United States Court of Appeals

for the Fifth Circuit

No. 20-60367

Rosaura Aurora Sanchez-Amador; Iverson Joshua 

Martinez-Sanchez; Angel Arturo Martinez-Miranda, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A206 890 807 

BIA No. A206 890 808 

BIA No. A216 020 833

Before Davis, Smith, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Rosaura Aurora Sanchez-Amador, a native and citizen of Honduras, 

sought asylum in the United States after the Department of Homeland 

Security charged that she, her husband Angel Arturo Martinez-Miranda, and 

her minor son Iverson Joshua Martinez-Sanchez were removable as aliens 

United States Court of Appeals

Fifth Circuit

FILED

April 11, 2022

Lyle W. Cayce

Clerk

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present in the United States without being admitted or paroled.1 The 

immigration judge (“IJ”) and Board of Immigration Appeals (“BIA”)

rejected her application, so Sanchez-Amador petitioned for our review. 

Given the extensive and complex discussion of her application below, we 

focus on a dispositive question. Namely, whether an applicant’s subjective 

belief that authorities would be unwilling or unable to help them is sufficient 

for asylum eligibility when paired with country condition evidence 

supporting that belief, notwithstanding that the underlying events do not 

support that conclusion. We think not, so we DENY the petition.

I

On April 20, 2018, the IJ held a hearing on the merits of SanchezAmador’s application. She testified that she had been sexually abused 

throughout her childhood by her cousin, uncle, stepfather, and landlord’s 

son. She has confided at least some of these events to her mother, husband, 

a church friend, and her therapist, but did not report them to the police. 

Sanchez-Amador believed that the police would not help her unless she could 

provide a video, photograph, or other physical evidence. She also testified 

that Honduran police often do not act on sexual assault claims, that her 

mother and aunt also suffered sexual assaults, and that Honduran women in 

1 Specifically, Sanchez-Amador included her husband and son in her application 

for relief claiming asylum, withholding of removal, and protection under the Convention 

Against Torture. Because Sanchez-Amador does not challenge the denial of Convention 

Against Torture relief, that issue is abandoned on appeal. See CenturyTel of Chatham, LLC 

v. Sprint Commc’ns Co., 861 F.3d 566, 573 (5th Cir. 2017).

It is unclear whether Sanchez-Amador also challenges denial of relief under 

withholding of removal, so that basis for relief may be abandoned as well. In any event, 

withholding of removal requires the same showing as asylum yet presents “a higher bar” 

than asylum does. Thus, because Sanchez-Amador has not carried her burden as to asylum, 

she cannot be entitled to relief on withholding of removal grounds either. See Gonzales-Veliz 

v. Barr, 938 F.3d 219, 224 (5th Cir. 2019) (quotation omitted).

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general are vulnerable to sexual assault due to a culture of “machismo.” 

When she was fifteen, Sanchez-Amador became pregnant and moved in with

her husband, Martinez-Miranda, to escape her stepfather.

Martinez-Miranda later moved to the United States in order to 

support Sanchez-Amador’s university studies. In June 2014, SanchezAmador was living in her in-laws’ apartment when she returned home to find 

a note from the MS-13 gang threatening to kill her and her son if she did not 

pay 1,000 lempiras each month. She did, but three months later she received 

another note demanding 3,000 lempiras per month. She believed that MS-13 

targeted her for extortion because she was studying rather than working, and 

her husband was in the United States supporting her financially. The second 

amount proved too much, so Sanchez-Amador moved in with her mother to 

make MS-13 think that she had separated from her husband and would, 

therefore, be a less lucrative target. 

The next month, a member of MS-13 named Macuto confronted her. 

Sanchez-Amador explained that she was separated from her husband and did 

not have money to give him. Macuto replied that if she could not give him 

money, she had to be “his woman.” Sanchez-Amador interpreted this as 

Macuto’s demand that she join the gang and have sex with him. She refused, 

and Macuto told her that MS-13 would find her no matter where she hid. He 

gave her a one-week deadline to either pay the amount he demanded or give 

in to his alternative demands. Sanchez-Amador reported these events to the 

police. The police said they would investigate but that it would take two 

weeks. Rather than wait, Sanchez-Amador fled and eventually made it to the 

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United States. She fears returning because she believes that MS-13 will find 

her and harm her.2

On June 25, 2018, the IJ denied Sanchez-Amador’s application. The 

IJ found that both Sanchez-Amador and Martinez-Miranda were credible 

witnesses. Nevertheless, three of the four social groups proposed by 

Sanchez-Amador were not cognizable. Further, although the IJ found that 

Sanchez-Amador suffered persecution, she failed to show that this 

persecution was motivated by her membership in one of her proposed social 

groups. Likewise, Sanchez-Amador failed to demonstrate the requisite fear 

of future persecution if returned to Honduras. What Sanchez-Amador fears, 

the IJ reasoned, is general violence and civil strife, not harm directed at her 

and motivated by her membership in a particular social group. Further still, 

Sanchez-Amador failed to show that the government was either unable or 

unwilling to act because she never reported the sexual abuse she suffered, and

she left before the police could complete their investigation into Macuto’s 

threats. Because Sanchez-Amador failed to show that she suffered past 

persecution or had a well-founded fear of future persecution that meets the 

requirements for asylum, the IJ found that she was not eligible for it or 

withholding of removal. The IJ also found that Sanchez-Amador had failed 

to meet her burden for CAT relief. The BIA adopted and affirmed the IJ 

decision and also denied asylum on the basis of an additional group SanchezAmador proposed. 

2 Martinez-Miranda also testified to, over the course of his life, being threatened 

by MS-13 and witnessing violence they perpetrated. He also testified that he believed that 

neither he nor the police could protect his family from them.

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II

To obtain asylum, Sanchez-Amador must demonstrate that she 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. She can do so by showing that she 

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). Here, that

protected ground is membership in one of Sanchez-Amador’s proposed 

“particular social group[s].” Id. Because her persecutors were nongovernment actors, she must also establish that the authorities were “unable 

or unwilling to control” them. Tesfamichael v. Gonzales, 469 F.3d 109, 113 

(5th Cir. 2006); Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006) 

(government must condone persecution or “demonstrate complete 

helplessness”) (quotation omitted); Mendez-Galdamez v. Barr, 772 F. App’x 

155, 156 (5th Cir. 2019) (per curiam); Arevalo-Velasquez v. Whitaker, 752 F. 

App’x 200, 201 (5th Cir. 2019) (per curiam).3

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. 

3 After the BIA decided the matter, the administration changed its guidance on 

asylum claims. The IJ and BIA relied on Matter of A-B- (A-B-I), 27 I. & N. Dec. 316 (A.G. 

2018), in denying Sanchez-Amador’s application. On June 16, 2021, the Attorney General 

issued Matter of A-B- (A-B-III), withdrawing A-B-I and instructing the BIA to “follow preA-B-I precedent.” 28 I. & N. Dec. 307, 309 (A.G. 2021). We subsequently clarified that AB-III has not undermined circuit precedent. Jaco v. Garland, 24 F.4th 395, 403–07 (5th Cir. 

2021) (discussing, inter alia, Gonzales-Veliz, 938 F.3d at 219). Thus, our caselaw on the 

“unable or unwilling” standard remains intact. See Meza Benitez v. Garland, No. 19-60819, 

2021 WL 4998678, at *4 n.1 (5th Cir. Oct. 27, 2021) (per curiam); see, e.g., Garcia-Gonzalez 

v. Garland, No. 20-60581, 2022 WL 243908, at *1 (5th Cir. Jan. 25, 2022) (per curiam);

Rivera-Sorto v. Garland, 858 F. App’x 768, 769 (5th Cir. 2021) (per curiam); CastilloMartinez v. Garland, No. 20-60276, 2021 WL 4186411, at *1 (5th Cir. Sept. 14, 2021) (per 

curiam); Perez-Gomez v. Garland, 857 F. App’x 814, 815 (5th Cir. 2021) (per curiam);

Orellana-Martinez v. Garland, No. 20-60598, 2021 WL 4597774, at *2 (5th Cir. Oct. 6, 

2021) (per curiam).

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2018) (citation omitted). Here, the BIA adopted and affirmed the IJ’s 

opinion, expressly basing its decision on “the reasons discussed by the [IJ],” 

so we review it as well. See Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).

We review legal conclusions de novo and factual findings for 

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

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

[are] substantially reasonable.” Id. We only reverse if the evidence compels 

a contrary conclusion. Id. (citation omitted). Merely “drawing two 

inconsistent conclusions from the evidence” is not enough. Id. (quotation 

omitted). Thus, Sanchez-Amador bears “the burden of showing that the 

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

conclusion.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (citation 

omitted). 

III

Substantial evidence supports the BIA’s finding that SanchezAmador did not establish that the government is unable or unwilling to 

control the alleged persecutors. Because that alone defeats SanchezAmador’s asylum application, we need not reach the alternate bases for the 

BIA’s denial.

To begin, Sanchez-Amador only seeks review of the BIA’s 

determination on the “unable or unwilling” standard vis-à-vis her fear of 

MS-13 retaliation. Thus, she has waived any challenge to the BIA’s findings 

as they pertain to her stepfather and other private actors who have or may yet 

persecute her. See CenturyTel, 861 F.3d at 573; cf. Inuwa v. Garland, 859 F. 

App’x 719, 720 (5th Cir. 2021) (per curiam) (failure to challenge BIA 

credibility determination). At most, her brief mentions the issue in passing 

but does not argue it. See Kia v. Barr, 794 F. App’x 403, 408 (5th Cir. 2019)

(per curiam) (finding waiver in those circumstances).

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Even if that issue was not waived, Sanchez-Amador testified that she 

never told the police about the outrages she suffered. We have already held 

that “subjective belief that it would have been futile to report . . . abuse to 

authorities” is not sufficient to overturn the BIA under the substantial 

evidence standard. Arevalo-Velasquez, 752 F. App’x at 202.4 True, SanchezAmador has presented substantial country condition evidence speaking to 

how ineffective the authorities have been at combatting domestic violence. 

But one would be hard-pressed to find that the authorities were unable or 

unwilling to help her if she never gave them the opportunity to do so. Thus, 

we cannot say that “no reasonable factfinder could reach a contrary 

conclusion.” Chen, 470 F.3d at 1134.

As for MS-13, substantial evidence likewise supports the BIA’s 

conclusion. Recall that Sanchez-Amador reported Macuto’s threats to the 

police, who told her that they would “proceed with the claim.” When she 

checked in, the police informed her “that the process would take at least two 

weeks.”5 She fled before those two weeks expired, and there is no evidence 

of what happened with the claim. Thus, the evidence supports the BIA’s 

finding that Sanchez-Amador “successfully reported one incident with the 

gang member to the police, but did not pursue the issue.”6 The fact that the 

4 Arevalo-Velasquez is not precedential, but we find it persuasive. See Ballard v. 

Burton, 444 F.3d 391, 401 (5th Cir. 2006).

5 Sanchez-Amador presents conflicting accounts of when she checked in with the 

police. In a sworn statement, she testified that she did so a week after filing the complaint. 

In her oral testimony, she said that she did so after she returned home. In her petition for 

review before this court, she says that she “followed up the next day.”

6 This case is therefore distinct from cases where the applicant sought help from 

the government and that help was not forthcoming. Cf. Tabora Gutierrez v. Garland, 12 

F.4th 496, 504 (5th Cir. 2021) (in the Convention Against Torture context, police 

instructed applicant to flee the country); id. at 506 (Davis, J., dissenting) (applicant cited

“numerous incidents to demonstrate that Honduran public officials had been willfully blind 

to the torture he suffered”); id. at 506-07 (“Tabora Gutierrez said that he went to the 

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police could not complete their investigation to Sanchez-Amador’s 

satisfaction within a single week does not compel the conclusion that they 

were unable or unwilling to help her.7

IV

To successfully apply for asylum, Sanchez-Amador must show that 

the Honduran authorities are unable or unwilling to protect her from her 

persecutors. Because the BIA found that she did not make that showing, and 

because substantial evidence supports that finding, we DENY the petition 

for review.

police to press charges against the attackers, but the police did not investigate the attacks 

or take steps to arrest the individuals who had beaten him”).

7 Indeed, Sanchez-Amador’s own expert testified that police “prefer to investigate 

crimes” like “gang violence.”

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