Josefina Pablo-Atz, et al. v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10681
Non-Argument Calendar
________________________
Agency No. A208-133-852
JOSEFINA PABLO-ATZ,
MARIA JOSE GUTIERREZ-PABLO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 18, 2021)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 1 of 7

-- 1 of 7 --

2
Josefina Pablo-Atz and Maria Jose Gutierrez-Pablo (“Pablo”)1 seek review
of the Board of Immigration Appeals’s (“BIA”) final order affirming the
Immigration Judge’s (“IJ”) denial of their application for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). On
appeal, Pablo argues that she suffered persecution and has a well-founded fear of
future persecution based on her status as a woman from Guatemala in an abusive
relationship. She also argues that she qualifies for CAT relief because her
testimony provided sufficient evidence to show that she would be tortured if she
were removed to Guatemala.
I.
We review the decision of the BIA and will also review the decision of the IJ
to the extent that the BIA expressly adopts the opinion of the IJ. Ayala v. U.S.
Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 2020). The BIA’s legal conclusions
are reviewed de novo. Lin v. U.S. Att’y Gen., 555 F.3d 1310, 1314 (11th Cir.
2009). We review factual determinations under the substantial evidence test. Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1254-55 (11th Cir. 2006). We must affirm the
decision “if it is supported by reasonable, substantial, and probative evidence on
1 Maria Jose Gutierrez-Pablo is the daughter of Josefina Pablo-Atz and is a derivative
beneficiary of Pablo’s asylum application.
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 2 of 7

-- 2 of 7 --

3
the record considered as a whole.” Id. (quotation marks omitted). We will view
“the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision.” Id. at 1255 (quotation marks
omitted). We will reverse a finding of fact by the BIA “only when the record
compels a reversal; the mere fact that the record may support a contrary conclusion
is not enough to justify a reversal of the administrative findings.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
To establish asylum eligibility, the noncitizen must establish (1) past
persecution on account of a statutorily listed protected ground, or (2) a
well-founded fear that the statutorily protected ground will cause future
persecution. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). A
well-founded fear means a reasonable possibility of future persecution. Li Shan
Chen v. U.S. Att’y Gen., 672 F.3d 961, 965 (11th Cir. 2011). Protected grounds
include “race, religion, nationality, membership in a particular social group, or
political opinion.” See INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B).
“[E]vidence that either is consistent with acts of private violence or the petitioner’s
failure to cooperate with guerillas, or that merely shows that a person has been the
victim of criminal activity, does not constitute evidence of persecution based on a
statutorily protected ground.” Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310
(11th Cir. 2013).
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 3 of 7

-- 3 of 7 --

4
A noncitizen is entitled to withholding of removal under the INA if she can
show that her “life or freedom would be threatened in that country because of [her]
race, religion, nationality, membership in a particular social group, or political
opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The noncitizen bears
the burden of demonstrating that it is “more likely than not” that she will be
persecuted or tortured upon being returned to her country. Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). Furthermore, if an applicant is unable
to prove entitlement to asylum relief, the applicant is generally precluded from
qualifying for withholding of removal. Id. at 1232-33.
Here, substantial evidence supports the BIA’s conclusion that Pablo failed to
show that the harm she feared at the hands of husband’s family and gang members
arose based on her status in the social group “women in abusive relationships from
Guatemala.” Ruiz, 440 F.3d at 1254-55 (holding that this Court will affirm the
BIA’s decision “if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole”). Pablo claimed that gang members
threatened her at the direction of her husband’s family and because she refused to
pay them. She further claimed that her husband’s family members harmed her and
would continue to harm her based on her status in the social group “women in
abusive relationships from Guatemala.” However, the IJ found, and the BIA
agreed, that Pablo failed to satisfy her burden of proof because the actions of
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 4 of 7

-- 4 of 7 --

5
Pablo’s husband’s family members and the gang members “were actions of private
actors,” as the only evidence of any violence or mistreatment of her was by her
husband’s family or at the direction of her husband’s family, or by the gangs for
economic reasons, and not by any larger societal group. In her original application
Pablo indicated that she was threatened by gang members for refusing to pay them
because she owned a store or simply because she was a woman alone. The only
physical violence was by her husband’s family. At no point in her testimony did
she state that her husband was abusive towards her. Thus, Pablo failed to establish
her eligibility for asylum because she did not submit any evidence to show a
connection between her purported social group, “women in abusive relationships
from Guatemala” and the abuse that she endured. Rodriguez, 735 F.3d at 1310..
Furthermore, Pablo’s claim for withholding of removal fails for the same reason as
an applicant that fails to establish eligibility for asylum also cannot establish
eligibility for withholding of removal. Sepulveda, 401 F.3d at 1232-33.
II.
The burden of proof is on the applicant to establish that it is more likely than
not that he would be tortured if removed to the proposed country of removal. 8
C.F.R. § 208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242
(11th Cir. 2004). In assessing whether it is more likely than not that an applicant
would be tortured in the proposed country of removal, all evidence relevant to the
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 5 of 7

-- 5 of 7 --

6
possibility of future torture should be considered, including, but not limited to: (i)
evidence of past torture inflicted upon the applicant; (ii) evidence that the applicant
could relocate to a part of the country of removal where he or she is not likely to be
tortured; (iii) evidence of gross, flagrant or mass violations of human rights within
the country of removal, where applicable; and (iv) other relevant information
regarding conditions in the country of removal. 8 C.F.R. § 1208.16(c)(3).
Moreover, to obtain CAT relief, the noncitizen must demonstrate that the torture
would be inflicted by the government or that the government was aware of the
torture and failed to intervene. Id.
Substantial evidence supports the BIA’s determination that Pablo failed to
meet her burden of proof to establish eligibility for CAT relief. To establish CAT
relief, Pablo was required to prove that it was more likely than not that she would
be tortured if removed to Guatemala. See 8 C.F.R. § 1208.16(c)(2). However,
based on the record, Pablo failed to do so. First, the BIA reasonably found that
Pablo had not been tortured in the past because she admitted it during her hearing.
Furthermore, Pablo admitted that she did not have any problems when she
relocated to live closer to her parents. Thus, substantial evidence does not establish
that it is more likely than not that Pablo would be tortured if removed to Guatemala
because she admitted that she had never been tortured in the past and she had the
ability to relocate to a safe location within GuatemalaReyes-Sanchez, 369 F.3d at
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 6 of 7

-- 6 of 7 --

7
1242; 8 C.F.R. § 1208.16(c)(3). Thus, Pablo is not eligible for CAT relief.
Accordingly, we deny Pablo’s petition for review.
PETITION DENIED.
USCA11 Case: 20-10681 Date Filed: 02/18/2021 Page: 7 of 7

-- 7 of 7 --