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Fuentes-Erazo v. Sessions

United States Court of Appeals, Eighth Circuit

February 16, 2017

Maria Dolores Fuentes-Erazo; Gerardo Yosimar Fuentes-Erazo Petitioners
Jeff B. Sessions, Attorney General of the United States1 Respondent

          Submitted: October 20, 2016

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

          Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

          WOLLMAN, Circuit Judge. [1]

         Maria Dolores Fuentes-Erazo and her minor son Gerardo Yosimar Fuentes-Erazo, [2] each a native and citizen of Honduras, petition for review of an order of the Board of Immigration Appeals (BIA) dismissing their appeal from an immigration judge's (IJ) decision to deny their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition for review.

         Fuentes and her infant son entered the United States without admission or parole on June 14, 2014, near Hidalgo, Texas, and were immediately apprehended by Department of Homeland Security (DHS) agents. After DHS initiated removal proceedings, Fuentes conceded that she and her son were removable, and she applied for asylum, withholding of removal, and relief under the CAT. She asserted that she had been abused in the past by Elvis Santos, her former domestic partner, and that she feared future abuse by Santos if she were forced to return to Honduras.

         At a hearing before the IJ, Fuentes testified that she began a relationship with Elvis Santos when she was in her mid-teens. When she was about sixteen years old, she left her family home in the village of Tontolar and went to live with Santos in the village of Callejones, about an hour's walk away. She became pregnant shortly thereafter and eventually gave birth to her first son, Oslis. She testified that Santos was initially "really good, very kind, " but that he began to mistreat her when he learned that she was pregnant. Santos denied paternity and began a pattern of psychological, physical, and sexual abuse, isolating Fuentes from other people, forbidding her from working, striking her with his hands and other objects, kicking her, threatening her with a knife and a gun, and raping her. The physical and sexual abuse occurred several times a month, often after Santos had been drinking. Fuentes stated that she did not report the abuse to police because the nearest police station was a three-hour drive away in San Marcos, because it was uncommon for people in her village to report things to the police, and because she was afraid that Santos would take "revenge" on her if she reported him. She also did not seek medical treatment for any injuries Santos caused her.

         Fuentes attempted to leave Santos, once by hiding in some trees for several hours, once by hiding at Santos's sister's house for several hours, and once by hiding at a neighbor's home for several hours, but she eventually returned home on her own each time. In 2009, however, she left Santos for good, taking Oslis and traveling to her sister's house in Santa Barbara, which was five or six hours away by bus. The two lived with Fuentes's sister in Santa Barbara for a year and a half. Although Fuentes heard that Santos was asking about her, he did not contact her in Santa Barbara, because she "didn't tell anybody, " including her family, where she was.

         Fuentes and Oslis left Santa Barbara and moved to the town of San Marcos, about three hours by bus from Santos's Callejones home, so that Fuentes could work. At Fuentes's request, her parents came to San Marcos and took nine-year-old Oslis back to Tontolar to live with them, where he continues to reside. Despite his proximity to Oslis, Santos has never called or visited him while Oslis has been living with Fuentes's parents. Meanwhile, Fuentes lived in and cleaned a house in San Marcos for "about a year and a half, " after which she worked in a restaurant for roughly eleven months, where patrons told her that Santos had been looking for her. Fuentes met a man named Luis at the restaurant and began a relationship with him in 2013 that resulted in a second pregnancy. Fuentes stated that she did not feel safe in San Marcos because she "was closer" to Santos, but she also stated that Santos did not contact her in San Marcos and did not know that she was there.

         Fuentes eventually left San Marcos and moved to San Pedro, a town approximately seven hours by bus from Santos's Callejones home. She lived in and cleaned a house in San Pedro for several months until she gave birth to her second son, Gerardo, in September 2013. Santos did not contact Fuentes by phone or in person while she was living in San Pedro. Fuentes then returned to her sister's house in Santa Barbara, where she stayed until Gerardo was about six months old. Thereafter, she moved back to San Marcos at the invitation of Margarita Reyes, a family friend or "godmother, " who helped Fuentes secure the cleaning and restaurant jobs she previously held in San Marcos. Fuentes stated that Santos learned about this time that she had had a son with another man, leading her to fear that Santos would kill her and Gerardo "out of jealousy." About one month after returning to San Marcos, Fuentes used money provided by Reyes to travel to the United States, which, as earlier stated, she entered from Mexico on June 14, 2014.

         Fuentes testified that there was nowhere she could live in Honduras if she returned to that country because she did not "have a place to go, " and did not "know anybody over there." She stated that she could not live with her parents, because they lived near Santos. She testified that she would not be able to work in a restaurant or as a house cleaner because she had to take care of her children. She also did not believe that she could support her children financially or that anyone else could care for them while she worked, explaining that her mother was ill and her father was too old. She did not believe that she could live with any of her six siblings or another family member. She stated that although Reyes had helped her obtain employment in Honduras in the past, she likely could not provide such help in the future because she had her own job. Although Fuentes "never saw [Santos] again" after she left him in 2009 and managed to avoid him for almost five years before she left Honduras, she stated that she did not think she could avoid him if she returned to Honduras because she had heard Santos was looking for her and that he had since acquired a vehicle and could now travel around Honduras to find her.

         The IJ denied relief, concluding that even if Fuentes had established that she suffered past persecution, she had not demonstrated that the harm she suffered was on account of her membership in her proposed particular social group, composed of "Honduran women in domestic relationships who are unable to leave their relationships." The IJ acknowledged Fuentes's abusive relationship with Santos, but noted that Fuentes did in fact "leave that relationship and reside[] in Honduras for approximately five years" thereafter, during which she entered into a relationship with and had a child by another man. Noting also that Fuentes "moved freely to different locations, had employment, " and "had no contact voluntarily or not with [Santos after] she left him in 2009, " the IJ concluded that Fuentes had failed to demonstrate her membership in her proposed social group and thus had failed to establish the requisite nexus between any abuse she had suffered and a protected ground. The IJ also concluded that Fuentes had failed to demonstrate that the Honduran government was unable or unwilling to protect her from harm inflicted by Santos. Acknowledging that the documentary evidence "suggests a lot of difficulty on the part of the government in addressing the problems of domestic violence in Honduras, " the IJ noted that the government was "not helpless, " and further noted that Fuentes "never gave the government an opportunity to try to protect her" because she "never called the police." Finally, the IJ observed that Fuentes "successfully avoided [Santos] for five years after she left him, " that Santos "had no interest in locating" her, and thus that she would be able to relocate within Honduras if she were returned. The IJ denied Fuentes's application for asylum and, because she "failed to meet the lower burden for asylum, " also denied withholding of removal. The IJ also denied relief under the CAT, citing a "dearth of evidence" regarding torture by, or with the acquiescence of, the Honduran government. The BIA dismissed Fuentes's subsequent appeal, finding "no clear error of fact or mistake of law" in the IJ's decision to deny all forms of relief.

         We review the BIA's decision for substantial evidence on the record as a whole and will uphold its factual findings unless the petitioner "demonstrates that the evidence he presented not only supports a contrary conclusion but compels it." Ngugi v. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016) (citation omitted); see also 8 U.S.C. § 1252(b)(4)(B) (stating that findings of fact cannot be disturbed "unless any reasonable adjudicator would be compelled to conclude to the contrary"). We review the BIA's legal determinations de novo, giving due deference to the BIA's interpretation of the statutes and regulations it administers. Salman v. Holder, 687 F.3d 991, 994 (8th Cir. 2012). To the extent the BIA adopted the findings or reasoning of the IJ, we consider the two decisions together. Garcia v. Holder, 746 F.3d 869, 872 (8th Cir. 2014).

         To qualify for asylum, Fuentes bears the burden of demonstrating that she is a "refugee, " who is unable or unwilling to return to Honduras because of past persecution or a well-founded fear of future persecution on account of her "membership in a particular social group." See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). To qualify for withholding of removal, Fuentes bears the even higher burden of demonstrating a "clear probability" that she will be persecuted on account of her membership in a particular social group. See Khrystotodorov v. Mukasey, 551 F.3d 775, 781 (8th Cir. 2008) (noting "more stringent" standard of proof for withholding of removal). To qualify for CAT relief, Fuentes must establish that it is more likely than not that she would be subjected to torture "with the consent or acquiescence of a public official" if returned to Honduras, 8 C.F.R. § 208.18(a)(1), a generally "more onerous" standard than that for asylum or withholding of removal, Khrystotodorov, 551 F.3d at 782. "'Acquiescence' requires prior awareness of the torture and breach of a legal responsibility to intervene." Saldana v. Lynch, 820 F.3d 970, 978 (8th Cir. 2016). "A government's 'willful blindness toward the torture of citizens by third parties' amounts to unlawful acquiescence." ...

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