United States Court of Appeals

for the Fifth Circuit

No. 20-60315

Rodolfo Rivera-Flores; Maria Lucrecia Reyes-Oviedo; 

Ronald Roney Rivera-Reyes; Jesser Josue Rivera-Reyes; 

Norma Marbella Rivera-Reyes, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A208 758 033 

BIA No. A208 759 744

BIA No. A206 764 923 

BIA No. A208 759 745

BIA No. A208 758 034 

Before Graves, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 7, 2022

Lyle W. Cayce

Clerk

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Rodolfo Rivera-Flores (“Rivera”), a native and citizen of Honduras, 

sought asylum, withholding of removal, and protection under the Convention 

Against Torture (“CAT”) after the Department of Homeland Security 

charged that he, his wife Maria Lucrecia Reyes-Oviedo (“Reyes”), and their 

children Ronald Roney Rivera-Reyes, Jesser Josue Rivera-Reyes, and Norma 

Marabella Rivera-Reyes were removable as aliens present in the United 

States without being admitted or paroled.1 The immigration judge (“IJ”) and 

Board of Immigration Appeals (“BIA”) rejected his application, so Rivera 

petitioned for our review. For the reasons stated below, we DENY Rivera’s 

petition. 

I 

Rivera’s argument for asylum centers on his service as an elected 

official in Honduras, so we begin by reviewing that history, which we draw 

from the administrative record.

Rivera and his wife, Reyes, were born and lived in Meámbar, 

Honduras. Rivera ran a store attached to his home and was active in local 

politics as a member of the Liberal Party since 1995. Historically, Honduras’ 

principal political parties have been the Liberal Party and the National Party.

In 2000, Rivera was the Liberal Party candidate for Mayor of Meámbar. 

Though Rivera lost this election to the National Party candidate, he was 

automatically appointed as the First Council Member of Meámbar’s 

municipal council and served without incident from 2001 to 2004. 

In 2005, José Manuel Zelaya, a member of the Liberal Party, was 

elected President of Honduras. The following year, Rivera ran for a second 

1 Rivera included his wife and children in his application for relief claiming asylum, 

withholding of removal, and protection under the Convention Against Torture. 

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time as the Liberal Party candidate for Mayor of Meámbar and won. Rivera 

ran on a platform of offering social assistance to those in need and 

implemented several such programs throughout his term as mayor. In 2009, 

President Zelaya was deposed in a military backed coup, and the National 

Party candidate won the subsequent presidential election. That same year, 

Rivera ran for re-election and lost to Adan Rivera Padilla (“Adan”), a 

member of the National Party. Once again, Rivera was automatically 

appointed as the First Council Member for the 2010–2014 term.

Starting in 2010, Adan sought to raise his own salary and began 

eliminating Rivera’s social programs. Due to their political differences, 

Rivera voiced opposition to these and other measures taken by Adan. Adan 

told Rivera to stop opposing him or something bad would happen to Rivera. 

That same year, Adan requested a civil audit into Rivera’s mayoral 

administration in hopes of having him jailed for corruption.

In August of 2010, a campaign advisor to Rivera, Teresa De Jesus 

Flores, was murdered. Rivera suspects that Adan had her killed, because she 

was a vocal opponent to his administration. In December 2012, four masked 

gunmen entered Rivera’s store at approximately 7:00–8:00 PM. Rivera was 

not home, but Reyes and the couple’s three children were present. The 

intruders pointed their weapons at the family and claimed they were there to 

kill Rivera. Since the gunmen could not locate Rivera, they robbed the store 

and left without physically harming any member of the family. Though she 

did not see his face, Reyes identified one of the gunmen as Adelman Rivera 

Padilla (“Adelman”), the brother of Adan. Adelman is the alleged leader of 

a gang called “Los Riveras.” Upon his return home the following day, Rivera 

called the police to report the home invasion, robbery, and threats. Three 

police officers responded to Rivera’s home to take Reyes’ statement, and she 

informed the officers of Adelman’s involvement. Contrary to police 

procedures, none of the officers took any notes or made a written report.

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Rivera contends that Adelman was not arrested, because his brother, the 

mayor, controls the police department’s budget. Adelman was later allegedly 

arrested for the murder of a police officer in the neighboring city of La 

Libertad. Rivera does not allege any additional threats, confrontations, 

harassment, or persecution for nearly two years following the home intrusion.

According to the record, the audit into Rivera’s Mayoral 

administration concluded in November 2014, and no impropriety on Rivera’s 

part was found. In December 2014, Rivera began receiving death threats over 

the phone from an unidentified individual. While the caller never identified 

himself, Rivera believes that the caller was Adelman. The caller told Rivera 

that he planned to kill Rivera since Rivera was not jailed for corruption.

During the second call, in February 2015, the caller informed Rivera that he 

was being followed and would be killed “just as they had murdered” Rivera’s 

campaign advisor. Rivera received a third call in April 2015, in which the 

caller threatened to find and kill Rivera regardless of where he tried to hide 

within Honduras. The caller also stated that he was making these threats “so 

that [Rivera] would not get in the way of his brother.” After a fourth call in 

May 2015, Rivera closed his store and moved his family to Siguetepeque, a 

different city in Honduras. Rivera never reported any of these threats to the 

police in Meámbar. In August 2015, while living in Siguetepeque, Rivera 

received a fifth and final threatening call. After receiving these threats, 

Rivera’s family, apart from Ronald who entered the U.S. on his own in 2014, 

left Honduras and crossed the U.S.-Mexico border in December 2015.

Based on his past disagreements with Adan—stemming from his 

second term as First Council Member which concluded in 2014—the home 

invasion in 2012, and the threatening phone calls, Rivera fears he would be 

killed if he returns to Honduras.

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Rivera’s parents and children from a prior relationship currently 

reside in Meambar and have not suffered any harm or threats. Rivera’s father

told him that Adelman is no longer incarcerated. Rivera contends in his brief 

that if he were returned to any part of Honduras, he would not be protected 

by the police because the National Party controls the government.

On March 23, 2018, the IJ denied Rivera’s application in a written 

decision. The IJ found that although Rivera and Reyes both testified credibly, 

the harm suffered by Rivera in Honduras was insufficiently severe to 

constitute persecution. The IJ also found that though Rivera possesses a 

subjectively genuine fear of future harm, such fear is not objectively 

reasonable. Moreover, even if Rivera had shown an objectively reasonable 

fear of harm if returned to Honduras, the IJ found that Rivera did not show 

that said harm would be inflicted on account of Rivera’s political opinion or 

membership in a particular social group. Because Rivera failed to show that 

he suffered past persecution or had a well-founded fear of future persecution 

that meets the requirements for asylum, the IJ found that he was not eligible 

for asylum or withholding of removal. The IJ also held that Rivera was not 

entitled to protection under CAT, because he did not show that his removal 

would more likely than not result in his torture or that said torture would be 

committed by the government or with governmental acquiescence.

Rivera timely filed an appeal with the BIA. On March 24, 2020, the 

BIA issued an opinion finding that (1) the harm suffered by Rivera did not 

rise to the level of persecution, (2) Rivera did not demonstrate a well-founded 

fear of future persecution on account of any protected ground, and (3) Rivera 

did not demonstrate that it is more likely than not that he would be tortured 

by the government or with the government’s acquiescence if returned to 

Honduras. On April 23, 2020, Rivera filed a Motion to Reconsider with the 

BIA. The BIA denied Rivera’s Motion to Reconsider on November 9, 2020,

because a motion to reconsider is not a vehicle to re-argue previous 

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arguments and Rivera’s Motion repeated the same or similar arguments 

previously raised. He now petitions this court for relief. 

II

To obtain asylum, Rivera must demonstrate that he is a “refugee” 

within the meaning of the Immigration and Nationality Act. 8 U.S.C. § 

1101(a)(42); 8 C.F.R. § 1208.13. He can do so by showing that he has suffered 

past persecution or has a well-founded fear of future persecution on account 

of a protected ground. 8 U.S.C. § 1101(a)(42)(A). 

We only review the decision of the BIA unless the IJ’s decision influenced the BIA’s decision. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018)

(citing Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002)). Here, the BIA issued a decision but relied on the underlying factual findings of the IJ’s opinion, so we also review it. 

We review legal conclusions de novo and factual findings for 

substantial evidence. Revencu v. Sessions, 895 F.3d 396, 401 (5th Cir. 2018) 

(quoting Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)). Factual 

findings will be upheld if they are “supported by record evidence and [are] 

substantially reasonable.” Id. (citing Shaikh v. Holder, 588 F.3d 861, 863 (5th 

Cir. 2009)). We only reverse if the evidence compels a contrary conclusion. 

Id. (citing Chen, 470 F.3d at 1134). Merely “drawing two inconsistent 

conclusions from the evidence” is not enough. Id. (citing Arif v. Mukasey, 509 

F.3d 677, 679 (5th Cir. 2007)). Thus, Rivera bears “the burden of showing 

that the evidence is so compelling that no reasonable factfinder could reach a 

contrary conclusion.” Chen, 470 F.3d at 1134 (citing Zhao v. Gonzales, 404 

F.3d 295, 306 (5th Cir. 2005)). 

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III

“[P]ersecution is an extreme concept that does not include every sort 

of treatment our society regards as offensive.” Arif, 509 F.3d at 680 (quoting

Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d Cir. 1993)). Persecution “generally 

requires a showing that ‘harm or suffering will be inflicted upon [the 

applicant] in order to punish her for possessing a belief or characteristic a 

persecutor sought to overcome.’” Id. (citing Faddoul v. I.N.S., 37 F.3d 185,

188 (5th Cir. 1994)). But “even those subject to brutal physical attack are not 

necessarily victims of persecution.” Gjetani v. Barr, 968 F.3d 393, 398 (5th 

Cir. 2020) (internal quotations omitted).

In a conclusory manner, Rivera asserts that the evidence, in the 

aggregate, shows that he suffered past persecution. Rivera avers that the

collective weight of the civil audit initiated by Adan, the death of his 

campaign advisor, the home invasion, and the threatening phone calls suffice 

to demonstrate persecution. We disagree. “Although we have not foreclosed 

the possibility that extraordinary threats—those ‘of a most immediate and 

menacing nature’—might in themselves amount to persecution, in general, 

unfulfilled threats do not.” Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 

(7th Cir. 2005) (citing Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th Cir.2003)). 

Rivera reports receiving six threats from Adan and the man Rivera believes

was Adelman over the span of five years. For nearly the entirety of those five

years, Adan and Adelman knew where Rivera lived and worked, yet none of

the threats were ever carried out. This harassment does not rise to the level 

of persecution. See Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004)

(holding that “Neither discrimination nor harassment ordinarily amounts to 

persecution under the INA . . . .”). While the robbery of Rivera’s store and 

accompanying threat was undoubtedly a terrifying experience, no member of 

Rivera’s family was physically harmed, and the gunmen never returned to 

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carry out their threat even though Rivera continued to live in the home for 

three more years. To the extent Rivera asserts that the IJ and the BIA erred 

in evaluating the reported incidents, the record does not support his 

assertion. Under the substantial evidence standard, relief is not warranted 

unless the evidence not only supports a conclusion contrary to the BIA’s 

decision but compels it. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 

2005) (citing Zhao, 404 F.3d at 306). Rivera’s assertions do not compel a 

conclusion contrary to that of the BIA on the issue of past persecution. 

Alternatively, asylum may be obtained if the applicant establishes a 

well-founded fear of future persecution through demonstrating “a subjective 

fear of persecution, and that fear must be objectively reasonable.” Eduard,

379 F.3d at 189 (quoting Lopez–Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.

2001)). The IJ found that through his credible testimony, Rivera established 

a subjective fear of persecution; however, he also found that Rivera’s fear was 

not objectively reasonable. The IJ reasoned that Rivera’s alleged persecutors 

knew where he lived at all relevant times yet “never confronted Mr. Rivera 

in person or attempted to physically harm him in any way.” The BIA’s de 

novo review of questions of law and clear error review of findings of fact held 

that Rivera had not carried his burden in demonstrating a well-founded fear 

of future persecution and the IJ had not made a reversible error in predictive 

fact finding and determination. We agree. Substantial evidence supports the 

agency’s decision that Rivera failed to establish an objectively reasonable fear 

of future persecution. Rivera again contends that the cumulative evidence 

provided in his testimony shows that he will be persecuted if he is returned 

to Honduras. However, Rivera fails to refute the agency’s conclusion that he 

is not more likely than not to be persecuted since he was never personally 

confronted despite his alleged persecutors knowing his whereabouts for 

years. Furthermore, Rivera’s testimony is that Adan and Adelman would 

want to harm him due to his status as a Liberal Party politician. Rivera has 

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not been active in politics for the past eight years and testified that he had no 

intention of returning to politics. Thus, it is not objectively reasonable for 

Rivera to fear future persecution on his asserted political grounds. Again, this 

evidence does not compel a conclusion contrary to the BIA’s decision.

See Zhang, 432 at 344. 

Accordingly, substantial evidence supports the BIA’s finding that 

Rivera did not establish that he was subjected to past persecution and does 

not possess a well-founded fear of future persecution. Because that alone 

defeats Rivera’s asylum application, we need not reach the alternate bases for 

the BIA’s denial. 

IV

Because Rivera is not entitled to asylum, he cannot meet the higher 

standard to show that he is eligible for withholding of removal. See Dayo v. 

Holder, 687 F.3d 653, 658-59 (5th Cir. 2012). Moreover, Rivera failed to brief

the denial of withholding, thus, abandoning any challenge to that denial. 

See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir.2004) (noting that 

arguments not raised in the petition for review are considered waived). 

Accordingly, we DENY his petition for review of his application for asylum 

and withholding of removal. 

V 

An applicant for withholding of removal under CAT bears the burden 

of satisfying “a two part analysis—first, is it more likely than not that the 

alien will be tortured upon return to his homeland; and second, is there sufficient state action involved in that torture.” Garcia v. Holder, 756 F.3d 885,

891 (5th Cir. 2014) (citing Tamara–Gomez v. Gonzales, 447 F.3d 343, 350–51

(5th Cir. 2006)). Rivera’s petition fails to address the BIA’s finding for the 

first prong of the standard, that Rivera “has not met his burden to show that 

he will more likely than not be tortured in Honduras.” Accordingly, he has 

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abandoned any challenge to the denial of relief under CAT by failing to brief 

that issue adequately, and his petition for review is denied. 

See Thuri, 380 at 793 (noting that arguments not raised in the petition for review are considered waived). 

VI 

We review the BIA’s denial of a motion to reconsider under “a highly 

deferential abuse-of-discretion standard.” Hernandez-Castillo v. Sessions, 875 

F.3d 199, 203 (5th Cir. 2017) (citing Gomez-Palacios v. Holder, 560 F.3d 354, 

358 (5th Cir. 2008)). Under that standard: 

[We examine] whether the Board has acted within the bounds 

of an abundant discretion granted it by Congress. It is our duty 

to allow [the] decision to be made by the Attorney General’s 

delegate, even a decision that we deem in error, so long as it is 

not capricious, racially invidious, utterly without foundation in 

the evidence, or otherwise so irrational that it is arbitrary rather 

than the result of any perceptible rational approach.

Zhao, 404 F.3d at 304 (citing Pritchett v. I.N.S., 993 F.2d 80, 83 (5th Cir. 

1993)). 

The purpose of a motion to reconsider is to request that the original 

decision be reexamined considering information that was not initially 

available, such as a change of law or an aspect of the case that was overlooked. 

8 U.S.C. § 1229a(c)(6)(C). A motion to reconsider is not a vehicle to raise a 

legal argument that could have been raised earlier or reiterate previously 

considered and rejected arguments. See Matter of O-S-G-, 24 I. & N. Dec. 56, 

58 (BIA 2006). 

The BIA found that Rivera had not identified a change in the law or 

any other factor that would warrant reconsidering its previous order. Instead, 

the BIA held that Rivera raised “the same or similar arguments that were 

raised” in his prior brief on appeal. A review of Rivera’s motion reveals as 

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much.Accordingly, the BIA did not abuse its discretion by finding that Rivera 

essentially repeated the arguments he raised on appeal.

VII

Regarding BIA Appeals Nos. A208 758 033, A208 759 744, A206 764 

923, A208 759 745, and A208 758 034, Rivera’s petition for review is 

DENIED. 

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