                Case: 16-12073      Date Filed: 09/29/2017      Page: 1 of 4


                                                                 [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-12073
                              ________________________

                               Agency No. A029-140-203



BYRON RODOLFO RECINOS-CORONADO,

                                                                     Petitioner,
                                           versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.

                              ________________________

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

                                  (September 29, 2017)

Before WILSON and NEWSOM, Circuit Judges, and WOOD, * District Judge.

PER CURIAM:

       Byron Rodolfo Recinos-Coronado petitions this Court for review of the

decision of the Board of Immigration Appeals. The BIA dismissed his appeal from

*
 Honorable Lisa Godbey Wood, United States District Judge for the Southern District of
Georgia sitting by designation.
               Case: 16-12073    Date Filed: 09/29/2017    Page: 2 of 4


the denial of his petitions for asylum, withholding of removal, and relief under the

Convention Against Torture. After oral argument, we grant the petition for review

in part and deny it in part.

                                          I

      We grant the petition for review on Recinos-Coronado’s petitions for asylum

and withholding of removal. The BIA erred as a matter of law when it excluded

from its past-persecution analysis the sexual abuse that Recinos-Coronado suffered

at the hands of his uncle on the ground that Recinos-Coronado failed to report it.

We have treated an applicant’s failure to report abuse as separate from the question

whether the applicant suffered past persecution. See Lopez v. U.S. Att’y Gen., 504

F.3d 1341, 1344–45 (11th Cir. 2007). And in previously determining that an

applicant suffered persecution based on cumulative incidents, we included in the

past-persecution analysis (without discussion) an incident that the applicant failed

to report—there, threatening “graffiti at his wife’s farm which alluded to

[guerillas’] presence in the area, and referenced him specifically.” Mejia v. U.S.

Att’y Gen., 498 F.3d 1253, 1255–57 (11th Cir. 2007). By refusing to consider the

uncle’s abuse solely on the ground that Recinos-Coronado failed to report it, the

BIA erred.

      It is not for us, at this stage, to decide on the merits the question whether

Recinos-Coronado experienced past persecution. See Immigration &



                                          2
              Case: 16-12073      Date Filed: 09/29/2017   Page: 3 of 4


Naturalization Serv. v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per curiam)

(summarily reversing a Ninth Circuit decision that, following partial reversal of the

BIA’s asylum decision, impermissibly decided persecution issue rather that

remanding to agency for determination in the first instance). Rather, the BIA

should (after correcting for the legal error that we have identified) consider in the

first instance whether Recinos-Coronado suffered past persecution “on account of”

a protected characteristic, as well as his eligibility for asylum and withholding of

removal.

                                          II

      We deny the petition for review on Recinos-Coronado’s petition for

protection under the Convention Against Torture. An applicant is entitled to

protection under the Convention Against Torture if he shows “that it is more likely

than not that he . . . would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2). To qualify an applicant for relief, the alleged

torture must both constitute “an extreme form of cruel and inhuman treatment,” id.

§ 1208.18(a)(2), and be “inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity,” id.

§ 1208.18(a)(1).

      The BIA’s determination that Recinos-Coronado is not entitled to relief

under the Convention Against Torture is supported by substantial evidence.



                                           3
               Case: 16-12073      Date Filed: 09/29/2017    Page: 4 of 4


Recinos-Coronado, a homosexual man, contends that LGBT individuals face

dismal conditions in his native Guatemala, but even the conditions he alleges do

not rise to the level of “torture,” let alone torture at the hands (or with the

acquiescence of) the Guatemalan government.

                                        * * *

       For the foregoing reasons, we GRANT the petition in part and DENY the

petition in part.




                                            4
