Pineda-Hernandez v. Holder, Jr.
Filing
OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Per Curiam. Unpublished. [15-1501]
Case: 15-1501
Document: 00117061414
Page: 1
Date Filed: 09/29/2016
Entry ID: 6036637
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1501
GLORIA ESPERANZA PINEDA-HERNANDEZ,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
Paul
Fiorino,
Senior
Litigation
Counsel,
Office
of
Immigration Litigation, United States Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Douglas E. Ginsburg, Assistant Director, on
brief for respondent.
September 29, 2016
Case: 15-1501
Document: 00117061414
Per
Curiam.
Page: 2
Petitioner
Date Filed: 09/29/2016
Gloria
Entry ID: 6036637
Esperanza
Pineda-
Hernandez ("Pineda"), a native and citizen of Honduras, asks us to
review a Board of Immigration Appeals ("BIA") order denying her
claims for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (“CAT”).
After
careful consideration of the briefs and the record, we deny the
petition.
I.
Pineda entered the United States unlawfully in March
2012 and was subsequently served with a Notice to Appear charging
her as removable pursuant to Immigration and Nationality Act §
212(a)(7)(A)(i).
In response, Pineda conceded removability and
sought asylum, withholding of removal, and protection under the
CAT.
In support of these claims, Pineda alleged that, two or
three months before she left Honduras, she had been touched
sexually, pushed to the ground, and threatened by a member of the
Mara Salvaltrucha gang named "El Peludo."1
Pineda expressed her
belief that El Peludo would also have raped her had another man
not come to her assistance.
Pineda did not report the attack to
1
Pineda also testified that she had previously interacted
with El Peludo on just two occasions.
During the first, at a
party, he repeatedly asked her to dance and stared at her after
she refused. During the second, he approached her on the street
and asked her to live with him.
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the local authorities, believing that the police would not do
anything to help her and fearing that El Peludo and his fellow
gang members would retaliate against her if she did.2
Although
Pineda did not encounter El Peludo again after the assault, she
stated that she still feared he would rape or kill her.
The immigration judge ("IJ") found Pineda credible but
ineligible for relief.
The IJ reasoned that Pineda's experiences
did not rise to the level of persecution and that, even if they
did, she had not established a nexus to a protected ground.
The BIA subsequently affirmed, emphasizing that although
the evidence reflected that Pineda "was the victim of a criminal
act by a gang member who sought a relationship with her," it did
not support a claim that she had suffered past persecution or that
she was targeted on account of any protected ground. This petition
timely followed.
II.
Where, as here, the BIA issues its own opinion, we focus
on the decision of the BIA as opposed to that of the IJ.
v. Mukasey, 524 F.3d 302, 307–308 (1st Cir. 2008).
Pulisir
In reviewing
a BIA decision, we ask whether it is "supported by reasonable,
substantial, and probative evidence on the record considered as a
2
Additionally, the record shows that the police station was
approximately 25 to 30 minutes away from Pineda's home in Agua
Azul.
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whole."
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Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014).
it is, we will uphold it.
If
Under this deferential standard, the
fact that "the record supports a conclusion contrary to that
reached by the BIA is not enough to warrant upsetting the BIA's
view of the matter; for that to occur, the record must compel the
contrary conclusion."
Lopez de Hincapie v. Gonzales, 494 F.3d
213, 218 (1st Cir. 2007).
In
order
to
qualify
for
asylum,
an
applicant
must
establish either past persecution or a well-founded fear of future
persecution if repatriated, on account of one of five enumerated
grounds, including membership in a particular social group.
8 U.S.C. § 1101(a)(42)(A).
See
The asylum statute "is not intended to
protect aliens from violence based on personal animosity." Romilus
v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004); accord Guerra-Marchorro
v. Holder, 760 F.3d 126, 128-29 (1st Cir. 2014).
Thus, Pineda
bears the burden of showing both that she was persecuted and that
there
was
a
"nexus"
between
statutorily protected grounds.
217.
the
persecution
and
one
of
the
See Lopez de Hincapie, 494 F.3d at
Further, the government must be implicated for harm to
qualify as persecution.
Cir. 2010).
Barsoum v. Holder, 617 F.3d 73, 79 (1st
And that is the problem for Pineda, because the harms
she suffered were, on her own account, inflicted solely by El
Peludo,
without
condonation.
the
government's
See id. at 80.
involvement,
complicity,
or
Although Pineda's reluctance to
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report the sexual assault was understandable, her decision not to
involve the police made it impossible for the Honduran government
to respond.
Cf. Castillo-Diaz v. Holder, 562 F.3d 23, 25 (1st
Cir. 2009) (denying petition for review of a kidnapping and rape
victim, in part because no police report had been filed).
a
showing
of
past
persecution,
Pineda
is
not
Absent
entitled
to
a
presumption that her fear of future persecution is well-founded.
See Barsoum, 617 F.3d at 80; see also 8 C.F.R. §208.13(b)(1).
Because Pineda has not carried her burden of showing
that she suffered past persecution or has a well-founded fear of
future persecution, we need not reach the question of whether harm
has occurred (or is anticipated to occur) "on account of" her
membership in a particular social group.
Because Pineda failed to carry the burden of persuasion
for the asylum claim, her counterpart claim for withholding of
removal necessarily fails.
See Villa-Londono v. Holder, 600 F.3d
21, 24 n.1 (1st Cir. 2010).
This
concluded
protection
brings
that
under
Pineda
the
us
to
had
CAT,
Pineda's
not
final
established
explaining
that
claim.
The
BIA
eligibility
for
she
failed
to
"demonstrate[] that she is more likely than not to be tortured in
Honduras, by or with the acquiescence . . . of a government
official."
The record amply supports this conclusion.
Pineda has
not adduced any evidence that her potential torturers — El Peludo
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and, possibly, his fellow Mara gang members — are state actors or,
alternatively, that the authorities would in some way be complicit
in her torture.
This is important because, without minimizing
Pineda's unfortunate situation, the mere infliction of harm does
not constitute torture within the meaning of the CAT.
Rather,
such injury meets this definition only if the harm "is inflicted
by, at the direction of, or with the acquiescence of government
officials."
Lopez de Hincapie, 494 F.3d at 221.
III.
For the foregoing reasons, we deny Pineda's petition for
review.
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