Lesly Banegas-Rivera v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A206-847-672,A206-847-673 Copies to all parties and the district court/agency. [999960415].. [16-1261]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1261

LESLY ESPERANZA BANEGAS-RIVERA; B.S.R.,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

September 29, 2016

Decided:

November 2, 2016

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Petition denied by unpublished per curiam opinion.

Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring,
Maryland, for Petitioners.
Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Julie Iversen, Senior Litigation
Counsel,
Robert
Michael
Stalzer,
Office
of
Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lesly
natives

Esperanza

and

citizens

Banegas-Rivera
of

and

Honduras,

her

petition

daughter,
for

review

B.S.R.,
of

an

order of the Board of Immigration Appeals (Board) dismissing
their appeal from the immigration judge’s (IJ) decision denying
Banegas-Rivera’s
removal,
(CAT).

and

applications

protection

under

for
the

asylum,
Convention

withholding
Against

of

Torture

For the reasons set forth below, we dismiss the petition

for review.
The Immigration and Naturalization Act (INA) vests in the
Attorney

General

the

discretionary

aliens who qualify as refugees.
265, 272 (4th Cir. 2011).
or

unwilling

to

return

power

to

grant

asylum

to

Djadjou v. Holder, 662 F.3d

A refugee is someone “who is unable
to”

her

native

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.”

8 U.S.C. § 1101(a)(42)(A) (2012).

An asylum applicant has the burden of proving that she satisfies
the definition of a refugee to qualify for relief.
F.3d at 272.

Djadjou, 662

She may satisfy this burden by showing that she

was subjected to past persecution or that she has a well-founded
fear of persecution on account of a protected ground.
C.F.R. § 208.13(b)(1) (2016).

See 8

If the applicant establishes past

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persecution, she has the benefit of a rebuttable presumption of
a well-founded fear of persecution.

Djadjou, 662 F.3d at 272.

If the applicant is unable to establish that she was the
victim of past persecution, she must establish a well-founded
fear of future persecution.

A well-founded fear of persecution

has a subjective and objective component.
592 F.3d 594, 600 (4th Cir. 2010).

Marynenka v. Holder,

The subjective component

requires that the applicant show genuine fear of persecution.
The objective component requires that the applicant show with
specific and concrete facts that a reasonable person in like
circumstances would fear persecution.

Id.

An applicant faces a heightened burden of proof to qualify
for withholding of removal to a particular country under the
INA.

Djadjou,

662

F.3d

at

272.

She

must

show

a

clear

probability of persecution on account of a protected ground.
Id.
is

If she meets this heightened burden, withholding of removal
mandatory.

However,

if

the

applicant

cannot

demonstrate

asylum eligibility, her application for withholding of removal
will necessarily fail as well.

Id.

Additionally, because Banegas-Rivera is claiming that she
was persecuted and fears future persecution at the hands of a
private

actor,

her

former

partner,

and

not

the

Honduran

government, she must establish that the government cannot or
will not control the offender.

See Mulyani v. Holder, 771 F.3d
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190, 198 (4th Cir. 2014) (noting that an applicant alleging past
persecution
government

must
or

“show

by

that

others

the

whom

harm

the

was

inflicted

government

is

by

unable

the
or

unwilling to control”); M.A. v. INS, 858 F.2d 210, 218 (4th Cir.
1988) (holding asylum can be established by showing that the
government

is

“unwilling

or

unable

to

control

the

offending

group”).
Because the Board “issued its own opinion without adopting
the

IJ’s

opinion

.

.

opinion of the IJ.”
Cir. 2014).
manifestly
Djadjou,

.

we

review

that

opinion

and

not

the

Martinez v. Holder, 740 F.3d 902, 908 (4th

We will uphold the Board’s decision unless it is
contrary

662

F.3d

to
at

the
273.

law

and

The

an

abuse

standard

of

of

discretion.

review

of

the

agency’s findings is narrow and deferential.

Factual findings

are

evidence.

affirmed

Substantial

if

supported

evidence

exists

by
to

substantial
support

a

finding

unless

Id.
the

evidence was such that any reasonable adjudicator would have
been compelled to conclude to the contrary.

Id.

Whether the

government is unable or unwilling to control the private actor
is a factual finding.

Hernandez-Avalos v. Lynch, 784 F.3d 944,

951 (4th Cir. 2015).
After reviewing the record, we conclude that substantial
evidence supports the finding that Banegas-Rivera failed to show
that the Honduran government was unable or unwilling to control
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her abuser and we are not compelled to reach a different result.
Banegas-Rivera’s claim that she established past persecution on
account of a protected ground is not relevant because the Board
decided her appeal on the issue that she failed to show that the
Honduran

government

was

unable

or

unwilling

to

control

the

abuser.

Banegas-Rivera’s challenge to the denial of protection

under the CAT is not reviewable because she did not raise this
issue on appeal to the Board.

Her failure to exhaust this issue

deprives

to

us

§ 1252(d)(1)

of

jurisdiction

(2012)

(“A

court

consider
may

it.

See

a

final

review

8

U.S.C.

order

of

removal only if . . . the alien has exhausted all administrative
remedies
Holder,

available
597

established

F.3d
that

to

the

222,
an

alien

226

alien

as

(4th
must

of

Cir.

raise

right.”);
2010)
each

Kporlor

(“It

is

argument

to

v.

well
the

[Board] before we have jurisdiction to consider it.” (internal
quotations and citation omitted)).
Accordingly, we deny the petition for review.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
PETITION DENIED

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