Teresa De Jesus Padilla-Franco v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 20-2415
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Teresa De Jesus Padilla-Franco; Darlyn Yorleny Guillen-Padilla; Monica Ahimar
Guillen-Padilla
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondents
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 13, 2021
Filed: June 2, 2021
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Before KELLY, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Teresa Padilla-Franco is a Honduran national who entered the United States
with her children and applied for asylum and withholding of removal. Her requests
were denied, and the Board of Immigration Appeals affirmed the Immigration
Judge’s decision. We deny her petition for review.

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I.
Before Padilla-Franco fled Honduras, her father made a land-swap deal with
a man known as “Pinto.” But Pinto traded land he did not actually own. When
Padilla-Franco’s father discovered the swindle, he refused to sign over the title
documents to his own land and Pinto began threatening him.
Pinto’s attention shifted to Padilla-Franco after her father was killed in
Guatemala during a robbery. Pinto threatened Padilla-Franco, and she feared for her
life after one of Pinto’s men tried to run her off the road and another came to her
home with a gun and said he was there to kill her. Believing the threats were
designed to coerce her into signing over the title, Padilla-Franco fled to her cousin’s
home in Guatemala and then to the United States. Padilla-Franco was told that Pinto
burned the land and was waiting for her to return to kill her.
The Immigration Judge denied Padilla-Franco’s requests for asylum and
withholding of removal. The IJ found that Padilla-Franco did not meet the
requirement of showing past persecution because she was not physically harmed in
Honduras, the attempt to run her off the road did not suffice, and the emotional harm
she experienced did not meet the threshold established by law. The IJ also concluded
that Padilla-Franco did not show a strong enough likelihood of future persecution
and that she could return to Honduras. Finally, the IJ recognized that while Padilla-
Franco’s family membership was a sufficiently particular social group, Padilla-
Franco’s family identity was not a “central reason” why Pinto would do her harm,
and so she did not show persecution based on a protected characteristic. Add. 18.
The Board of Immigration Appeals affirmed, saying that the IJ’s factfinding
was not clearly erroneous and that the IJ properly analyzed the legal issues. Padilla-
Franco now petitions for review of the BIA’s decision.

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II.
“This court reviews the BIA’s decision as the final agency action, but to the
extent the BIA adopts the findings of the IJ, this court reviews those findings as part
of the final agency action.” R.K.N. v. Holder, 701 F.3d 535, 537 (8th Cir. 2012).
“We review questions of law de novo, and we review the agency’s factual
determinations under the substantial evidence standard, reversing only where a
petitioner demonstrates that the evidence was so compelling that no reasonable fact
finder could fail to find in favor of the petitioner.” De Castro-Gutierrez v. Holder,
713 F.3d 375, 379 (8th Cir. 2013) (citation omitted). “To obtain asylum, [an alien]
must demonstrate either past persecution or a well-founded fear of future persecution
on account of [her] race, religion, nationality, political opinion, or membership in a
particular social group.” Castillo-Gutierrez v. Lynch, 809 F.3d 449, 452 (8th Cir.
2016). The extent of Padilla-Franco’s harm is a factual determination, but whether
that harm rises to “the legal definition of persecution” is a legal issue we review de
novo. Njong v. Whitaker, 911 F.3d 919, 923 (8th Cir. 2018).
A.
Padilla-Franco first argues that the BIA reviewed the IJ’s legal conclusions
for clear error rather than de novo, as it is required to do. We believe her
interpretation of the BIA’s opinion misses the mark.
The two-sentence passage of the BIA’s opinion Padilla-Franco highlights
reads: “We discern no clear error in the Immigration Judge’s findings of fact. The
record supports the Immigration Judge’s determination that the respondent failed to
establish past persecution or a well-founded fear of future persecution on account of
a protected ground.” Add. 3. Padilla-Franco says that, read in concert, the two
sentences mean the BIA applied the clear error standard to the whole case.
Padilla-Franco’s reading of the opinion is strained. First, the BIA announced
the proper standards of review in the paragraph immediately preceding the passage.

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See Add. 3 (first recognizing that the IJ’s “findings of fact” are reviewed for “clear
error[]”; and then explaining that “all other issues” are reviewed “de novo.”).
Second, it is clear from context that the BIA saw no clearly erroneous findings of
fact and said so in the passage’s first sentence, and then moved on to analyze legal
issues in the second sentence. This two-step approach reflects the order in which
the BIA announced the standards of review. Finally, the string-cite that follows the
passage is not evidence that it “confused or mixed the standards of review,” as
Padilla-Franco says. Padilla-Franco Br. 15 (citation omitted). Instead, it shows that
the BIA compared the facts in this case to prior cases to see whether the IJ applied
the law properly. Checking if there is precedent where less egregious facts led to a
determination of persecution is consistent with de novo review of legal issues.
Padilla-Franco’s alternative argument about the standard of review is also
mistaken. She points to a footnote where the BIA said that it was not required to
decide an additional issue “in light of the lack of clear error in the Immigration
Judge’s determination that the respondent failed to satisfy the [requirement that her
protected characteristics motivated the harm].” Add. 3 n.2. Padilla-Franco says this
is proof that the BIA reviewed the whole case for clear error. But in Gomez-Garcia
v. Sessions, we understood that the IJ’s determination about whether protected
characteristics motivated any harm is a factual determination. See 861 F.3d 730,
734 (8th Cir. 2017); see also Turay v. Ashcroft, 405 F.3d 663, 668 (8th Cir. 2005)
(applying the substantial evidence standard to the IJ’s motive determination,
indicating that the determination is factual). So, the BIA’s decision to review that
factual issue for clear error was correct.
B.
Padilla-Franco next argues that even if the BIA did review the IJ’s legal
conclusions de novo, the BIA’s decision still did not consult the proper factors for
deciding whether Padilla-Franco suffered past persecution based on a protected
ground. She says she faced past persecution and will face persecution if she returns.
We disagree.

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We first consider whether Padilla-Franco’s past experiences amounted to
“persecution.” We review the question of whether the extent of Padilla-Franco’s
harm, as found by the IJ, “meet[s] the legal definition of persecution” de novo
because it is a legal issue. Njong, 911 F.3d at 923. We review the IJ’s determinations
about the underlying facts for substantial evidence. De Castro-Gutierrez, 713 F.3d
at 379 (citation omitted).
To show past persecution, Padilla-Franco points to the threats she received,
which the IJ and BIA properly concluded did not rise to the “extreme” level of
“persecution.” La v. Holder, 701 F.3d 566, 570 (8th Cir. 2012) (citation omitted).
That is because “[t]hreats alone constitute persecution in only a small category of
cases, and only when the threats are so menacing as to cause significant actual
suffering or harm.” Id. at 571 (citation omitted). We acknowledge that Padilla-
Franco faced emotional harm that resulted in nightmares and stress. But we do not
think those symptoms, standing alone, rise to the level of “significant actual
suffering or harm.” Id. (citation omitted). A contrary rule would forge an end-run
around our precedents establishing that “[p]ersecution is an extreme concept.” Id.
at 570 (citation omitted).
Even if we assume that Padilla-Franco suffered harm that amounted to past
persecution, we would still conclude that it was not motivated by her membership in
a particular social group. We review the factual determination about motive for
substantial evidence. See Gomez-Garcia, 861 F.3d at 734. The record shows that
Pinto targeted Padilla-Franco because he assumed she owned the land that once
belonged to her father—not because she was related to him. Padilla-Franco
concedes this. See Padilla-Franco Br. 5 (“She believed they were trying to kidnap
her, kill her, or scare [her]—to persuade her to sign the title documents . . . .”). A
reasonable factfinder could find as much, so we must affirm.
Finally, we turn to Padilla-Franco’s argument that she established a well-
founded fear of future persecution. “To overcome the BIA’s finding that [she]
lacked a well-founded fear of persecution,” Padilla-Franco “must show the evidence

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[she] presented was so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.”1 Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th
Cir. 2008) (citation omitted).
An applicant for asylum cannot establish a well-founded fear of future
persecution if she can relocate within her country of nationality and “under all the
circumstances it would be reasonable to expect the applicant to do so.” Castillo-
Gutierrez, 809 F.3d at 452 (quoting 8 C.F.R. § 1208.13(b)(2)(ii)). “Regardless of
whether an applicant has established persecution in the past, in cases in which the
persecutor is . . . a private actor, there shall be a presumption that internal relocation
would be reasonable unless the applicant establishes, by a preponderance of the
evidence, that it would be unreasonable to relocate.” 8 C.F.R. § 1208.13(b)(3)(iii).
Pinto was a private actor, so the burden here was on Padilla-Franco.
Padilla-Franco did not carry that burden. The BIA properly affirmed the IJ’s
decision because the record shows that Padilla-Franco “never attempted to
permanently relocate in Honduras” and she otherwise offered insufficient evidence
to “meet [the] burden of proof on the issue of relocation.” Add. 15. Padilla-Franco
proposes several factors the IJ should have explicitly considered,2 but she does not
show that the result would have been different if the IJ had expressly walked through
1 Contrary to Padilla-Franco’s claim that the applicable standard for “well-
founded” fear is a mere “reasonable possibility” of persecution, Padilla-Franco Br.
11, the case she cites for that proposition explicitly “d[id] not decide the meaning of
the phrase ‘well-founded fear of persecution.’” INS v. Stevic, 467 U.S. 407, 430
(1984).
2 Padilla-Franco says the BIA and IJ should have considered economic barriers
to relocation and social and cultural constraints such as “age, gender, health, and
social and familial ties.” Padilla-Franco Br. 31 (citation omitted). But the very
regulation Padilla-Franco cites (which was amended this year to delete the factors
Padilla-Franco mentions) notes that those factors “are not necessarily determinative
of whether it would be reasonable for the applicant to relocate.” 8 C.F.R.
§ 208.13(b)(3) (2020). In any case, Padilla-Franco has not shown that those factors
would be determinative here.

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each of them rather than concluding, as it did, that there was only slight evidence
supporting her argument that relocating would be unreasonable. Because a rational
factfinder could determine that it was reasonable for Padilla-Franco to relocate, she
lacked a well-founded fear of persecution.
In sum, we conclude that Padilla-Franco did not face past persecution based
on her membership in a particular social group. She likewise did not show a well-
founded fear of future persecution. We acknowledge that the BIA’s opinion was
short, but we see no evidence that the BIA failed to perform the proper analysis or
ignored our caselaw, as Padilla-Franco claims. We have upheld the legal analysis
of substantially similar BIA opinions before, and we do so here. See Lemus-Arita v.
Sessions, 854 F.3d 476, 481 (8th Cir. 2017).
III.
The petition for review is denied.
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