Osman Maldonado-Pena, et al v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : DENIED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge; Eric L. Clay, Circuit Judge and Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky.

Case: 11-3381

Document: 006111340855

Filed: 06/19/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0645n.06
FILED

No. 11-3381

Jun 19, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OSMAN JAVIER MALDONADO-PENA;
JUAN MALDONADO-PENA,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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LEONARD GREEN, Clerk

ON PETITION FOR REVIEW
FROM A FINAL ORDER OF THE
BOARD OF IMMIGRATION
APPEALS

Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*

PER CURIAM. Osman Javier Maldonado-Pena and his brother Juan Maldonado-Pena,
proceeding through counsel, petition for review of a Board of Immigration Appeals (BIA) order
dismissing their appeal from the decision of an immigration judge (IJ) that denied their applications
for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
The parties have waived oral argument and this panel unanimously agrees that oral argument is not
needed in this case. Fed. R. App. P. 34(a).
The Maldonado-Pena brothers are natives and citizens of Honduras who entered the United
States without authorization. On June 25, 2007, the Department of Homeland Security commenced
removal proceedings against the Maldonado-Penas and issued Notices to Appear. The Notices to
Appear alleged that Osman entered this country in 2001 and Juan entered this country in 2005 and

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The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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-2were removable because they were “present in the United States without being admitted or paroled,
or who arrived in the United States at any time or place other than as designated by the Attorney
General.” The brothers admitted the allegations contained in the Notices to Appear, with the
exception that Juan admitted that he entered this country in 2004, conceded removability, and
applied for asylum, withholding of removal, and protection under the CAT.
Following a hearing, the IJ denied the brothers’ applications for relief, and granted voluntary
departure with alternate removal orders to Honduras. The BIA dismissed their appeals.
The Maldonado-Penas timely filed petitions for review of the BIA’s order. They challenge
the denial of their applications for asylum and withholding of removal. This court denied Osman’s
motion to stay removal.
We review legal determinations of an immigration court de novo and factual determinations
for substantial evidence. Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008). The immigration
court’s factual findings and determination regarding eligibility for relief from removal will be upheld
unless the evidence “not only supports a contrary conclusion, but compels it.” Ceraj v. Mukasey, 511
F.3d 583, 588 (6th Cir. 2007) (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)).
An asylum application must be filed “within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). Here, the IJ found the Maldonado-Pena brothers’ asylum
applications untimely because they were not filed within one year of their respective arrivals in this
country. The IJ declined to excuse the untimely filings because the brothers did not demonstrate
changed or extraordinary circumstances. The BIA agreed with the IJ’s findings and concluded that
the brothers’ asylum applications were untimely.
In the absence of “constitutional claims or matters of statutory construction,” this court lacks
jurisdiction to review the BIA’s determination that the Maldonado-Pena brothers’ asylum
applications were not filed within the one-year time period. Khozhaynova v. Holder, 641 F.3d 187,
191 (6th Cir. 2011) (quoting Shkulaku-Purballori v. Mukasey, 514 F.3d 499, 502 (6th Cir. 2007));

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-3see also 8 U.S.C. § 1158(a)(3). The brothers did not raise any constitutional or statutory construction
issues. Thus, we lack jurisdiction to review the denial of the brothers’ applications for asylum.
To qualify for withholding of removal, an alien must establish that his “life or freedom would
be threatened in [the proposed] country [of removal] because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An
applicant for withholding of removal must establish a clear probability of persecution, Singh v.
Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005), by demonstrating “that ‘it is more likely than not’ that
he or she will be persecuted upon return” to a particular country. Liti v. Gonzales, 411 F.3d 631, 641
(6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)). Persecution is “the infliction of harm or
suffering by the government, or persons the government is unwilling or unable to control, to
overcome a characteristic of the victim.” Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009)
(quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004)).
The Maldonado-Penas sought withholding of removal based upon their membership in a
particular social group—a family targeted by gang violence. The IJ found both brothers credible but
ineligible for withholding of removal. The IJ determined that the brothers did not demonstrate past
persecution during their residency in Honduras and did not establish a well-founded fear of future
persecution. The IJ found that the brothers failed to establish membership in a particular social
group based upon their fear of gang violence. The IJ also found that the brothers failed to establish
that their family constituted a particular social group because the record lacked any “indication that
the family has been targeted because they are this particular family, that is because of that immutable
characteristic which the gang members are trying to overcome.” The IJ found that the apparent
affluence of the brothers’ family, fear of crime, and general violence could not support their
withholding of removal claims.
The BIA affirmed the IJ’s decision and found that the Maldonado-Pena brothers were not
eligible for withholding of removal. The BIA agreed with the IJ’s determination that the brothers

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-4did not establish “a ‘particular social group’ or other nexus for purposes of relief under the Act on
the basis of [their] claims.” The BIA also agreed with the IJ’s determination that the brothers
provided no evidence “indicating that they or their family were targeted based on their familial
relationship” rather than exposed to the same risk of harm as “the general citizenry of Honduras.”
Substantial evidence supports the decision of the BIA. See Zoarab, 524 F.3d at 780. Thus,
the brothers have not met their burden of showing that any reasonable adjudicator would be
compelled to reach a different determination than the BIA as to their applications for withholding
of removal. See Khalili, 557 F.3d at 435.
The Maldonado-Pena brothers do not challenge the denial of withholding of removal under
the CAT in their appellate brief. Arguments that are not presented in an appellate brief are waived.
Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th Cir. 2005). Therefore, the brothers have waived
review of their claim that they are entitled to relief from removal under the CAT.
Accordingly, we deny the petition for review.