Espana-Alonzo v. Attorney Gen. United States

• Decision Date: 18 November 2021
• Docket Number: 21-1282
• Parties: ISAAC ESPANA-ALONZO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA
• Court: U.S. Court of Appeals — Third Circuit

ISAAC ESPANA-ALONZO, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA

No. 21-1282

United States Court of Appeals, Third Circuit

November 18, 2021

NOT PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) November 15, 2021

On Petition for Review of an Order of the Board of Immigration Appeals (BIA A216-220-958) Immigration Judge: Alice Song Hartye

Before: AMBRO, JORDAN, and RENDELL, Circuit Judges

OPINION ^[*]

JORDAN, CIRCUIT JUDGE.

Petitioner Isaac Espana-Alonzo suffered a terrible crime in his home country of Honduras. Unfortunately, he was unable to identify the assailants or their motives, and,

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because of that, he did not attempt to involve the authorities. Once in the United States, he submitted an application for asylum and withholding of removal, which was denied because he could not establish his membership in a particular social group, much less point to that membership as a reason for the attack. He also applied for protection under the Convention Against Torture ("CAT"), which was likewise denied because he could not show that governmental authorities would acquiesce or participate in torturing him if he returned to Honduras. Because we agree with those bases for denial, we will deny his petition for review.

I. BACKGROUND

Espana-Alonzo is a native and citizen of Honduras. He entered the United States in the fall of 2017 without being admitted or paroled, and the U.S. Department of Homeland Security ("DHS") commenced removal proceedings against him.

In those proceedings, Espana-Alonzo applied for asylum, withholding of removal, and protection under the CAT. He appeared pro se at the merits hearing in his case and answered questions from the Immigration Judge ("IJ") and a DHS attorney.^[1] Most notably, he testified that, when he was living in the city of San Pedro Sula in 2016, he was cornered by three armed, masked men in a store. They asked him if he was homosexual, which he denied. They then insulted him with "words that [we]re too big and inappropriate" for Espana-Alonzo to repeat to the IJ. (A.R. at 117.) He tried to walk away, but they robbed him, and one of them raped him, leaving him laying on the floor.

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He eventually left San Pedro Sula and went back to his hometown, Copan, where he lived with his family for another year before traveling to the United States.

After the hearing, the IJ denied Espana-Alonzo any relief. His appeal, filed by counsel, was dismissed by the Board of Immigration Appeals ("BIA"). He now petitions for review of the denial of asylum and CAT protection.

II. DISCUSSION^[2]

A. Asylum

We see no errors in the IJ's and BIA's decisions that Espana-Alonzo did not demonstrate past persecution "on account of" his membership in a particular social group ("PSG").^[3] Before the IJ, Espana-Alonzo's application did not indicate any statutorily protected basis that accounted for his mistreatment. The IJ determined that Espana-

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Alonzo was relying on membership in a PSG as his protected ground and that his proposed PSG was "victim[s] of criminal activity[, ]" which the IJ decided lacked particularity and therefore was not legally cognizable. (A.R. at 53 (citing Matter of M-E-V-G-, 26 I. &N. Dec. 227, 236-37 (B.I.A. 2014)).)

On appeal to the BIA, Espana-Alonzo did not challenge that decision.^[4] Instead, he argued (as he does here) that the IJ erred in failing to consider his imputed membership in the PSG of "homosexual men in Honduras[.]" (Opening Br. at 10.) But it is the applicant's burden to delineate the PSG he is relying on, 8 C.F.R. § 1208.13(a), and Espana-Alonzo did not propose that specific PSG, or anything resembling it, until his appeal. The BIA did not err in declining to consider the newly proposed PSG, because it could not "make relevant factual findings" pertaining to the delineation of the group or Espana-Alonzo's membership in it. Matter of W-Y-C- &H-O-B-, 27 I. &N. Dec. 189, 191 (B.I.A. 2018); see Honcharov v. Barr, 924 F.3d 1293, 1296-97 (9th Cir. 2019) (collecting cases "conclud[ing] that the [BIA] may apply a procedural default rule to arguments raised for the first time on appeal").

Even assuming that Espana-Alonzo had timely proposed that PSG, substantial evidence supports the BIA's conclusion that his attackers were motivated by general criminal intent, not any imputation of homosexuality. For example, when asked by the IJ, Espana-Alonzo testified that he "d[id]n't know [what] to say as to why" the attackers

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targeted him. (A.R. at 117.) And when pressed further, he speculated, "I think they just wanted to harm me without even knowing me because I didn't know them." (A.R. at 119.) Despite that testimony, Espana-Alonzo now relies instead on the context of the attack - specifically, the attackers asking if he was homosexual - as evidence that imputed homosexuality was the basis for the assault. But under the "extraordinarily deferential" substantial evidence standard, Romero v. Att'y Gen., 972 F.3d...