Barnica-Lopez v. Garland

United States Court of Appeals For the First Circuit No. 21-1313 BRENDA BARNICA-LOPEZ; ASHLEY NICOLE LOPEZ-BARNICA, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Selya, Lynch, and Howard, Circuit Judges. Kevin P. MacMurray, Daniel T. Welch, and MacMurray & Associates LLC on brief for petitioners. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Alexander J. Lutz, Trial Attorney, Office of Immigration Litigation, on brief for respondent. February 8, 2023 HOWARD, Circuit Judge. Petitioners Brenda Barnica-Lopez ("Barnica") and her daughter, Ashley Nicole Lopez-Barnica ("Ashley"), both natives and citizens of Honduras, petition for review of a final order of the Board of Immigration Appeals ("BIA"), which upheld an immigration judge's ("IJ") denial of their request for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The agency denied their requests for asylum and withholding of removal based on a finding that they had failed to demonstrate a well-founded fear of future persecution "on account of" their membership in a protected social group consisting of their nuclear family. Because we conclude that this finding is supported by substantial evidence and that the petitioners' CAT claim was not administratively exhausted, we deny the petition in part and otherwise dismiss it for lack of jurisdiction. I. From 2010 to 2013, Barnica and her long-time life partner and now husband, Leslie Rene Lopez ("Rene"), were engaged in business buying gold jewelry in Guatemala and reselling it for profit in Honduras.1 As part of this venture, Rene drove back and forth between Guatemala and Honduras two to three times per month 1 We draw the relevant facts from the administrative record. See Adeyanju v. Garland, 27 F.4th 25, 31 (1st Cir. 2022). This includes testimony before the IJ from Barnica and her husband, which the IJ found to be credible and corroborated. - 2 - to buy and transport the jewelry. He testified that he travelled the same route each time and was often accompanied by Barnica or other associates. For approximately two years, Rene completed these trips without incident. While carrying a large amount of jewelry during one of these trips in June 2012, Rene and Barnica were closely followed by a truck for about 30 minutes. They eventually shook the tail, but the event left them frightened. Nevertheless, the couple continued the periodic trips to Guatemala over the next several months. In April 2013, however, a similar incident occurred that escalated into a violent attack involving gunfire and at least one of the attackers being shot and perhaps killed by one of Rene and Barnica's two traveling companions. Rene and Barnica reported this incident to two separate police agencies, at least one of which conducted an immediate if perhaps incomplete investigation. Following this incident, Rene and Barnica discontinued their gold re-sale business, fearing that the attack was an attempted robbery and that any …

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