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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11361
                         Non-Argument Calendar
                       ________________________

                        Agency No. A206-621-095


JUNIOR ALFREDO MEDINA ACOSTA,

                                                                       Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                             (March 12, 2018)

Before JULIE CARNES, FAY and HULL, Circuit Judges.

PER CURIAM:
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      Junior Alfredo Medina Acosta petitions for review of the Board of

Immigration Appeals’ (“BIA”) final order denying his motion to reopen his

removal proceedings based on new evidence. We deny his petition.

                                I. BACKGROUND

      Acosta, a native and citizen of Honduras, entered the United States without

inspection in January 2014. Border patrol agents arrested him upon entry. In his

initial interview, Acosta expressed no fear of return. However, in his credible fear

interview, Acosta stated that he had left Honduras because he was receiving death

threats from a man named Jose Antonio Sarmiento, who blamed Acosta’s father

for the death of his nephew and who had killed Acosta’s grandfather, had his

cousin killed, and had shot at Acosta.

      In February 2014, the Department of Homeland Security issued Acosta a

notice to appear, which alleged that he was removable under Immigration

Nationality Act (“INA”) § 212(a)(7)(A)(i)(1), 8 U.S.C. § 1182(a)(7)(A)(i)(l), for

being an alien who, at the time of admission, did not possess a valid entry

document. Acosta conceded removability as charged. In November 2014, Acosta

filed an application for asylum, withholding of removal, and relief pursuant to the




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Convention Against Torture (“CAT”), based on membership in a particular social

group. 1

       After considering testimony and evidence in a hearing on Acosta’s

application for withholding of removal, 2 the Immigration Judge (“IJ”) denied

relief. Acosta appealed to the BIA, which dismissed his appeal in August 2016.

Assuming that Acosta was credible, the BIA agreed with the IJ that Acosta had not

established eligibility for asylum and that Acosta had failed to demonstrate past

persecution on account of a protected ground because he did not show that the

harm he suffered was on account of his membership in a particular social group.

Rather, the BIA found that the harm, which arose from a land dispute and

Sarmiento’s purported desire to retaliate for the death of a relative, was the result

of criminal activity. The BIA also determined that criminal activity was not

enough to show persecution on account of a protected ground.

       The BIA agreed with the IJ’s conclusion that Acosta had failed to meet his

burden to show that it would be unreasonable for him to relocate within Honduras.

The BIA found that none of Acosta’s male family members had been harmed for at

least two years and that he had failed to show that the threat of future harm was



1
  Acosta also alleged persecution based on political opinion, but he later abandoned this ground
for relief.
2
 For a full recitation of the facts, see Acosta v. U.S. Att’y Gen., 704 F. App’x 869 (11th Cir.
2017).

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country-wide. The BIA also concluded that Acosta had failed to show that the

Honduran authorities were unable or unwilling to protect him and his family.

       Inasmuch as Acosta was unable to demonstrate eligibility for asylum, the

BIA concluded that he was precluded from qualifying for withholding of removal,

which required a higher burden of proof. The BIA noted that Acosta had not

meaningfully challenged the IJ’s denial of his CAT claim, but did agree with the IJ

that Acosta had not shown it was more likely than not that he would be tortured by

or with the acquiescence of the government if returned to Honduras. Accordingly,

the BIA dismissed Acosta’s appeal. Acosta filed a petition for review with this

court, which we denied it in part and dismissed in part. 3 Acosta v. U.S. Att’y Gen.,

704 F. App’x 869 (11th Cir. 2017).

       While his petition for review with this court was pending, Acosta filed a

motion to reopen his removal proceedings with the BIA based on evidence not

previously available. First, he argued that he had established a nexus between the

violence and his membership in his family because his family was targeted by

Sarmiento and mixed motives for persecution were permissible. He provided

affidavits from his mother, a police inspector, and his sister, attesting to the

continued death threats to himself and to his family. Acosta argued that this new

evidence clearly established his fear of future persecution and that he could not
3
 We dismissed Acosta’s petition as to his claim for CAT relief for lack of jurisdiction because
he had failed to argue it before the BIA. Acosta, 704 F. App’x at 874-75.

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safely relocate to another part of Honduras. Second, Acosta argued that he feared

torture by the Honduran government, again seeking relief under CAT. He believed

that he would be tortured upon his return, based on his own prior testimony that the

Honduran government was complicit in the crime and violence occurring in

Honduras and that the police failed to investigate the robbery of his aunt.

       The BIA denied Acosta’s motion to reopen because the evidence presented

by the motion, including affidavits that detailed threats received subsequent to

Acosta’s proceedings before the IJ, was insufficient to make a prima facie showing

of Acosta’ s eligibility for relief, for the same reasons discussed in its prior

decision. Thus, the BIA determined that Acosta had failed to meet his burden of

showing that the evidence presented would likely change the result in his case if

the proceedings were to be reopened.

                                      II. DISCUSSION

       On petition for review, Acosta argues that the BIA erred when it denied his

motion to reopen because the affidavits that he presented from his mother, his

sister, and a police inspector established a sufficient nexus between past

persecution and his particular social group, a well-founded fear of future

persecution, and his inability to reasonably relocate anywhere within Honduras.4


4
  By failing to raise it in his petition for review, Acosta has abandoned any claim challenging the
BIA’s denial of his motion to reopen on the basis that he failed to demonstrate a prima facie case
for CAT relief. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

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      We review the denial of a motion to reopen removal proceedings for abuse

of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). If

the BIA’s decision was based on a legal determination, then we review the

decision de novo. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). We

review only the BIA’s decision, except to the extent that the BIA has expressly

adopted the IJ’s opinion or reasoning. Jiang, 568 F.3d at 1256.

      An alien may file a motion to reopen his removal order. 8 U.S.C.

§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c). The motion should state the new facts to

be proven if the removal proceedings were reopened and should be supported by

affidavits or other evidentiary material. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.

§ 1003.2(c)(1). The alien bears a heavy burden to establish that, if the proceedings

were opened, the new evidence would likely change the result of his case. Jiang,

568 F.3d at 1256-57. At minimum, there are three reasons that the BIA may deny

a motion to reopen: (1) failure to establish a prima facie case of eligibility for

relief; (2) failure to present evidence that is material and was previously

unavailable; and (3) a determination that the alien is not entitled to a favorable

exercise of discretion despite being statutorily eligible for relief. Al Najjar v.

Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).

      To qualify for asylum, the alien must establish that he has a well-founded

fear that he will be persecuted if removed, based on the alien’s race, religion,


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

568 F.3d at 1257; 8 U.S.C. § 1158(b)(1)(B)(i). “[E]vidence that either is consistent

with acts of private violence . . . or that merely shows that a person has been the

victim of criminal activity, does not constitute evidence of persecution based on a

statutorily protected ground.” Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310

(11th Cir. 2013) (brackets in original) (quoting Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1258 (11th Cir. 2006)). Also, an alien does not have a well-founded fear of

future persecution if he could avoid persecution by reasonably relocating to

another part of the country. 8 C.F.R. § 208.13(b)(2)(ii). Where an alien has not

established past persecution, he bears the burden of showing it would be

unreasonable for him to relocate, unless the persecution is by a government or is

government-sponsored. Id. § 208.13(b)(3)(i).

      To be entitled to withholding of removal, an alien must establish that his life

or freedom would be threatened on account of his race, religion, nationality,

political opinion, or membership in a particular social group, which means that it is

“more likely than not” he will be persecuted or tortured on account of a protected

ground upon being returned to his country. Sanchez Jimenez v. U.S. Att’y Gen.,

492 F.3d 1223, 1238 (11th Cir. 2007). “[W]here an applicant fails to meet the

burden for asylum, he necessarily cannot meet the more stringent burden for




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withholding of removal.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,

1249 n.3 (11th Cir. 2006).

         The BIA did not abuse its discretion when it determined that Acosta did not

establish a prima facie case of asylum or withholding of removal that warranted

reopening his removal proceeding. The new incidents cited in the three affidavits

did not cure the defects that the IJ, the BIA, and this court found prevented Acosta

from successfully obtaining relief through his initial application. See Acosta, 704

F. App’x 869. First, the recent threats to Acosta’s mother and sister were more of

the same incidents that he reported at the merits hearing and still do not establish

that Sarmiento had any other animus towards the family besides the land dispute.

See id. at 870-71. Because this activity was determined to be criminal activity, it

was not sufficient to show past persecution on account of a protected ground. See

Rodriguez, 735 F.3d at 1310; see also Acosta, 704 F. App’x at 874.

         Second, the threats that Acosta’s mother and sister and the police inspector

described indicate that Sarmiento was continuing to look for Acosta in the same

places that he had before Acosta left Honduras. This court previously determined

that substantial evidence supported the fact that Acosta could reasonably relocate, 5

and the affidavits do not provide any new evidence for why he would not able to.

Therefore, Acosta has failed to demonstrate that the new evidence presented in his

5
    Acosta, 704 F. App’x at 874.

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motion to reopen and attached affidavits would change the result of his case if it

were reopened. Jiang, 568 F.3d at 1256-57.

      Furthermore, when the BIA denied Acosta’s motion to reopen, it adopted the

reasons from its initial decision affirming the IJ’s denial of his asylum application.

The IJ had determined that the Honduran government did not turn a blind eye, nor

demonstrate an unwillingness to help Acosta, based on the fact that they took the

police reports, arrested Sarmiento, and then apparently acquitted him at trial. In

affirming the IJ’s denial, the BIA concluded that Acosta had failed to show that the

Honduran authorities were unable or unwilling to protect his family. Because a

failure to show that he sought protection or that the Honduran government was

unable or unwilling to help him can defeat an asylum claim, Lopez v. U.S. Att’y

Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) , this was an independent ground for

the denial of his motion. In his petition for review, Acosta fails to challenge the

BIA’s denial of his motion to reopen on this basis; the issue is therefore

abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005). Accordingly, his petition for review is denied.

      PETITION DENIED.




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