Pineda-Hernandez v. Lynch
657 F. App'x 6
| 1st Cir. | 2016Background
- Petitioner Gloria Esperanza Pineda-Hernandez, a Honduran national, entered the U.S. unlawfully in March 2012 and conceded removability before an IJ.
- Pineda alleged a single sexual assault/attack by a Mara Salvatrucha member (“El Peludo”) shortly before she left Honduras; she feared future rape or killing by him.
- She did not report the assault to Honduran police, believing they would not help and fearing gang retaliation; police station was 25–30 minutes away.
- The IJ found Pineda credible but concluded her harm did not amount to persecution and lacked nexus to a protected ground; IJ denied asylum, withholding, and CAT relief.
- The BIA affirmed, finding the record showed a criminal act by a gang member seeking a relationship, not past persecution, nexus to a protected ground, or government involvement for CAT protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pineda suffered past persecution | Assault and threats by gang member amounted to persecution | Harm was a private criminal act, not persecution | Denied; not past persecution |
| Whether harm relates to a protected ground (nexus) | Attack targeted her (implied gender/particular social group) | No evidence attack was on account of protected ground | Denied; nexus not established |
| Whether police involvement or acquiescence exists (for persecution/CAT) | Fear of retaliation and police nonresponse shows state inability/acquiescence | No report was filed; no evidence of state involvement or acquiescence | Denied; government not implicated |
| Eligibility for CAT protection (more likely than not tortured) | Likely to be tortured by gang with government acquiescence | No evidence gang are state actors or officials would acquiesce | Denied; petitioner failed to show likelihood of torture with state involvement |
Key Cases Cited
- Pulisir v. Mukasey, 524 F.3d 302 (1st Cir. 2008) (focus review on BIA opinion when BIA issues its own decision)
- Thapaliya v. Holder, 750 F.3d 56 (1st Cir. 2014) (standard for reviewing BIA decisions: supported by reasonable, substantial, probative evidence)
- Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (burden on applicant to show nexus and that record compels contrary conclusion)
- Barsoum v. Holder, 617 F.3d 73 (1st Cir. 2010) (government involvement required for harm to qualify as persecution)
- Castillo-Diaz v. Holder, 562 F.3d 23 (1st Cir. 2009) (absence of police report undermines asylum claim for sexual assault victim)
- Romilus v. Ashcroft, 385 F.3d 1 (1st Cir. 2004) (asylum not intended for violence based on personal animosity)
- Villa-Londono v. Holder, 600 F.3d 21 (1st Cir. 2010) (failure to meet asylum burden defeats withholding claim)