          United States Court of Appeals
                     For the First Circuit


No. 17-1285

                  BLANCA LIDIA MARTÍNEZ-PÉREZ,

                           Petitioner,

                               v.

                   JEFFERSON B. SESSIONS, III,
                 UNITED STATES ATTORNEY GENERAL,

                           Respondent.


               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                             Before

                  Thompson, Selya, and Kayatta,
                         Circuit Judges.


     Carlos E. Estrada, Ashley M. Edens and Estrada Law Office, on
brief for petitioner.
     Michael C. Heyse, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and May Jane Candaux, Assistant Director, on brief for
respondent.



                          July 24, 2018
           THOMPSON,    Circuit       Judge.        Petitioner     Blanca     Lidia

Martínez-Pérez    (Martínez-Pérez)          seeks    judicial      review    of    a

decision of the Board of Immigration Appeals (BIA) affirming the

denial of her applications for asylum, withholding of removal, and

withholding of removal under the Convention Against Torture (CAT).

Martínez-Pérez    argues     that     the   BIA     erred   by    affirming       the

Immigration Judge's (IJ) conclusion that she did not qualify for

asylum, withholding of removal, or any other basis for relief based

on her mistreatment in Honduras because of her Afro-Honduran race

and physical disability caused by polio, and furthermore that the

IJ   violated   her   due   process    rights.       Before      looking    at    the

challenges Martínez-Pérez has raised here, we will run through the

circumstances of Martínez-Pérez's journey to the United States,

her life in Honduras and the circumstances that led her to come to

the United States, and the prior proceedings that brought her

before this court.1

                               A. BACKGROUND

                       1. Facts and Circumstances

           Martínez-Pérez was born in 1976 in Honduras.               By the age

of one she was diagnosed with polio, after which her mother gave

Martínez-Pérez to her uncle, who in turn left her at an orphanage



      1These facts are drawn from the administrative record,
including Martínez-Pérez's hearing testimony, which the IJ found
credible.


                                      - 2 -
in Tegucigalpa, the capital of Honduras.               Because of her childhood

polio, Martínez-Pérez walks with a limp. She was harassed by staff

and   other     children     in   the    orphanage      throughout       her    entire

childhood,      and    was   sometimes    called       names     relating      to   her

disability.      She dropped out of school after the sixth grade.

              Martínez-Pérez ultimately left the orphanage at age

eighteen and moved to a town called Sambo Creek, about six hours

north of Tegucigalpa.         Tegucigalpa and Sambo Creek are the only

two   places    Martínez-Pérez      lived       in   Honduras.      As    an    adult,

Martínez-Pérez continued to experience general mistreatment based

on her disability and race.         She recalled being verbally harassed

by strangers on the street.             She also had difficulty finding a

job, and supported herself by working as a babysitter for a friend.

After three incidents in 2014 in which she heard someone threaten

her life, had a bottle thrown at her, and survived a home invasion,

all of which we'll get to later, Martínez-Pérez decided to leave

Honduras and travel to the United States.

              Martínez-Pérez entered the United States on foot, having

broken her foot in transit, near Brownsville, Texas, on or about

June 7, 2014.         While in custody, she received medical attention

for her foot and an asylum officer conducted a credible fear

interview with her for her asylum claim, finding that there was a

significant possibility that she could prevail on an asylum claim

at a full hearing.       She remained in custody and was transferred to


                                        - 3 -
Louisiana, where she was served with a notice to appear on July

23, 2014, which began the removal proceedings against her.     She

was then released on bond in August 2014.   Between 2014 and 2016,

when Martínez-Pérez ultimately was able to secure counsel and have

a hearing on her application for asylum, the case was continued

multiple times and ultimately venue was transferred from Louisiana

to Boston.2

                        2. The IJ Hearing

          At her asylum hearing before the IJ, Martínez-Pérez's

claims for (i) asylum, (ii) withholding of removal, and (iii)

withholding of removal under the CAT were principally supported by

her testimony about three experiences of harassment or threat of

assault that she argued were past persecution, and thus also

supported her well-founded fear of future persecution if she

returned to Honduras.3 First, Martínez-Pérez described an incident

in February 2014 when a stranger broke into her room at night.

The intruder tried to attack her but ran away when she screamed.


     2 Not at issue in this appeal, counsel for Martínez-Pérez
before the BIA represented that there were several continuances
"due to the Immigration Judge's scheduling issues," before
ultimately venue was transferred from New Orleans to Boston on
April 22, 2015.
     3 Martínez-Pérez also submitted several "country condition"
documents as exhibits at her asylum hearing that described disabled
people and people of Afro-Honduran descent as subject to
discrimination, especially in employment, housing, and public
services access, as well as the overall poor state of healthcare
access and quality in Honduras.


                              - 4 -
She believes the intruder targeted her and wanted to sexually

assault her because of her disability.                 The intruder never spoke

to her.    Because she was afraid that the intruder would come back,

or hurt her when released from custody, she did not file a

complaint with the police.

            The last two incidents relate to a single person, a man

named Charlie who harassed her on multiple occasions in Sambo

Creek.    She encountered Charlie once a month over the course of a

year.     For the most part, Charlie made offensive comments about

Martínez-Pérez's     limp.       But    one    time,     Charlie    escalated    by

threatening to throw her off a bridge, but said he wouldn't because

she was carrying her friend's baby.              Another time in April 2014,

he physically threatened her, throwing a bottle at her that hit

her feet and calling her "renca," which means "gimp."                  Martínez-

Pérez described this as the reason she left Honduras, leaving for

the United States a few weeks later.

            At the end of the hearing, the IJ issued an oral decision

denying    Martínez-Pérez's      asylum       claim.      Despite    finding    her

testimony    "credible"    and   "truthful,"       and    her   case   "extremely

sympathetic," the IJ found that Martínez-Pérez had failed to carry

her burden in proving either past persecution or a well-founded

fear of future persecution.        In particular, the IJ found that the

three    more   serious   instances     of     threats    and   physical   danger

Martínez-Pérez testified about did not rise to the level of past


                                       - 5 -
persecution.    As for well-founded fear of future persecution,

though the IJ found her credible, and thus credited her subjective

fear in returning to Honduras, the IJ found that the threats she

faced were from a single person, and therefore did not "present a

likelihood of persecution if she returned."       Under the same

reasoning, the IJ rejected her claims for withholding of removal

and protection under the CAT.

                         3. Appeal to BIA

           Martínez-Pérez then appealed to the BIA, which affirmed

the IJ's decision to deny her claims for asylum and withholding of

removal.   The BIA agreed with the IJ that the evidence Martínez-

Pérez presented was not serious enough to "rise[] to the level of

past persecution."   For the same reason, the BIA also agreed with

the IJ's conclusion that the mistreatment and harassment she faced

did not rise to the level of a well-founded fear of future

persecution.4   Because she could not satisfy this lesser asylum

burden, the BIA agreed that it necessarily followed that she had

not satisfied the higher burden for withholding of removal.

           This petition for judicial review ensued.   Jurisdiction

of this court is pursuant to 8 U.S.C. § 1252.




     4 Neither the IJ nor the BIA reached other elements of past
or future persecution in denying her claims.


                                - 6 -
                           B. DISCUSSION

          On appeal, Martínez-Pérez makes three arguments.   First,

she contends that the IJ and BIA erred by failing to find that she

had suffered past persecution, thus entitling her to a rebuttable

presumption of a well-founded fear of future persecution.    See 8

C.F.R. § 1208.13(b)(1).   Second, Martínez-Pérez argues that the IJ

and BIA erred in denying her claim for humanitarian asylum based

on the same body of evidence she says should have sustained her

past persecution claim.   Third, she argues that the IJ failed to

consider all the evidence at her hearing and applied inapposite

case law in her decision, thus violating Martínez-Pérez's due

process rights.   We discuss each one in turn.

                       1. Standard of Review

          When the BIA "adopts portions of the IJ's findings while

adding its own gloss," as it did here, "we review both the IJ's

and the BIA's decisions as a unit."     Paiz-Morales v. Lynch, 795

F.3d 238, 242 (1st Cir. 2015) (internal quotation marks omitted)

(quoting Renaut v. Lynch, 791 F.3d 163, 166 (1st Cir. 2015)).   We

review the findings of fact supporting the BIA's denial of an

asylum application for substantial evidence, meaning we accept the

findings "as long as they are supported by reasonable, substantial

and probative evidence on the record considered as a whole." Singh

v. Holder, 750 F.3d 84, 86 (1st Cir. 2014) (internal quotation

marks and citation omitted).    We will reject the BIA's findings


                               - 7 -
only when the record compels a contrary outcome.                  Carvalho-Frois

v. Holder, 667 F.3d 69, 72 (1st Cir. 2012); Lopez Perez v. Holder,

587 F.3d 456, 460 (1st Cir. 2009).

                                   2. Asylum

            To qualify for asylum, an applicant must "'demonstrate

a well-founded fear of persecution on one of five protected

grounds' -- race, religion, nationality, political opinion or

membership in a particular social group."              Paiz-Morales, 795 F.3d

at 243 (quoting Singh, 750 F.3d at 86).                     To show that the

circumstances the applicant endured constitute persecution for

purposes of asylum relief, she must show "a certain level of

serious harm (whether past or anticipated), a sufficient nexus

between that harm and government action or inaction, and a causal

connection to one of the statutorily protected grounds." Carvalho-

Frois, 667 F.3d at 72 (citation omitted).

            If the applicant establishes past persecution, there is

"a    rebuttable     presumption    of    a    well-founded      fear   of   future

persecution."      Id. (citation omitted).           Without past persecution,

the   applicant      can   still   show   a    well-founded      fear   of   future

persecution     by     showing     that       "she   genuinely     fears     future

persecution and that her fears are objectively reasonable."                     Id.

(citation omitted).          But in either case, "[a]n inability to

establish any one of the three elements of persecution will result




                                     - 8 -
in a denial of [the] asylum application."                    Id. at 73 (citation

omitted).

              In this case, Martínez-Pérez argues that the BIA erred

in affirming the IJ's conclusion that she had not demonstrated

either past persecution or a well-founded fear of persecution.

The     BIA   and     IJ   rejected       Martínez-Pérez's       past    and     future

persecution      arguments      because      the    harassment    she    endured      in

Honduras did not rise to the level of persecution.                      While we too

find     petitioner's       plight        extremely       sympathetic,     we       must

nevertheless agree with the BIA's and IJ's assessments.

                              a. Past Persecution

              An applicant for asylum "'bears a heavy burden,' and

faces    a    'daunting     task'    in    establishing      subjection        to   past

persecution."       Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013)

(internal quotation marks omitted) (quoting Alibeaj v. Gonzales,

469 F.3d 188, 191 (1st Cir. 2006)).                   To show past persecution,

"the discriminatory experiences must have reached a fairly high

threshold      of   seriousness,      as     well    as    [occurred     with]      some

regularity and frequency."            Alibeaj, 469 F.3d at 191.            Thus, the

severity      and   frequency    of    the    harassment      identified       by    the

applicant are intertwined factors that bear on "the nature and

extent of an applicant's injuries . . . ."                   Vasili, 732 F.3d at

89.      In   other    words,    "persecution        requires    'more    than      mere

discomfiture, unpleasantness, harassment, or unfair treatment' and


                                          - 9 -
'implies some connection to government action or inaction.'"              Id.

at 90 (quoting López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir.

2009)).     We see more than substantial evidence for the BIA and

IJ's conclusions that the incidents Martínez-Pérez identified were

not serious harm rising to the level of past persecution.

            The    three     incidents   Martínez-Pérez    pointed   to    as

evidence of past persecution--the single death threat and bottle-

throw     from    Charlie,   and   the   home   invasion   by   an   unknown

assailant--while undoubtedly scary, do not compel us to find they

were serious enough to constitute persecution.5            We have upheld

BIA decisions concluding that even more frequent and more serious

experiences than the ones endured here were insufficient to show


     5 While Martínez-Pérez also argues that the BIA and IJ erred
by failing to explicitly consider the country-conditions evidence
she submitted, we need not consider that evidence in the mix of
Martínez-Pérez's persecution argument for three reasons. First,
Martínez-Pérez develops no specific arguments about what alleged
persecution these country conditions would support, or why, and
instead cites generally to the entire seventy-four pages of
country-condition evidence.   Without more, such an argument is
insufficiently developed, and thus waived. See United States v.
Sevilla-Oyola, 770 F.3d 1, 19-20 (1st Cir. 2014). Second, even if
it were not waived, "each piece of evidence need not be discussed
in a decision" in order to satisfy our review. Morales v. INS,
208 F.3d 323, 328 (1st Cir. 2000). And third, even if we were to
peer into the country conditions, they do not relate in any way to
the specific instances of harassment or assault Martínez-Pérez
identified. Instead, they discuss shortcomings in the provision
of healthcare or other services and enforcement of anti-
discrimination laws in Honduras, which on their own indicate no
more than a "general climate of discrimination" and without more
do not suffice to show persecution. Attia v. Gonzales, 477 F.3d
21, 24 (1st Cir. 2007).



                                    - 10 -
past persecution.6          See Attia, 477 F.3d at 23–24 (finding no

persecution where the applicant was beaten twice over a nine year

period and experienced a “general climate of discrimination”);

Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (finding no

persecution based on seven arrests accompanied by short periods of

detention and physical beatings over the span of two years); Bocova

v.   Gonzales,      412   F.3d   257,    263   (1st   Cir.   2005)   (finding   no

persecution based on two death threats and a beating resulting in

loss       of   consciousness    and    hospitalization).      And   while   more

physical incidents such as arrest or assault are not necessary to



       6
       Martínez-Pérez alternatively argues, by comparison, that
domestic violence victims have shown persecution in support of an
asylum claim based on the violence or threats of a single
tormentor, e.g., a spouse. This argument does not factor into our
review of the BIA's decision for two reasons. First, this theory
was not raised before the IJ or BIA, and is therefore waived due
to lack of administrative exhaustion. See Sunoto v. Gonzales, 504
F.3d 56, 59 (1st Cir. 2007). Second, Martínez-Pérez's argument
relies on misconstruing Matter of A–R–C–G–, 26 I. & N. Dec. 388
(BIA 2014), overruled by Matter of A-B-, 27 I. & N. Dec. 316, 337
(2018), arguing that this case eliminates the frequency issues
with her persecution evidence, because in the domestic violence
context a single attacker is sufficient.       Instead, that case
reversed an IJ decision denying that domestic violence victims
were a sufficiently particular and visible social group to be
eligible for asylum, rather than analyzing the frequency component
of the persecution analysis. A-R-C-G-, 26 I. & N. Dec. at 388-
89.   In other words, A-R-C-G- is readily distinguishable from
Martínez-Pérez's case. But even if domestic violence cases were
applicable here, she would fare no better.      After the Attorney
General's decision in A-B- overruled A-R-C-G-, interpreting the
"causal connection" and "government nexus" prongs of persecution
analysis to exclude most domestic violence harms from satisfying
that definition, the comparison Martínez-Pérez tries to make does
her no favors. See Matter of A-B-, 27 I. & N. Dec. at 337-38.


                                        - 11 -
show past persecution, "the presence or absence of physical harm

(and, indeed, the degree of harm inflicted) remains a relevant

factor in determining whether mistreatment rises to the level of

persecution."        Lobo v. Holder, 684 F.3d 11, 17 (1st Cir. 2012)

(quoting Gilca v. Holder, 680 F.3d 109, 115 (1st Cir. 2012))

(rejecting past persecution argument supported by "five (or six)

incidents of threats or extortion").                   Here, there is no evidence

in the record that Martínez-Pérez was even slightly injured in any

of these three incidents, at least not physically so, and none of

the incidents compelled her to seek medical attention or help from

the   police.        See    Vasili,   732       F.3d    at   90    (finding     no   past

persecution     in    "traffic     stop     incident"        where      applicant    was

assaulted by socialist party members because "the record [was]

wholly devoid of evidence as to the nature and extent of [his]

injuries,     if     any"    as   well     as     "whether        he   sought   medical

attention").       Accordingly, there was substantial evidence to find,

as the BIA and IJ did, that Martínez-Pérez did not carry her burden

in showing harm serious enough to constitute past persecution.7


      7Even if we were to peek into the other elements of past
persecution, Martínez-Pérez fares no better.    First, Martínez-
Pérez has drawn no connection between any of the incidents and
government action or inaction. At most, she assumes that even if
she had complained to authorities, they would not have done
anything due to the general discrimination towards disabled and
Afro-Honduran people in Honduras.    We have held that the nexus
cannot be shown by "no more than a guess." López-Castro, 577 F.3d
at 53. Second, as Martínez-Pérez conceded at the hearing, she did



                                         - 12 -
                          b. Future Persecution

            As   we   explained     before,    even     though     there   was

substantial evidence supporting the BIA's and IJ's conclusions

that Martínez-Pérez had not shown past persecution, she can still

make out an asylum claim based on a well-founded fear of future

persecution if she can satisfy a two-part inquiry that "she

genuinely   fears     future    persecution   and     that   her   fears   are

objectively reasonable."        Carvalho-Frois, 667 F.3d at 72.       The IJ,

finding   her    testimony     credible,   assumed    that   the   subjective

"genuine fear" prong was satisfied.           However, the IJ concluded,

and the BIA agreed, that her fear was not objectively reasonable

because it was based on the same three incidents that had been

found to be insufficiently serious to show past persecution.               We

agree that substantial evidence supports this conclusion, and need

not tread back through the same analysis.             See López-Castro, 577

F.3d at 54 (finding no future persecution where evidence asserted

in support of past persecution did "not equate with persecution").




not know who the intruder was in the home-invasion incident, and
he did not say anything. Accordingly, as to that incident, she
has additionally not carried her burden in showing that it was
related to either of her statutorily protected categories: race
and membership in a particular social group, i.e., people with
disabilities. Her assumption that she would be targeted for home
invasion because of her disability "left too much to speculation
and surmise." Id.



                                   - 13 -
                          3. Humanitarian Asylum

             Martínez-Pérez alternatively argues that the BIA erred

by failing to consider her claim for humanitarian asylum.8               The

government     contends   that    this   argument     was   waived   because

Martínez-Pérez did not argue it specifically before the IJ.             But

even if it is not waived, the government argues that for the same

reasons Martínez-Pérez's evidence was insufficient in the asylum

context, so shall it be in the humanitarian asylum context.              On

this second point, we agree with the government.

           First,    we   do     not   find   that,   because   it    wasn't

specifically raised before the IJ, this argument was waived.             As

we have previously held, where the applicant "has consistently

asserted eligibility for asylum based on [] past harm" based on

the same protected grounds she now claims for humanitarian asylum,

the applicant need not "explicitly request[] [humanitarian asylum]

from the IJ apart from [her] overall past-persecution-based asylum

claim."   Ordonez-Quino v. Holder, 760 F.3d 80, 95 (1st Cir. 2014).

Accordingly, this argument is properly before us and may be

considered on the merits.

             But this is the end of the good news for Martínez-Pérez.

So-called "humanitarian asylum" provides that an applicant who has


     8 Having failed to argue in her opening brief any error in
either the BIA's denial of her claim for withholding of removal,
or its silence on the IJ's denial of her claim for withholding of
removal under the CAT, we deem these arguments waived.


                                   - 14 -
shown past persecution but failed to show a well-founded fear of

future persecution can still be granted asylum if "(A) [t]he

applicant has demonstrated compelling reasons for being unwilling

or unable to return to the country arising out of the severity of

the past persecution; or (B) [t]he applicant has established that

there is a reasonable possibility that he or she may suffer other

serious harm upon removal. . . ."                  8 C.F.R. § 1208.13(b)(1)(iii).

Having     failed   to    show       past    (or   any)   persecution,        subsection

(b)(1)(iii)    does      not    apply       to   Martínez-Pérez,        and   thus     this

argument fails.       See Ayala v. Holder, 683 F.3d 15, 18 (1st Cir.

2012).

                                     4. Due Process

             Finally, Martínez-Pérez argues that the IJ's failure to

consider      all    of        her     supporting         evidence,       namely,       the

aforementioned      country-condition                evidence,    and     its    use     of

inapplicable case law violated her due process rights.                          Martínez-

Pérez did not raise this argument before the BIA and thus has

"failed to exhaust [her] administrative remedies on that issue,

and   we   consequently        lack    jurisdiction        to    review    the    claim."

Sunoto, 504 F.3d at 59.

                                      C. CONCLUSION

             For the foregoing reasons, we deny the petition for

judicial review.




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