Deysi Maribel Rodriguez; A.A.H.R.; A.G.H.R. v. Pamela Bondi, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 24-1654
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Deysi Maribel Rodriguez; A.A.H.R.; A.G.H.R.
Petitioners
v.
Pamela Bondi, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 18, 2025
Filed: August 7, 2025
[Unpublished]
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Deysi Maribel Rodriguez petitions for review of the decision of the Board of
Immigration Appeals (BIA) denying her claim seeking asylum and withholding of
removal. We deny her petition because the BIA’s decision is supported by
substantial evidence.

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Rodriguez is a native and citizen of Guatemala, as are her two sons who are
derivatives on her asylum application and petition for review. She originally entered
the United States alone in March 2012 without inspection. In August 2016, she
returned to Guatemala after learning that one of her sons, A.G.H.R., was bullied and
threatened in school by five classmates back in Guatemala. While she was in
Guatemala, Rodriguez “was threatened by a masked man whom she suspected was
a gang member[] that if she reported anything, he would kill her son [A.G.H.R.] and
the rest of her family.” Rodriguez reported the bullying to a government human
rights office in Guatemala, which “listened to her, transcribed her statement, and
presented her with a document as proof that a claim was filed,” but Rodriguez left
the country to return to the United States — this time with her sons — before she
could follow up on her report. Rodriguez did not report these incidents to the police
in Guatemala.
Rodriguez and her two sons entered the United States in October 2016 and
applied for admission. One day after their arrival, the Department of Homeland
Security served her with a notice to appear charging her with removability. In
February 2017, she filed applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Rodriguez claimed the
bullying of A.G.H.R. and the threat she received constituted past persecution based
on her claimed particular social group of A.G.H.R.’s immediate family and that she
had a well-founded fear of future persecution if she returned to Guatemala. An
immigration judge (IJ) denied her applications, and Rodriguez appealed the denial
of asylum and withholding of removal to the BIA. The BIA affirmed the IJ’s
decision, concluding Rodriguez’s “past harm did not rise to the level of past
persecution,” and Rodriguez failed to show Guatemalan authorities were unable or
unwilling to protect her and her family from harm. Rodriguez now petitions for
review of the BIA’s decision denying her claim of asylum and withholding of
removal.1
1 Rodriguez did not challenge the denial of her application for CAT protection
before the BIA or this court. For the first time in her petition for review, Rodriguez
also argues that she is entitled to humanitarian asylum. She failed to exhaust

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Rodriguez argues that the BIA erred by concluding she failed to demonstrate
past persecution or a well-founded fear of future persecution.2 “We review the
BIA’s legal determinations de novo and employ the deferential ‘substantial
evidence’ standard when reviewing the BIA’s factual determinations.” Galloso v.
Barr, 954 F.3d 1189, 1191 (8th Cir. 2020) (quoting Eusebio v. Ashcroft, 361 F.3d
1088, 1091 (8th Cir. 2004)). Under the “substantial evidence” standard, we will
affirm the BIA’s fact findings “unless, after having reviewed the record as a whole,
we determine that it would not be possible for a reasonable fact-finder to adopt the
BIA’s position.” Id. at 1191–92 (quoting Eusebio, 361 F.3d at 1091). Whether a
petitioner has established past persecution or a well-founded fear of future
persecution is a fact question reviewed under the substantial evidence standard. He
v. Garland, 24 F.4th 1220, 1224 (8th Cir. 2022).
Substantial evidence supports the BIA’s determination that Rodriguez failed
to show past persecution. “[P]ersecution is an extreme concept that involves the
infliction or threat of death, torture, or injury to one’s person or freedom, on account
of a protected characteristic.” Id. (alteration in original) (quoting Martin Martin v.
Barr, 916 F.3d 1141, 1144–45 (8th Cir. 2019)). Neither “[l]ow-level intimidation
and harassment” nor “brief detentions accompanied by beatings” qualify as
persecution. Id. at 1224–25 (quoting Eusebio, 361 F.3d at 1090). Similarly,
“[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 1225 (quoting Padilla-Franco v. Garland, 999 F.3d 604, 608 (8th Cir. 2021)).
Here, the BIA adopted the IJ’s finding that the bullying of A.G.H.R. and the threat
administrative remedies on this claim by not raising it in prior proceedings. As a
result, it is not properly before us. See Alvarez-Gomez v. Garland, 56 F.4th 582, 589
(8th Cir. 2022).
2 Rodriguez also argues the IJ erred by concluding her claimed particular social
group was not cognizable and was not the source of any asserted persecution.
However, the BIA did not adopt these portions of the IJ’s decision, so those issues
are not properly before us. See Gutierrez-Vidal v. Holder, 709 F.3d 728, 733 n.1
(8th Cir. 2013).

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to Rodriguez did not qualify as persecution. A reasonable factfinder could agree
with the BIA’s determination in light of past decisions affirming findings of no
persecution despite more serious beatings, detentions, and threats. See id. at 1222,
1225 (upholding no past persecution determination where the petitioner was beaten
by police and twice detained for over two weeks); Eusebio, 361 F.3d at 1090–91
(affirming no past persecution where the petitioner was beaten by police and
detained); Njong v. Whitaker, 911 F.3d 919, 923 (8th Cir. 2018) (similar and
collecting cases).
Moreover, since these actions were taken by private parties, rather than the
Guatemalan government, Rodriguez also needed to show that “the government was
unable or unwilling to control” those individuals. See Galloso, 954 F.3d at 1192.
Here, Rodriguez did not go to the police to report the bullying or threats. As for the
officials who were made aware of her concerns, authorities in the human rights office
listened to and transcribed Rodriguez’s complaint, though Rodriguez left Guatemala
before following up with them. Under these circumstances, a reasonable factfinder
could determine that Rodriguez did not show the Guatemalan government was
unable or unwilling to control the perpetrators’ conduct. See id. at 1192–93
(concluding generalized country reports and a petitioner’s statement that she did not
contact the police “failed to show that the . . . government is unable or unwilling to
protect her”).
Likewise, Rodriguez fails to show reversible error as to the BIA’s finding that
she did not show a well-founded fear of future persecution. Since she failed to prove
past persecution, Rodriguez “must demonstrate a well-founded fear of future
persecution that is ‘both subjectively genuine and objectively reasonable.’” Id. at
1192 (quoting Bracic v. Holder, 603 F.3d 1027, 1034 (8th Cir. 2010)). “Even where
an alien shows a well-founded fear of persecution upon return to [her] place of
origin, . . . the government can defeat a claim for asylum by showing that the alien
reasonably can relocate within [her] home country to avoid persecution.” Saldana
v. Lynch, 820 F.3d 970, 976 (8th Cir. 2016). A reasonable factfinder could agree
with the BIA’s decision because Rodriguez could relocate to avoid the threats and

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bullying, which were confined to her village, and she failed to show the Guatemalan
government was unable or unwilling to control the conduct of the perpetrators.3 See
id. And since Rodriguez failed to show her eligibility for asylum, the BIA did not
err by concluding she was ineligible for withholding of removal. See Galloso, 954
F.3d at 1193.
We therefore deny the petition for review.
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3 Rodriguez claims the BIA erred by concluding that she waived any challenge
to the IJ’s ability-to-relocate determination. But Rodriguez raised this argument for
the first time in her reply brief and failed to explain why she did not brief it in her
opening brief. As a result, she waived any challenge to the BIA’s waiver decision.
See Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) (“Claims not raised in an
opening brief are deemed waived.”).

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