May 9, 2017
Petition for Review of a Decision of the Board of Immigration
Appeals (Agency No. A202-144-002) Immigration Judge: Roxanne
A. Brophy, Esq. [Argued] Brophy & Lenahan, Counsel for
M. Camilleri, Esq. Jessica Dawgert, Esq. Sabatino F. Leo,
Esq. [Argued] United States Department of Justice Office of
Immigration Litigation Counsel for Respondent
BEFORE: AMBRO, RESTREPO, and NYGAARD, Circuit Judges
NYGAARD, Circuit Judge.
Javier Mendoza-Ordonez, a citizen of the Republic of
Honduras, crossed the United States border without inspection
on two occasions. After his first entry Customs and Border
Patrol officers (CBP) detained him and the Government
returned him to Honduras under an expedited removal. When CBP
detained him after his second entry Mendoza requested asylum
and, alternatively, asked the Government to withhold his
removal from the United States because he feared for his life
if returned to Honduras. He was placed into a "withholding
only" proceeding and after a hearing the Immigration
Judge denied his requests and ordered his removal. He
appealed to the Board of Immigration Appeals (BIA) asserting,
primarily, that the Immigration Judge ignored key evidence.
now petitions us to review the BIA's order that dismissed
his appeal. He contends that substantial evidence supporting
his request for withholding of removal compels a conclusion
that is contrary to that of the BIA. He also maintains that
the BIA applied the wrong legal standard when it reviewed
this claim. Finally he argues he is eligible for asylum. We
will reverse the decision of the BIA and grant Mendoza's
petition for withholding of removal. We will deny the
petition as to his request for asylum.
Mendoza was born in Honduras in 1989, the son of Edith Dalila
Mendoza Ordonez and Manuel Ulises Martinez
Gonzalez. Mendoza's father (Martinez) was
politically active in the Liberal Party. He routinely spoke
out against the National Party and its elected officials in
the Honduran government. After unsuccessfully running for
mayor of Apacilagua, Martinez won an election to serve as a
council member for the municipality. He remained a vocal
opponent of the National Party, accusing it of corruption.
on January 1, 2000, a National Party activist named Gerardo
Valladares assassinated Martinez and wounded Martinez's
wife. Valladares was convicted of murder, imprisoned and
released. In 2002, Mendoza's uncle (Jose Avilio
Martinez Gonzalez) also ran for mayor as a Liberal Party
candidate; he, too, was assassinated. The man who killed him,
Dimas Amador, was-like Valladares-a National Party
activist. Amador was convicted of this crime.
Throughout his childhood Mendoza attended Party functions
with his father. In spite of the murders of his father and
uncle, Mendoza's interest in politics persisted. He
served as president of the local Liberal Party's youth
division, gave speeches supporting the Party between 2008 and
2014, and worked for the Party during the national election
September 7, 2014, Hector Giron approached Mendoza on behalf
of Valladares (the assassin of Mendoza's father) and
threatened him with the same fate as his father if he did not
stop speaking out against the National Party. Mendoza
reported this incident on the following day to Judge Miriam
Umanzor Aguilar, who told him that she would investigate.
Mendoza noted that Umanzor is a National Party member and the
niece of the Apacilagua mayor (the same woman who defeated
his father in the mayoral election). So when Mendoza heard
nothing from Judge Umanzor in the two weeks following the
filing of his complaint, he was convinced that the Judge
would not take action. He left Apacilagua and stayed with one
of his sisters in Tegucigalpa.
October 2014, he applied for-but was denied-a visa to the
United States. Nonetheless, Mendoza crossed the United States
border from Mexico without inspection on November 27, 2014.
CBP agents detained and interviewed him on his reasons for
crossing. On December 3, 2014, the Department of
Homeland Security executed an expedited removal under 8
U.S.C. § 1225(b)(1) and returned him to Honduras.
Mendoza lived with a sister in Tegucigalpa. He remained
hidden there for four months, still fearing for his safety.
On April 17, 2015, Mendoza traveled to Apacilagua to visit
his ailing grandfather. The next day Valladares and other
National Party members approached him. Valladares put a gun
to Mendoza's head and told him that he would kill him if
he continued to speak out against the National
Party.On April 20, 2015, Mendoza filed a
complaint with Judge Umanzor about this new threat. When, on
April 22, 2015, Mendoza heard nothing from the Judge about
his complaint, he returned to his sister's house in
Tegucigalpa and went back into hiding. He testified that he
feared even walking the streets.
attempted to re-enter the United States again in May 2015,
but Mexican authorities detained and returned him to
Honduras. He went back to his sister's house and remained
in hiding until June 5, 2015. He then embarked on his last
attempt to cross the United States border from Mexico. He
re-entered the United States in July 2015. CBP detained him
approximately six days after he crossed.
Department of Homeland Security determined that Mendoza was
subject to removal and served him with a Notice of
Intent/Decision to Reinstate the Prior Removal Order on July
28, 2015. On September 1, 2015, an asylum officer interviewed
him to determine if he had credible fear of persecution in
Honduras. It was determined that Mendoza's claims
warranted further review, and he was referred to the
Immigration Court for a "withholding only"
Immigration Judge concluded that, although Mendoza's
testimony credibly established that he received death threats
for his political opinions, he still did not meet his burden
of proof for withholding of removal because he failed to
prove that the Honduran government was unwilling or unable to
protect him from those threats. The Immigration Judge decided
alternatively that the government had proven that the periods
of time in which Mendoza lived with his sisters proved that
he could safely relocate in Honduras. The order pretermitted
his claim for withholding of removal under the INA,
his asylum claim. It also denied his withholding of removal
claim under the Convention Against Torture.
filed a timely direct appeal, claiming that the Immigration
Judge erred by: deciding that he was ineligible for
withholding of removal; concluding that he failed to prove
the Honduran government was unwilling or unable to protect
him; ruling that he could safely relocate in Honduras;
deciding that he should be placed in a "withholding
only" proceeding; and finally, declaring that he ...