Orellana-Martinez v. Garland

Case: 20-60598 Document: 00516045395 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 6, 2021
No. 20-60598 Lyle W. Cayce
Clerk
Hector Raul Orellana-Martinez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 205 842 051
Before Jones, Smith, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:*
Hector Orellana-Martinez, a native and citizen of Honduras, petitions
for review of an order of the Board of Immigration Appeals (“BIA”) dismiss-
ing his appeal from the denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We
deny the petition.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-60598 Document: 00516045395 Page: 2 Date Filed: 10/06/2021
No. 20-60598
I.
Orellana-Martinez attempted to enter the United States in February
2013 without being admitted or paroled. The Department of Homeland
Security initiated removal proceedings, filing a Notice to Appear (“NTA”)
that charged Orellana-Martinez with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i). At a hearing, he admitted the allegations in the NTA,
thereby conceding that he was removable. He then filed an application for
asylum, withholding of removal, and protection under CAT. In his applica-
tion, he asserted that he had been beaten and threatened because of his work
for the Honduran National Party and that his assailants were gang members
affiliated with an opposing party.
At the removal hearing, Orellana-Martinez testified that four or five
masked men pulled him from his motorcycle on his way home from a political
gathering, called him a traitor, beat him so severely that he lost conscious-
ness, and threatened future harm. Orellana-Martinez provided medical doc-
umentation showing that he sought medical care for his injuries and also pro-
duced a police report indicating that he had reported his attack.
Orellana-Martinez did not indicate to the police, however, that the
assault was in anyway political; instead, he told them only that he had been
beaten by some men and that they threatened him and his family “if he did
not leave his house.” At his hearing, Orellana-Martinez testified that he
failed to tell the police about his assailants’ political motive because he was
afraid that corrupt police officers might inform his attackers and provoke a
reprisal. He further testified that he could not give the police an accurate
description of the perpetrators because they wore masks.
Orellana-Martinez also provided two affidavits from acquaintances
confirming the attack, but neither affidavit indicated that the attack was polit-
ically motivated. Orellana-Martinez testified that his acquaintances were
2
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No. 20-60598
also afraid to report that political animus was the impetus for the assault.
Orellana-Martinez asserts that, after the attack, he received five or six
threatening phone calls and that cars menacingly circled his house. He
contends that that intimidation prompted him to come to the United States.
The immigration judge (“I.J.”) denied Orellana-Martinez’s applica-
tion. The I.J. determined that Orellana-Martinez was credible and that the
harm inflicted on him because of his political opinion was severe enough to
rise to the level of persecution. The I.J. observed, however, that the harm
was not inflicted by the Honduran government and concluded that Orellana-
Martinez failed to establish that the government was unable or unwilling to
control his persecutors. The I.J. thus concluded that Orellana-Martinez
failed to establish past persecution.
The I.J. also determined that Orellana-Martinez had failed to show an
objectively reasonable fear of future persecution because he did not provide
evidence that his assailants still live in his home city or want to harm him.
The I.J. further noted that Orellana-Martinez was not harmed during the
months he lived in Honduras after he ceased political work. The I.J. pointed
out that the National Party—the party for which Orellana-Martinez had
campaigned—was currently the party in power, citing that fact as further evi-
dence that Orellana-Martinez failed to show the government was unable or
unwilling to control his persecutors. Finally, the I.J. determined that
Orellana-Martinez had not satisfied the higher standard of proof for with-
holding of removal and concluded that he failed to show that he was more
likely than not to be tortured, thus denying his claim for protection under
CAT as well.
Orellana-Martinez appealed. The BIA adopted and affirmed the I.J.’s
decision and dismissed the appeal. The Board agreed with the I.J. that
Orellana-Martinez failed to show that the Honduran government was unable
3
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or unwilling to protect him, noting that he failed to tell the police about the
political motive of his attackers and did not give the police any physical
description of the men. The BIA also observed that Orellana-Martinez failed
to inform the police of the calls and drive-by intimidation he suffered after
the attack. The Board further concluded that Orellana-Martinez could have
reasonably relocated to a different area of Honduras and therefore had not
shown a reasonable possibility of future persecution. Additionally, the BIA
agreed with the I.J. that it was significant that the National Party had become
the governing party in the country. Finally, the Board concluded that
Orellana-Martinez had not satisfied the requirements for withholding of
removal or for protection under CAT. The Board thus dismissed his appeal.
II.
In general, we may review the I.J.’s decision only to the extent that it
influenced the BIA’s decision, Singh v. Sessions, 880 F.3d 220, 224 (5th Cir.
2018), but where, as here, the Board adopted the I.J.’s decision, we may
review both, Trejo v. Garland, 3 F.4th 760, 774 (5th Cir. 2021). We review
the factual findings of those decisions “under the substantial evidence
standard, reversing only when the evidence compels a contrary result,” id.(quoting Alvarado de Rodriguez v. Holder, 585 F.3d 227, 233 (5th Cir. 2009));
we review legal determinations de novo, Lopez-Gomez v. Ashcroft, 263 F.3d
442, 444 (5th Cir. 2001) (per curiam).
To be eligible for asylum, an applicant must show that “he is ‘unable
or unwilling to return to . . . [and] avail himself or herself of the protection
of [his home] country because of persecution or a well-founded fear of perse-
cution on account of race, religion, nationality, membership in a particular
social group, or political opinion.’” Ghotra v. Whitaker, 912 F.3d 284, 288
(5th Cir. 2019) (quoting 8 U.S.C. § 1101(a)(42)(A)) (alterations and omis-
sions in original). Where an applicant shows that he suffered past persecu-
4
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tion on one of those bases, “there is a rebuttable presumption that he has a
well-founded fear of future persecution.” Id. But if he cannot establish past
persecution, he must “affirmatively establish a well-founded fear of persecu-
tion that is both subjectively held and objectively reasonable.” Id.
Where, as here, an applicant does not allege that the government is his
persecutor, he must show that the “government is unable or unwilling to con-
trol” the private actors in question. Tesfamichael v. Gonzales, 469 F.3d 109,
113 (5th Cir. 2006) (citing 8 C.F.R. § 1208.13(b)(1)). For the actions of pri-
vate actors to qualify as persecution, the applicant must show that “the gov-
ernment ‘condoned [the acts] or at least demonstrated a complete help-
lessness to protect the victims.’” Shehu v. Gonzales, 443 F.3d 435, 437 (5th
Cir. 2006) (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)).
III.
Orellana-Martinez presents a single issue for review: whether the I.J.
and BIA erred in concluding that Orellana-Martinez failed to establish past
persecution. 1 He contends that he established that the government was
unable or willing to control his assailants because the “police did little to
nothing to investigate his attack.” Orellana-Martinez contends that that
failure is especially egregious in light of the intimidation he suffered after his
assault. He cites Ivanov v. Holder, 736 F.3d 5 (1st Cir. 2013), in which Ivanov,
a refugee from Russian persecution, suffered multiple attacks over several
1
Orellana-Martinez raises no claim regarding the denial of his requests for with-
holding of removal and protection under CAT and has therefore waived any argument
concerning the denial of those forms of relief. See Soadjede v. Ashcroft, 324 F.3d 830, 833
(5th Cir. 2003). Moreover, Orellana-Martinez fails to address or challenge the BIA’s
conclusion that he could reasonably relocate within Honduras to avoid persecution. Thus,
apart from contending that he is entitled to a rebuttable presumption based on a demon-
stration of past persecution, he has abandoned any argument that he has a well-founded
fear of future persecution because of his political opinion. See id.
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years from skinheads because of his religious status, id. at 8–10. The court
determined that the police’s inaction was sufficient for Ivanov to establish
that the government was unwilling or unable to control his persecutors. Id.
at 14. Orellana-Martinez asserts that the same is true here.
Ivanov is readily distinguishable. First and most importantly, there is
nothing to suggest that Ivanov failed to inform the police that his persecutors
targeted him because he was a religious minority. See id. at 13–14. In con-
trast, Orellana-Martinez admits that he never informed the police that his
assailants were politically motivated. Second, although Ivanov and his family
reported his assaults to the police more than once, id. at 9–10, Orellana-
Martinez failed to report the harassment following his initial assault, submit-
ting only one complaint to the police. 2 Third, Ivanov produced at least some
evidence that police were colluding with the skinheads in his persecution. See
Ivanov, 736 F.3d at 13 (observing that one assault came after a police officer
failed to persuade Ivanov to testify against his pastor). Orellana-Martinez has
produced no such evidence of police collusion with his assailants. His cita-
tion to Ivanov is therefore unhelpful.
Orellana-Martinez also contends that a U.S. Department of State
2012 Human Rights report that discusses Honduran police corruption sup-
ports his assertion that the government was unable or unwilling to protect
him. He avers that he was justified in not reporting the political motives of
his assailants and his subsequent harassment because the police are corrupt.
Although the report does allege police corruption, it does not indicate that
that corruption is of a political nature such that Orellana-Martinez should
have reasonably feared reprisal for giving the police an accurate account of
2
Cf. Sharma v. Barr, 794 F. App’x 448, 449 (5th Cir. 2020) (per curiam) (deter-
mining the applicant failed to show the government was unable or unwilling to protect him
where he failed to report the harms and threats he suffered from private actors).
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his attack and later intimidation. 3 “[W]hile Honduras suffers widespread
police corruption, the country is nonetheless taking meaningful steps to
address these problems.” Gutierrez v. Garland, 12 F.4th 496, ___ (5th Cir.
2021) (internal quotation marks omitted). Accord Martinez-Lopez v. Barr, 943
F.3d 766, 772−73 (5th Cir. 2019). Thus, Orellana-Martinez’s “speculative
opinion that the government would not protect him and that contacting [the
police] would only make matters worse” is insufficient to establish that the
government was unable or unwilling to stop his assailants. Ramirez-Medrano
v. Sessions, 722 F. App’x 395, 396 (5th Cir. 2018) (per curiam). Because
Orellana-Martinez has not shown that the government of Honduras “con-
doned” his assault or “demonstrated a complete helplessness” to stop his
assailants, the I.J. and BIA did not err in finding that Orellana-Martinez failed
to establish past persecution. Galina, 213 F.3d at 958.
The petition for review is DENIED.
3
Cf. Arevalo-Velasquez v. Whitaker, 752 F. App’x 200, 202 (5th Cir. 2019) (per
curiam) (stating that an applicant’s “subjective belief” that reporting abuse to the police
would be futile because “the police can be bribed . . . is not sufficient to compel a conclu-
sion that the Honduran government was unable or unwilling to protect” the applicant).
7