2013 Human Rights Watch Report,
which stated that, according to local human rights advocates,
approximately 70 LGBT persons had been killed between
September 2008 and March 2012, and that Honduran police
were allegedly involved in some of those deaths. The 2013
Human Rights Watch Report and the 2012 State Department
Country Report disclosed, however, that the government had
established a special victims unit in the attorney general’s
office to investigate certain crimes against LGBT persons and
other vulnerable groups. Gonzalez-Posadas further submitted
a 2011 Amnesty International Report on Honduras in which
9
members of the LGBT community complained that they are
subjected to threats and violence and that their reports to the
police rarely yield results.
Gonzalez-Posadas also proffered a March 20, 2013
homicide report confirming that his cousin Marvin died from
gunshot wounds. In addition, he provided the affidavit of a
woman who stated that she had known Gonzalez-Posadas
since he moved away from his mother’s home to escape the
Maras and that he continued to suffer threats, extortion, and
homophobic harassment. She also said that Marvin
Hernandez was murdered by gang members and that the
perpetrators were still free. Finally, Gonzalez-Posadas
submitted a translation of several questions and answers he
had written, dated August 15, 2013, in which he described his
profession, stating that it is uncommon for men in Honduras
to work as hair stylists and cosmetologists and that men in
that line of work are often harmed because of animus directed
at them due to perceptions about their sexual orientation. He
said that people discriminated against him and used
homophobic slurs because of his career choice. Gonzalez-
Posadas stated in the document that he had never been
attracted to females or had sex with a woman, but that he
once had homosexual feelings for a male friend.
Concluding that Gonzalez-Posadas’s credibility was
suspect for two reasons, the IJ denied his application for
withholding of removal and protection under the CAT. First,
the IJ noted that Gonzalez-Posadas’s narrative had evolved
over time – with additional self-serving, specific details
appearing in three successive amendments to his application
and then in his live testimony. Second, the IJ decided that
Gonzalez-Posadas’s direct testimony was not consistent with
10
his application or with his cross-examination testimony,
particularly his testimony regarding his November 2012
interaction with the police.
Regarding withholding of removal, the IJ accepted
Gonzalez-Posadas’s assertion that he was a member of the
social group consisting of homosexual males, but concluded
that the events complained of, namely two unreported rapes,
extortion by the Maras, and exposure to homophobic slurs,
were insufficient to establish past persecution or a risk of
future persecution on account of sexual orientation. The IJ
also held that the second social group in which Gonzalez-
Posadas alleged he was a member – namely, “young
Honduran men who share experiences of repeated resistance
to gang recruitment” – was not cognizable because it did not
exist independent of the alleged persecution. (Id. at 78-80.)
Regarding protection under the CAT, the IJ determined that
Gonzalez-Posadas did not express fear of torture by the
Honduran government or fear that the Honduran government
would acquiesce in his torture, and that any such claim would
be speculative.
D. Appeal to the Board
Gonzalez-Posadas appealed the IJ’s decision, and the
Board dismissed the appeal. It concluded that the IJ had not
committed clear error in deciding that Gonzalez-Posadas was
not persecuted on account of his homosexuality. More
particularly, it concluded that the two unreported rapes did
not constitute past persecution and that Gonzalez-Posadas had
failed to show a clear probability that he would be persecuted
in the future on account of his homosexuality. The Board
also decided that the IJ was correct in holding that the
11
proposed social group of “‘young Honduran men who have
resisted gang recruitment’” does not have the requisite social
distinction to qualify as a particular social group within the
meaning of the operative statute. (Id. at 5.) But, the Board
held, even if that proposed group were cognizable, Gonzalez-
Posadas had not demonstrated the required nexus between the
harm he feared and his status within that group. Finally, the
Board agreed that any sincere fear of harm or torture harbored
by Gonzales-Posadas was speculative and that he had not
established government consent or acquiescence in any past
torture or the likelihood of it in the future.
Gonzalez-Posadas timely filed the present petition
challenging the Board’s decision.4
4
Gonzalez-Posadas did not seek a stay of removal and
was removed from the United States on March 28, 2014.
12
II. Discussion5
Gonzalez-Posadas does not challenge the portion of
the Board’s holding affirming that the group consisting of
“young Honduran men who have resisted gang recruitment”
is not a cognizable social group for purposes of withholding
of removal. He also does not challenge the Board’s denial of
his application for protection under the CAT. Instead, he
advances two primary arguments in his petition for review.
First, he says that the Board erred in upholding the IJ’s
conclusion that he did not establish past persecution on
account of his membership in a social group consisting of
homosexual males. Second, he argues that the Board erred in
upholding the IJ’s conclusion that he did not establish a fear
of future persecution on account of his sexual orientation.
We address each of those arguments below.
5
The Board had jurisdiction under 8 U.S.C.
§ 1103(g)(2) and 8 C.F.R. § 1208.31(e). We have jurisdiction
to review final orders of the Board pursuant to 8 U.S.C.
§ 1252. When the Board relies on an IJ’s legal conclusions
and findings of fact, we review the IJ’s decision and the
Board’s decision. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d
Cir. 2009). We must accept factual findings if supported by
substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). Under that deferential standard, we must uphold
the agency’s determination unless the evidence would compel
any reasonable fact finder to reach a contrary result. 8 U.S.C.
§ 1252(b)(4)(B); Elias-Zacarias, 502 U.S. at 481 n.1; Abdille
v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). Gonzalez-
Posadas argues that he remains eligible for withholding of
removal despite his removal from the United States, and the
government agrees.
13
A. Past Persecution
Under section 241(b)(3)(A) of the Immigration and
Nationality Act, “[t]he Attorney General may not remove an
alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership
in a particular social group or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The alien bears the burden of proving that
he will more likely than not face persecution on account of
one of those protected grounds. INS v. Stevic, 467 U.S. 407,
429-30 (1984); Senathirajah v. INS, 157 F.3d 210, 215 (3d
Cir. 1998) (“To meet this test, the alien must demonstrate that
there is a greater-than-fifty-percent chance of persecution
upon his or her return.”). Proof of past persecution raises a
rebuttable presumption that the alien’s life or freedom would
be threatened in the future. 8 C.F.R. § 1208.16(b)(1)(i).
Under our cases, “‘persecution’ is an extreme concept that
does not include every sort of treatment our society regards as
offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993)
(“[P]ersecution does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or
unconstitutional.”). Rather, “persecution” encompasses only
grave harms such as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to
life or freedom.” Id. at 1240.
To establish eligibility for withholding of removal
based on membership in a particular social group, an
applicant must establish both that the group itself is properly
cognizable as a “social group” within the meaning of the
statute, and that his membership in the group is “one central
reason” why he was or will be targeted for persecution.
14
Matter of C-T-L-, 25 I. & N. Dec. 341, 344-46 (BIA 2010)
(extending the “one central reason” standard from asylum
cases to cases involving withholding of removal).6 We are
6
While the parties appear to agree on this point, we
have not heretofore addressed whether the Board’s decision
in Matter of C-T-L- properly extended the “one central
reason” test to determinations of withholding of removal.
Subsection 101(c) of the REAL ID Act amends section
241(b)(3) of the INA by applying to and codifying for
withholding of removal the same standards for sustaining the
applicable burden of proof in terms of corroboration and
credibility that are used for asylum adjudications under
sections 208(b)(1)(B)(ii) and (iii) of the INA, as amended by
section 101(a)(3) of the REAL ID Act. REAL ID Act of
2005, Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 231 (codified
at 8 U.S.C. § 1158(b)(1)(B)); id. at § 101(c) (codified at 8
U.S.C. § 1231(b)(3)(C)). Prior to passage of the REAL ID
Act in 2005, there was no statutory standard for judging
whether an alien should be granted asylum when he was
persecuted on account of both protected and unprotected
grounds. As a result, the Board and the courts formulated
various “mixed motive” persecution tests, with this Court
providing that an applicant needed only to show that his
persecution was caused “at least in part” by membership in a
protected group. Ndayshimiye v. Att’y Gen., 557 F.3d 124,
129 (3d Cir. 2009) (internal quotation marks omitted); see
also Matter of C-T-L-, 25 I. & N. Dec. at 345-46 (discussing
the various tests developed prior to the REAL ID Act). The
REAL ID Act supplanted that standard, requiring instead that
an asylum applicant establish that membership in a particular
social group “was or will be at least one central reason for
persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i)
15
not free to assume that past persecution was perpetrated on
account of a protected characteristic, such as membership in a
particular social group. See INS v. Elias-Zacarias, 502 U.S.
478, 483 (1992) (stating that evidence of a persecutor’s
motives is required). Rather, the applicant bears the burden
of proving that one central reason for the persecution was a
protected characteristic. Matter of C-T-L-, 25 I. & N. Dec. at
350. For a protected characteristic to qualify as “one central
reason”, it must be an essential or principal reason for the
persecution; withholding of removal may not be granted
when the characteristic at issue “played only an incidental,
tangential, or superficial role in persecution.” Ndayshimiye v.
Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009) (discussing
asylum). Conflicts of a personal nature and isolated criminal
acts do not constitute persecution on account of a protected
characteristic. See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d
Cir. 2007) (concluding that no reasonable fear of persecution
existed when gang targeted the applicant for economic gain,
not because of his political or family affiliation); Amanfi v.
Ashcroft, 328 F.3d 719, 727 (3d Cir. 2003) (finding no
(emphasis added). But the REAL ID Act did not expressly
state whether the “one central reason” test should apply in the
context of withholding of removal. We believe that the
Board’s decision in Matter of C-T-L- to extend the “one
central reason” test to withholding of removal was sound and
we likewise adopt that conclusion now. In particular, we
agree that “ʻthe language and design of the statute’
evidences” Congress’s intent to eliminate the confusion and
disparity inherent in the “mixed motive” persecution tests in
the context of both claims for asylum and claims for
withholding of removal. Matter of C-T-L-, 25 I. & N. Dec. at
348.
16
reasonable fear of persecution on account of the applicant’s
religion when past conflict was motivated by an interpersonal
conflict and not by religious bigotry); see also Marquez v.
INS, 105 F.3d 374, 380 (7th Cir. 1997) (“A personal dispute,
no matter how nasty, cannot support an alien’s claim of
asylum.”).
The IJ and the Board held – and the government does
not dispute – that Gonzalez-Posadas’s sexual orientation
placed him in a cognizable social group. But the IJ
concluded, and the Board agreed, that Gonzalez-Posadas
failed to establish past persecution because he failed to
demonstrate that he was persecuted on account of his sexual
orientation.7 We must determine whether substantial
evidence supports that conclusion.
Gonzalez-Posadas argues that he has shown he
suffered “one or more incidents of persecution at the hands of
homophobic [Mara] gang members on account of his sexual
orientation.” (Gonzalez-Posadas Br. at 10.) He asserts that,
because he credibly testified that gang members called him
“dog,” “garbage,” “faggot,” and told him that he “should be
dead” and that he “should not exist in this society,” he proved
that his sexual orientation was one central reason for his
persecution. (Gonzalez-Posadas Br. at 15 (internal quotation
marks omitted); A.R. at 122.) He also points to other
7
As noted by the government, the IJ appears to have
conflated whether Gonzalez-Posadas had established that the
mistreatment he suffered rose to the level of persecution with
whether he was mistreated on account of his sexual
orientation. We will assume, without deciding, that the
mistreatment rose to the level of persecution.
17
testimony which he believes resolves the issue in his favor:
the Maras “‘would mistreat [him], they would beat [him] up –
they said they would kill [him] if it wasn’t because [he] was
paying them money – that someone like [him] should be
dead.’” (Gonzalez-Posadas Br. at 15 (alterations in original)
(quoting A.R. at 124).)
The problem with Gonzalez-Posadas’s argument is
that it relies on a narrow and naturally one-sided
interpretation of the record. Despite the picture he paints,
substantial evidence in the record – including his own prior
statements – can be understood to show that the Maras were
interested in him for two reasons: he had money, and he was a
potential recruit. For instance, when asked point-blank by the
USCIS interviewer why the Maras threatened to harm him,
Gonzalez-Posadas responded, “Because they wanted to steal
from me.” (A.R. at 247.) In his application for withholding
of removal, he stated, “[M]y mother and I were targets of
extortion by the [Maras]” because the gang believed that the
two of them received money from his sister in the United
States. (A.R. at 230.) He further stated that he feared death
and torture at the hands of the Maras because he had refused
to join their gang, he had reported them to the police, and he
had attempted to escape from them. At no point in the
application did Gonzalez-Posadas suggest that the gang had
any interest in harming him on account of his homosexuality.
To further underscore the point, when he testified
about his interaction with the Maras when they first began
extorting him, he did not claim that any reference to his
sexual orientation was made; the Maras only expressed
interest in his money. In addition, he testified that the Maras
also used intimidation and violence in their attempt to coerce
18
his cousins to join the gang. He did not testify that either of
those cousins was gay, which suggests that the Maras’
interest in recruiting young men, including Gonzalez-
Posadas, had nothing to do with sexual orientation. While it
may certainly be true that the Maras used homophobic slurs
and sexual threats when addressing Gonzalez-Posadas, the
record can support the conclusion that the abusive language
was a means to an end – namely cowing Gonzalez-Posadas
into paying them off or joining their gang.
Gonzalez-Posadas focuses in his briefing on the
actions of the Maras. Our analysis has in turn focused on the
Maras’ acts. To the extent Gonzalez-Posadas has not
abandoned reliance on the rapes committed by his cousin,
however, we conclude that, heinous though those crimes
were, the conclusion of the IJ that they were “isolated
criminal acts” that were not motivated by Gonzalez-Posadas’s
homosexuality is supported by substantial evidence. (A.R. at
77.) They are therefore not a basis for a finding of past
persecution. See Abdille v. Ashcroft, 242 F.3d 477, 494 (3d
Cir. 2001) (“The assaults experienced by Abdille at the hands
of two different sets of assailants could represent random
street violence, motivated not by animosity against a
particular ethnic group, but rather by arbitrary hostility or by
a desire to reap financial rewards. Such ordinary criminal
activity does not rise to the level of persecution necessary to
establish eligibility for asylum.”); see also Singh v. INS, 134
F.3d 962, 967 (9th Cir. 1998) (“Mere generalized lawlessness
and violence between diverse populations, of the sort which
abounds in numerous countries and inflicts misery upon
millions of innocent people daily around the world, generally
is not sufficient” to establish past persecution).
19
In short, while other interpretations of the record are
certainly possible, substantial evidence supports the agency’s
determination that Gonzalez-Posadas’s homosexuality was
not one central reason for the persecution.
B. Fear of Future Persecution
Even if an applicant fails to prove that he suffered past
persecution, he can still establish that “it is more likely than
not that he … would be persecuted” in the future on account
of a protected characteristic if he were removed. 8 C.F.R.
§ 1208.16(b)(2); Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.
2003). An applicant for withholding of removal may
demonstrate a sufficient threat of future persecution by
showing either that it is more likely than not that he will be
“singled out individually” for persecution on account of a
protected basis, or that “there is a pattern or practice of
persecution of a group of persons similarly situated” to him
on account of a protected basis, and that he is a member of
that group, and that his life or freedom would be more likely
than not be threatened if he were removed. 8 C.F.R.
§ 1208.16(b)(2)(i), (ii). To qualify as a “pattern or practice”
for purposes of withholding of removal, the persecution must
be “systematic, pervasive, or organized.”8 See Lie v.
Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (interpreting
“pattern or practice” in asylum regulations).
8
Because the regulatory language that Lie interpreted
is nearly identical in both the asylum and withholding of
removal contexts, we conclude that the test set forth for
proving “pattern or practice” in the asylum context also
applies to proof supporting withholding of removal.
20
Gonzalez-Posadas argues that “[t]he record
demonstrates … [he] suffered homophobic mistreatment that
will likely continue to worsen in the future such that it will
rise to the level of persecution.” (Gonzalez-Posadas Br. at
17.) He asserts that his own experiences bear out the cogency
of his argument: “[h]e was raped with a knife held to his
neck, called a faggot 20-30 times, extorted for money at
gunpoint, beaten and threatened with death,” all allegedly
because he was perceived as gay. (Id.) He also asserts that
the mistreatment directed at him is likely to intensify because
he is older than he was when he was previously mistreated
and because he is now an uncloseted gay man. Further,
relying on the documentary evidence presented to the IJ, he
asserts that conditions in Honduras validate his fear of future
persecution and establish that it is more likely than not that he
will face future persecution in Honduras based on his sexual
orientation.
Viewing the entirety of the record, however, we are
bound to say that the agency’s determination that Gonzalez-
Posadas failed to establish that it was more likely than not he
would be subjected to future persecution is supported by
substantial evidence. First, as we have already discussed,
Gonzalez-Posadas did not establish that the Maras targeted
him on account of his sexual orientation, nor did he show that
the rapes he suffered by his cousin were related to his
(Gonzalez-Posadas’s) sexual orientation. Second, as to the
documentary evidence of country conditions in Honduras, we
cannot agree that the evidence compels the conclusion that
Gonzalez-Posadas is more likely than not to suffer
persecution on account of his sexual orientation, especially in
light of the statements in the 2013 Human Rights Watch
Report that the Honduran government has established a
21
special unit in the attorney general’s office to investigate
crimes against LGBT persons and other vulnerable groups.
While the documentary evidence does demonstrate that
LGBT persons may face violence at the hands of their fellow
Honduran citizens and suffer indignities and discrimination,
the record does not compel the conclusion that there is a
“systematic, pervasive, or organized” pattern or practice of
persecution of LGBT persons in Honduras. Again, there is
more than one way to view the record before us, but we are
required to uphold the decision of the Board when there is, as
in this case, substantial evidence to support it. 8 U.S.C.
§ 1252(b)(4)(B); Elias-Zacarias, 502 U.S. at 481.
III. Conclusion
Accordingly, for the reasons stated, we will deny the
petition for review.
22