Case: 19-10711   Date Filed: 01/23/2020   Page: 1 of 17


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 19-10711
                         Non-Argument Calendar
                       ________________________

                        Agency No. A208-887-010



JOSE ISIDRO RIVAS PALENCIA,

                                              Petitioner,


                                  versus


U.S. ATTORNEY GENERAL,

                                              Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (January 23, 2020)

Before WILSON, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
             Case: 19-10711    Date Filed: 01/23/2020   Page: 2 of 17


      Jose Isidro Rivas Palencia petitions for review of a Board of Immigration

Appeals’ (“BIA”) decision. In its decision, the BIA denied Rivas Palencia’s

request to terminate his removal proceedings and also affirmed the immigration

judge’s order denying his application for asylum and withholding of removal under

the Immigration and Nationality Act (“INA”) and relief under the United Nations

Convention Against Torture (“CAT”). After careful consideration, we deny his

petition.

                        I.    FACTUAL BACKGROUND

      Rivas Palencia, a citizen of Honduras, entered the United States without

inspection on January 30, 2016. This appeal involves his applications for asylum,

withholding of removal, and protection under the CAT.

A.    After Entering the United States, Rivas is Served with a Notice to
      Appear.

      Shortly after Rivas Palencia arrived in the United States, the Department of

Homeland Security (“DHS”) served him with a notice to appear (“NTA”), which

charged him with being removable on the basis that he was an immigrant not in

possession of a valid, unexpired immigrant visa or other entry document. See

8 U.S.C. § 1182(a)(7)(A)(i)(I). Although the NTA identified the location for the




                                         2
                 Case: 19-10711       Date Filed: 01/23/2020      Page: 3 of 17


initial hearing, it stated that the date and time of the hearing were “To Be

Determined.” AR at 334.1

      About a week later, Rivas Palencia was served with a Notice of Hearing,

which identified the date, time, and location for the initial hearing. At the hearing,

Rivas Palencia acknowledged service of the NTA and conceded his removability.

B.    Rivas’s Applies for Asylum, Withholding of Removal, and Protection
      under the CAT.

      After his initial hearing, Rivas Palencia filed an application for asylum and

withholding of removal as well as protection under the CAT. To support his

claims for asylum, withholding of removal, and CAT protection, Rivas Palencia

testified at a hearing before the immigration judge, submitted an affidavit from his

stepfather and mother, and filed various documentary evidence about his sisters’

murders and reports about country conditions in Honduras.

      Rivas Palencia testified that he fled Honduras for the United States because

he feared that the family of a gang member would kill him. Approximately two

years before Rivas Palencia came to the United States, two of his sisters were

murdered in Honduras. They were murdered by Rudy Gonzalez, the boyfriend of

one of his sisters, who was also a gang member. Gonzalez was ultimately

convicted of murder and sentenced to 12 years’ imprisonment. Although Gonzalez


      1
          Citations to “AR” refer to the administrative record.


                                                 3
             Case: 19-10711       Date Filed: 01/23/2020    Page: 4 of 17


remained in prison, Rivas Palencia feared reprisals from Gonzalez’s family. After

Rivas Palencia’s sisters were murdered, Gonzalez’s uncle was murdered.

According to Rivas Palencia, Gonzalez’s family believed that he had murdered

their uncle to avenge his sisters’ murders. After the uncle’s murder, Gonzalez’s

cousins drove by Rivas Palencia’s house several times, threatening his life and

yelling that their uncle’s death “was not going to be in vain.” AR 117. Rivas

Palencia did not report these incidents to law enforcement in Honduras because he

feared that his family would be in more danger if he did.

      Rivas Palencia also testified that he feared returning to Honduras because

“there are a lot of criminals” there who have control over “everything that

happens.” 

He testified that in 2012—about four years before he came

to the United States—he was approached about joining a gang. When he refused

to join, gang members threatened him.

      During the hearing, Rivas Palencia was asked why he had not moved to

another region in Honduras. He responded that he had not wanted to leave his

mother who continued to live in his hometown in Honduras. He also indicated that

he could not safely live anywhere in Honduras because there were gangs and drug

dealers throughout the country.

      Rivas Palencia also provided the immigration judge with an affidavit from

his stepfather and mother in Honduras explaining that Rivas Palencia came to the


                                           4
              Case: 19-10711     Date Filed: 01/23/2020    Page: 5 of 17


United States because he feared for his life in Honduras. The affidavit began by

addressing the murders of Rivas Palencia’s sisters. The affidavit explained that

after the sisters were “killed in a violent manner,” the family “all live[d] in fear

that something bad may happen to us.” 

      The affidavit also described how other gang members had threatened Rivas

Palencia. The stepfather described an incident in which gang members tried to

recruit Rivas Palencia. A group of “vandals” came to the house looking for Rivas

Palencia. 

wanted Rivas Palencia to join their gang and become a

criminal. When Rivas Palencia refused, the group told him that they were going to

kill him.

      Rivas Palencia also submitted background materials on his sisters’ murders,

including their death certificates and several news articles about the murders. The

articles explained that the sisters were attacked on a road and killed by Gonzalez

and another man who were wielding machetes. The articles identified the motive

for the crimes as “passion.” 

      Rivas Palencia also provided the immigration judge with background

materials on Honduras, including documents prepared by the State Department,

Human Rights Watch, and other organizations. These materials stated that

Honduras suffered from “[p]ervasive societal violence,” its levels of crime and

violence were “critically high,” and it had one of the highest murder rates in the


                                           5
              Case: 19-10711    Date Filed: 01/23/2020    Page: 6 of 17


world. 

270. The materials discussed that gangs were prevalent

throughout Honduras and that youth gangs known as “maras” used threats and

violence to control poorer districts in towns and cities. 

The materials

also stated that the Honduran government lacked “sufficient resources to property

respond to, investigate, and prosecute cases,” which led to criminals being able to

operate with “a high degree of impunity.” 

C.    The Immigration Judge Denies Rivas Palencia’s Applications, and the
      BIA Dismisses His Appeal.

      In an oral ruling, the immigration judge denied Rivas Palencia’s applications

for asylum and withholding of removal and found he was not entitled to protection

under the CAT. Rivas Palencia appealed to the BIA.

      Before the BIA, Rivas Palencia requested for the first time that the removal

proceedings against him be terminated on the basis that the immigration court was

never vested with jurisdiction. Relying on the Supreme Court’s recent decision in

Pereira v. Sessions, 

(2018), he argued that because the NTA

served on him did not include the date and time of the proceedings, the

immigration court never had jurisdiction. Rivas Palencia also argued that the

immigration judge erred in denying his applications for asylum and withholding of

removal and finding that he was not entitled to protection under the CAT.

      After review, the BIA dismissed the appeal, rejecting each of Rivas

Palencia’s arguments. The BIA began by addressing the jurisdictional argument.
                                          6
              Case: 19-10711      Date Filed: 01/23/2020    Page: 7 of 17


Even though the NTA failed to include the time and date of his initial hearing, the

BIA found that it was sufficient to vest the immigration court with jurisdiction over

his removal proceedings. The BIA thus determined that it was not required to

terminate the removal proceedings against Rivas Palencia.

      Next, the BIA considered whether Rivas Palencia was eligible for asylum.

The BIA determined that the immigration judge had not clearly erred in finding

that Rivas Palencia failed to establish a well-founded fear of persecution. The BIA

assumed that Gonzalez’s cousins had threated Rivas Palencia’s life. But the BIA

determined these threats did not establish that Rivas Palencia had a well-founded

fear of persecution in Honduras. The BIA explained that Rivas Palencia had been

able to continue to live in his family’s home “for approximately a year after the

killing of the uncle of his sisters’ killers, which was a year after his sisters were

murdered, and he did not experience harm during that period.” AR 4. In addition,

Rivas Palencia’s mother had been able to safely live in Honduras, which suggested

that the family had not been targeted for harm.

      The BIA further concluded that Rivas Palencia failed to establish that “he

would be unable to safely relocate within Honduras.” 

Palencia

was asked why he had not relocated within Honduras, the BIA explained, he

answered that he had not wanted to leave his mother and that there were high

levels of crime throughout Honduras. Although crime was rampant in Honduras,


                                            7
              Case: 19-10711    Date Filed: 01/23/2020    Page: 8 of 17


the BIA explained that “an alien’s fear of criminality is not a basis for asylum.” 

Palencia failed to establish a well-founded fear of persecution in

Honduras and that he would be unable to relocate within Honduras, the BIA

concluded that he was not entitled to asylum. The BIA then used the same

reasoning to determine that Rivas Palencia was ineligible for withholding of

removal or protection under the CAT. Rivas Palencia filed a petition for review in

our Court.

                                 II.   ANALYSIS

A.    Despite the Omissions in the Notice to Appear, the Immigration Court
      Had Jurisdiction over Rivas Palencia’s Removal Proceedings.

      We begin with Rivas Palencia’s argument that the immigration court lacked

jurisdiction over his removal proceedings because the NTA did not indicate the

time and place of the removal hearing. We review de novo issues of subject matter

jurisdiction. Martinez v. U.S. Att’y Gen., 

, 1221 (11th Cir. 2006).

We agree with the BIA that the immigration court was vested with jurisdiction

over the removal proceedings.

      The INA provides that an immigration judge shall conduct proceedings to

determine whether a noncitizen is removable from the United States. 8 U.S.C.

§ 1229a(a)(1). At the initiation of removal proceedings, the noncitizen must be

served with an NTA specifying, among other things, the nature of the proceedings,

the charges against the noncitizen, the requirement that the noncitizen provide
                                          8
                Case: 19-10711   Date Filed: 01/23/2020    Page: 9 of 17


address and telephone contact information, the consequences of failing to appear at

a removal hearing, and “[t]he time and place at which the proceedings will be

held.” 

The INA does not expressly provide the conditions upon

which jurisdiction vests with the immigration judge, but regulations state that

“[j]urisdiction vests, and proceedings before an Immigration Judge commence,

when a charging document is filed with the Immigration Court.” 8 C.F.R.

§ 1003.14(a).

      In Pereira, the Supreme Court recently considered a question “at the

intersection of” § 1229(a), which sets forth the contents of an NTA, and the “stop-

time” rule for cancellation of removal in 8 U.S.C. § 

. To be eligible for cancellation of removal, a noncitizen must be

continuously physically present in the United States for a certain length of time,

and the stop-time rule states that the period of continuous physical presence stops,

in certain circumstances, “when the alien is served a notice to appear under section

1229(a).” 8 U.S.C. § 1229b(d)(1). In Pereira, the Supreme Court held that a

putative NTA that failed to specify either the time or place of the removal

proceedings did not trigger the stop-time rule and thus did not end the noncitizen’s

continuous physical presence in the United States for purposes of cancellation of

removal 

. The Supreme Court reasoned that a

“putative notice to appear that fails to designate the specific time or place of the


                                           9
               Case: 19-10711        Date Filed: 01/23/2020       Page: 10 of 17


noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’

and so does not trigger the stop-time rule.” 

(quoting 8 U.S.C.

§ 1229b(d)(1)).

       In Perez-Sanchez v. United States Attorney General, we considered a

petitioner’s claim that the agency “never had jurisdiction over his removal case”

when his initial NTA failed to include the time or date of his removal hearing.

, 1150 (11th Cir. 2019). Although the NTA was “unquestionably

deficient” under § 1229(a) because it did not specify the time or date of the

removal hearing, we held that the defect did not deprive the agency of jurisdiction

over the removal proceedings because the statutory “time-and-place requirement”

did not “create a jurisdictional rule,” but was instead a “claim-processing rule.” 

Having determined that the agency properly exercised jurisdiction

over the petitioner’s removal proceedings, we denied the portion of his petition

raising this jurisdictional issue. 

       Our decision in Perez-Sanchez forecloses Rivas Palencia’s jurisdictional

challenge. Even though Rivas Palencia’s NTA failed to specify the time and date

of his removal hearing, Perez-Sanchez establishes that the agency had jurisdiction

over his immigration proceedings.2

       2
         Rivas Palencia could have raised a non-jurisdictional argument that the agency failed to
follow its claims-processing rules governing the procedural steps it was required to take in order
to docket a case before an immigration judge. See 

. But he

                                                10
               Case: 19-10711        Date Filed: 01/23/2020       Page: 11 of 17


B.     Substantial Evidence Supports the BIA’s Denial of Rivas Palencia’s
       Asylum Application.

       We now turn to Rivas Palencia’s argument that the BIA erred in concluding

that he was ineligible for asylum. Because the BIA issued its own decision, we

review only that decision, except to the extent that the BIA expressly adopted or

explicitly agreed with the immigration judge’s opinion. Tang v. U.S. Att’y Gen.,

, 1275 (11th Cir. 2009). 3 “We review the BIA’s legal conclusions

de novo and its factual determinations under the substantial evidence test.” Lopez

v. U.S. Att’y Gen., 

, 1297 (11th Cir. 2019). Under the substantial

evidence test, we will affirm the BIA’s factual findings as long as they are

“supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” 

marks omitted). “We will reverse

the BIA’s factual findings only if the record compels reversal, and the mere fact


forfeited this argument by failing to challenge the validity of the NTA before the immigration
judge. See Pierre-Paul v. Barr, 

, 692 (5th Cir. 2019), petition for cert. filed. No.
19-779 (U.S. Dec. 16, 2019).
       3
         Under this standard, Rivas Palencia argues that we should review the immigration
judge’s decision regarding his credibility and membership in a particular social group because
the BIA “simply adopted the [immigration judge’s] flawed reasoning, factual determinations,
and non-existent credibility determination.” Petitioner’s Br. at 17. We disagree with his
characterization of the BIA’s decision. The BIA did not expressly adopt or agree with any
reasoning from the immigration judge about Rivas Palencia’s credibility or his membership in a
particular social group. In its decision, the BIA instead focused on different elements of the
asylum claim, explaining that Rivas Palencia failed to establish he had an objectively reasonable
fear of persecution in Honduras and would be unable to safely relocate within Honduras. We
thus do not review the immigration judge’s decision regarding Rivas Palencia’s credibility or
membership in a particular social group because the BIA did not expressly adopt or agree with
these portions of the immigration judge’s decision.


                                                11
              Case: 19-10711      Date Filed: 01/23/2020     Page: 12 of 17


that the record may support a contrary conclusion is insufficient to justify reversal

of the BIA’s findings.” 

immigrant who is present in the United States may apply

for asylum. 8 U.S.C. § 1158(a)(1). The government has discretion to grant asylum

if the applicant establishes that he is a “refugee.” 

A refugee

is a person “who is unable or unwilling to return to, and is unable or unwilling to

avail himself . . . of the protection of, [his . . . country of nationality] because of

persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 

       To establish asylum eligibility, the applicant must, with specific and credible

evidence, show “(1) past persecution on account of a statutorily listed factor,” or

(2) “a well-founded fear that the statutorily listed factor will cause . . . future

persecution.” 

marks omitted). Under the law, persecution is

an “extreme concept, requiring more than a few isolated incidents of verbal

harassment or intimidation” and “mere harassment does not amount to

persecution.” Sepulveda v. U.S. Att’y Gen., 

, 1231 (11th Cir. 2005)

(alteration adopted) (internal quotation marks omitted).

       Here, Rivas Palencia has not argued that he is entitled to asylum based on

past persecution, so we focus our analysis on whether substantial evidence


                                            12
               Case: 19-10711       Date Filed: 01/23/2020        Page: 13 of 17


supports the BIA’s determination that he failed to meet his burden of proving a

well-founded fear of future persecution. In order to establish a well-founded fear

of future persecution, an applicant must show the following: “(1) he fears

persecution based on his membership in a particular social group, political opinion,

or other statutorily listed factor; (2) there is a reasonable possibility that he will

suffer persecution if removed to his native country; and (3) he is unable or

unwilling to return to his native country because he fears persecution.” Zheng v.

U.S. Att’y Gen., 

, 1291 (11th Cir. 2006). 4 The applicant’s fear must

be “both subjectively genuine and objectively reasonable.” 

credible testimony that he genuinely fears persecution may satisfy the subjective

component. Ruiz v. U.S. Att’y Gen., 

, 1257 (11th Cir. 2006). And

evidence of past persecution or a valid reason to fear future persecution may fulfill

the objective component. 

cautioned that “[o]nly in a rare case does

the record compel the conclusion that an applicant for asylum . . . has a well-

founded fear of future persecution.” Diallo v. U.S. Att’y Gen., 

,

1332 (11th Cir. 2010) (alteration adopted) (internal quotation marks omitted).



       4
         An applicant need not establish a reasonable possibility of persecution if he instead
proves “that he is a member of, or is identified with, a group that is subjected to a ‘pattern or
practice’ of persecution in his country of nationality.” Kazemzadeh v. U.S. Att’y Gen., 

, 1352 (11th Cir. 2009) (quoting 8 C.F.R. § 208.13(b)(2)(iii)). Rivas Palencia does not
contend that he is a member of such a group.


                                                13
             Case: 19-10711     Date Filed: 01/23/2020    Page: 14 of 17


      Even if an applicant satisfies these requirements, he does not have a well-

founded fear of future persecution if he could avoid persecution by safely

relocating within his country of nationality. See 8 C.F.R. § 208.13(b)(2)(iii).

When the alleged persecutor is a private individual, the applicant bears the burden

of demonstrating that he cannot safely relocate within his country of nationality.

      Here, the BIA determined that Rivas Palencia failed to demonstrate a

reasonable possibility that he would be subject to persecution if he returned to

Honduras. Record evidence supports this conclusion. Although Rivas Palencia

was threatened by Gonzalez’s family after their uncle’s murder, the record

evidence shows that for a year after Gonzalez’s uncle was murdered, Rivas

Palencia remained in his hometown without being physically harmed. The fact

that Rivas Palencia successfully avoided harm for this extended period of time is

evidence that there is not a reasonable possibility that he would suffer future

prosecution if he returned to Honduras. See 

n.3.

      Rivas Palencia argues that he reasonably fears returning to Honduras due to

the risk that Gonzalez’s family will kill him in retribution for their uncle’s murder.

Certainly, Rivas Palencia testified that he had this fear. But, under the substantial

evidence standard, we are not asking whether there is any evidence that supports

Rivas Palencia’s position because the mere fact that the record may support the


                                          14
               Case: 19-10711       Date Filed: 01/23/2020      Page: 15 of 17


contrary conclusion is insufficient to justify a reversal. See 

. On this record, we conclude that substantial evidence supports the BIA’s

conclusion that Rivas Palencia failed to carry his burden to show a reasonable

possibility of future persecution upon his return to Honduras. 5

       Rivas Palencia nonetheless urges us to reverse the BIA’s decision because,

he argues, the BIA failed to give reasoned consideration to his argument that he

had a well-founded fear of future persecution. He contends that the substance of

the BIA’s reasoning shows that it “has merely reacted [to] and has not really heard

or thought through [his] claim or arguments.” Petitioner’s Br. at 26.

       We acknowledge that “when a decision of an immigration judge or the BIA

is so lacking in reasoned consideration and explanation that meaningful review is

impossible,” it is appropriate to grant a petition for review, vacate the agency’s

decision, and remand for further proceedings. Jeune v. U.S. Att’y Gen., 

, 803 (11th Cir. 2016). In examining whether there was reasoned

consideration, we look “to see whether the agency has considered the issues raised

       5
          We note that the BIA also provided a second reason for denying Rivas Palencia’s
application: he failed to carry his burden of proving that he could not safely relocate within
Honduras. The BIA explained that Rivas Palencia failed to establish that his fear of persecution
exists nationwide. Because Rivas Palencia’s asylum claim is based on threats from Gonzalez’s
family and he failed to show that he would remain at risk if he relocated within Honduras, we
conclude that the record also supports the BIA’s alternative reason for denying asylum. See
Mazariegos v. Office of U.S. Att’y Gen., 

, 1327-28 (11th Cir. 2001) (concluding
that substantial evidence existed to support a finding that the petitioner could safely relocate
within his home country when he failed to show that his alleged persecutors operated throughout
the entire country).


                                               15
             Case: 19-10711     Date Filed: 01/23/2020    Page: 16 of 17


and announced its decision in terms sufficient to enable a reviewing court to

perceive that it has heard and thought and not merely reacted.” 

(internal quotation marks omitted). An agency fails to give reasoned

consideration to a claim “when it misstates the contents of the record, fails to

adequately explain its rejection of logical conclusions, or provides justifications for

its decision which are unreasonable and which do not respond to any arguments in

the record.” 

decision shows that it gave reasoned consideration to whether

Rivas Palencia had a well-founded fear of future persecution. There is no

indication that the BIA misstated the contents of the record, failed to adequately

explain its rejection of a logical conclusion, or provided an unreasonable

justification for a decision that did not respond to an argument in the record. Rivas

Palencia’s argument that the BIA failed to give reasoned consideration boils down

to an assertion that the record evidence was “clear” and compelled a finding that he

“reasonably fears harm” if he were to return to Honduras. Petitioner’s Br. at 26.

But as we explained above, we cannot say that the record compels this conclusion

given the evidence showing that Rivas Palencia continued to live in Honduras for

over a year after Gonzalez’s uncle was murdered. We thus conclude that the BIA




                                          16
               Case: 19-10711       Date Filed: 01/23/2020       Page: 17 of 17


did not err in finding that Rivas Palencia failed to demonstrate that he had an

objectively reasonable fear of persecution.6

       Because substantial evidence supports the BIA’s determination that Rivas

Palencia failed to satisfy the standard for asylum eligibility, we also conclude that

substantial evidence supports the BIA’s conclusion that he failed to satisfy the

higher standards for withholding of removal or CAT relief. See 

(recognizing that when a petitioner fails to establish a claim of asylum on the

merits, he also fails to establish eligibility for withholding of removal or protection

under the CAT).

                                   III.   CONCLUSION

       For the foregoing reasons, Rivas Palencia’s petition is denied.

       PETITION DENIED.




       6
         Rivas Palencia also argues that the BIA failed to give reasoned consideration to his
claim by failing to address whether he was a member of a particular social group. Because the
BIA affirmed the denial of Rivas Palencia’s asylum claim on the ground that he failed to
establish a well-founded fear of persecution, it was not required to address the other elements of
his claim, including whether he was a member of a particular social group. See Indrawati v. U.S.
Att’y Gen., 

, 1302 (11th Cir. 2015).


                                               17