NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

Nos. 21-1314 & 22-3300 

______________ 

YESSICA FERNANDA MOLINA-RAMIREZ, 

Petitioner 

v. 

ATTORNEY GENERAL UNITED STATES OF AMERICA 

______________ 

On Petition for Review of Orders from 

the Board of Immigration Appeals 

(Agency No. A206-627-295) 

Immigration Judge: Steven A. Morley 

______________ 

Submitted Under Third Circuit L.A.R. 34.1(a) 

October 5, 2023 

______________ 

Before: SHWARTZ, MATEY, and FISHER, Circuit Judges. 

(Filed: October 6, 2023) 

______________ 

OPINION∗

______________ 

∗

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent. 
2 

SHWARTZ, Circuit Judge. 

 Petitioner Yessica Fernanda Molina-Ramirez seeks review of the orders of the 

Board of Immigration Appeals (“BIA”) dismissing her: (1) appeal of the Immigration 

Judge’s (“IJ”) denial of her applications for asylum and withholding of removal and (2) 

motion to reopen based on ineffective assistance of counsel. For the following reasons, 

we will deny the petition. 

I 

Petitioner, a native and citizen of Honduras, entered the United States without 

authorization as an unaccompanied minor and the Department of Homeland Security 

commenced removal proceedings under 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A). 

Petitioner conceded her removability but, relevant here, requested asylum and 

withholding of removal. 

At her merits hearing, Petitioner testified that she had a close relationship with her 

older cousin, Mainor Jose Ramirez,1

 who regularly brought her to and from school. In 

2010, when Petitioner was ten years old, a car without license plates followed Mainor 

while he was driving Petitioner home from school. As Mainor dropped Petitioner off at 

her house, he warned her “to be careful” because they were being followed. AR 723-24. 

Later that day, unidentified members of a local gang killed Mainor and dumped his body 

in front of his house, located next door to Petitioner’s house, and yelled that they “were 

1

 Parts of the record refer to Mainor as “Minor,” see, e.g., AR 642, and “Maynor,” 

see, e.g., AR 608. 
3

going to continue on with the rest of the Ramirez family.” AR 724. Petitioner 

subsequently gave a statement to the police. 

In 2013, Petitioner noticed masked individuals following her while she was 

shopping. Fearing for her safety, Petitioner ran home and, after she entered her house,

the pursuers fired three shots into the air and stated that “they were going to continue 

doing this to the Ramirez family.” AR 738. Petitioner reported the incident to the police

and fled Honduras eight months later. Petitioner also testified that she (1) experienced no 

other threats or attacks in Honduras, and (2) has more than thirty family members still 

living in the same area in Honduras, none of whom have been threatened or harmed since 

Mainor’s murder, except for a cousin’s husband, who was killed for unknown reasons.

The IJ found Petitioner credible but determined that she was not eligible for,

among other things, asylum. The IJ observed that even though her proposed particular 

social groups (“PSGs”), namely, (1) the Ramirez family and (2) witnesses who report 

crime, were cognizable, she did not establish past persecution because she was never 

directly harmed. The IJ also found that she did not show a well-founded fear of future 

persecution on account of her membership in either of these groups because: (a) “many 

family members” continued to reside in the same area without incident, which belied

Petitioner’s objective fear of persecution based on her membership in the Ramirez 

family, AR 647, and (b) Petitioner was not harmed in the years after filing the first police 

report, or in the months after filing the second, which similarly undermined her objective
4 

fear of persecution for being witness who reported a crime.2 Accordingly, the IJ denied 

Petitioner’s requests for relief and ordered her removal.3

 

Petitioner appealed to the BIA, which dismissed the appeal, finding “no clear 

error” with the IJ’s determination that Petitioner lacks an objectively reasonable, wellfounded fear of persecution if removed to Honduras for substantially the same reasons set 

forth by the IJ.4

 AR 4. 

Petitioner thereafter obtained new counsel and filed a motion to reopen her 

removal proceedings based on the ineffective assistance of her prior counsel, arguing that 

(1) counsel was not competent because he did not assert that she had a well-founded fear 

of persecution based upon the existence of a pattern or practice of persecution against 

witnesses who report crime to the police in Honduras, and (2) she was prejudiced by her 

2

 In reaching this determination, the IJ considered country conditions evidence, 

which discussed the difficulties experienced by witnesses who report crimes in Honduras. 

3

 The IJ determined that because Petitioner did not establish a claim for asylum, 

she was also unable to establish a claim for withholding of removal. 

4

 Petitioner contends that the BIA incorrectly reviewed the IJ’s reasonable fear of 

persecution determination for clear error, rather than conducting a de novo review. Pet. 

Br. at 21-22. While de novo review of this legal question was warranted, see Huang v. 

Att’y Gen., 620 F.3d 372, 384-85 (3d Cir. 2010), the BIA’s error is harmless and does not 

require remand because “it is highly probable that the error did not affect the outcome of 

the case,” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (holding that 

“harmless error analysis should apply in immigration cases”); NLRB v. Wyman-Gordon 

Co., 394 U.S. 759, 766 n.6 (1969) (stating that remand to the agency is unnecessary 

where it “would be an idle and useless formality”). The BIA adopted the IJ’s factual 

findings, and while it “discern[ed] no clear error” with the IJ’s conclusion as to the 

reasonableness of Petitioner’s fear of persecution, a de novo review shows that Petitioner 

lacks an objectively reasonable fear of persecution, and no other conclusion could be 

reached. AR 4. Thus, the BIA’s incorrect expression of the standard of review was 

harmless. 
5 

prior counsel’s failure to raise that claim.5 The BIA assumed that Petitioner satisfied the 

procedural requirements for bringing an ineffective assistance of counsel claim and 

denied the motion because she failed to show that (1) prior counsel was incompetent for 

“making a reasonable tactical decision” in not seeking to meet “the stringent standard” 

for a pattern or practice claim, AR 4, and (2) there was a “significant likelihood” that the 

IJ would not have granted relief as the country conditions evidence did not demonstrate a 

pattern or practice of persecution against witnesses in Honduras, AR 4. 

Petitioner petitions for review of both orders. 

II 

A6

We first review Petitioner’s requests for asylum and withholding of removal. To 

be eligible for asylum, a petitioner must show that she is “unable or unwilling to return 

to, and is unable or unwilling to avail [herself] . . . of the protection of, [the country in 

which she last resided] because of persecution or a well-founded fear of persecution on 

account of . . . membership in a particular social group.” 8 U.S.C. §§ 1101(a)(42)(A), 

5

 Petitioner submitted country conditions evidence in support of her motion, , 

some of which is duplicative of the evidence that Petitioner’s prior counsel had submitted 

before the IJ. 

6 The IJ had jurisdiction over Petitioner’s immigration proceedings under 8 C.F.R. 

§ 1208.2, and the BIA had jurisdiction over the appeal pursuant to 8 C.F.R. §§ 1003.1(b) 

and 1240.15. We have jurisdiction over final orders of removal under 8 U.S.C. § 1252. 

When the BIA issues its own decision on the merits, we review that decision 

rather than that of the IJ. Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014). We 

review legal determinations de novo and “accept factual findings if supported by 

substantial evidence,” meaning we must “uphold the agency’s determination unless the 

evidence would compel any reasonable fact finder to reach a contrary result.” Sesay v. 

Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015) (quotation marks omitted). 
6 

1158(b)(1)(B)(i); see also Garcia v. Att’y Gen., 665 F.3d 496, 503 (3d Cir. 2011). 

Persecution encompasses “threats to life, confinement, torture, and economic restrictions 

so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 

1240 (3d Cir. 1993). Where a petitioner has not experienced past persecution,7 she must 

establish a well-founded fear of future persecution by demonstrating both an objective 

and subjective fear of persecution. Huang v. Att’y Gen., 620 F.3d 372, 381 (3d Cir. 

2010). The objective component requires that “a reasonable person in the [applicant’s] 

circumstances would fear persecution if returned to the country in question.” Zubeda v. 

Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003), abrogated on other grounds by Auguste v. 

Ridge, 395 F.3d 123 (3d Cir. 2005). 

Here, substantial evidence supports the BIA’s conclusion that Petitioner lacks an 

objectively reasonable fear of future persecution based on her membership in either of 

her PSGs. With respect to Petitioner’s fear of persecution on account of her family 

membership, she testified that gang members (1) murdered Mainor and threatened to 

“continue on with the rest of the Ramirez Family,” AR 724, and (2) three years later 

chased Petitioner into her home, fired shots into the air, and again threatened to “continue 

doing this to” her family, AR 738. These undoubtedly distressing incidents do not 

7

 Petitioner contends that the IJ incorrectly required her to demonstrate physical 

harm to demonstrate past persecution, but she did not raise that claim before the BIA and 

thus we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. 

Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (“[A noncitizen] is required to raise and 

exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve 

the right of judicial review of that claim.”). She presented no other arguments 

challenging the BIA’s past persecution ruling. 
7 

compel the conclusion that Petitioner has an objectively reasonable fear of persecution 

based on her family membership because more than thirty of her family members 

continued to live in the area surrounding her home in Honduras and none, other than her 

cousin’s husband, were harmed or threatened after Mainor’s murder.8 See Hernandez 

Garmendia v. Att’y Gen., 28 F.4th 476, 480, 483 (3d Cir. 2022) (noting that a familybased asylum claim would be weakened by the fact that petitioner’s family had not been 

threatened despite living in same home); cf. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 

347 (3d Cir. 2008) (deeming threats and attacks on a noncitizen’s family members to be 

corroborating the reasonableness of her fear of persecution). Similarly, Petitioner’s fear 

of persecution on account of reporting a crime is not objectively reasonable because she 

lived without incident in Honduras for approximately three years after making her first 

statement to the police, and another eight months after making her second report. 

Therefore, the BIA’s conclusion that Petitioner lacks a reasonable fear of persecution is 

supported by substantial evidence and, accordingly, she is not entitled to asylum. 

Because Petitioner has not met the standard for asylum, she does not meet the 

more demanding standard for withholding of removal, Thayalan v. Att’y Gen., 997 F.3d 

132, 138 (3d Cir. 2021) (holding that the standard for withholding of removal is more 

demanding than the asylum standard). 

8

 Petitioner’s assertion that the BIA “cherry-picked” evidence in affirming the IJ’s 

factual findings by, for example, not referencing the death of her cousin’s husband, is 

unavailing. Pet. Br. 24-25. While the BIA must consider all the evidence presented, as it 

did here, it “need not discuss every piece of evidence mentioned by an asylum applicant.” 

Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019) (quotation marks omitted). 
8 

B9

We next consider whether the BIA abused its discretion in denying Petitioner’s 

motion to reopen based on her claim that her prior counsel was ineffective because he 

failed to raise a “pattern or practice” of persecution claim. We conclude that it did not. 

A petitioner seeking to reopen her removal proceedings based on ineffective 

assistance of counsel must demonstrate that (1) “competent counsel would have acted 

otherwise,” and (2) there is a “reasonable likelihood” that, but for counsel’s errors, the 

result of the proceedings would have been different.10 Fadiga, 488 F.3d at 157-59 

(quotation marks omitted). Even if the BIA abused its discretion in concluding that 

counsel provided competent representation, we cannot say that its conclusion as to 

prejudice was “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 

251 (3d Cir. 2006) (quotation marks omitted).

To prove a pattern or practice claim, a petitioner must show “systematic, 

pervasive, or organized” persecution of similarly situated individuals. Ghebrehiwot v. 

Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006) (quotation marks omitted). The country 

9 The BIA had jurisdiction to review Petitioner’s motion to reopen under 8 C.F.R. 

§ 1003.2(a). We have jurisdiction under 8 U.S.C. § 1252(a). 

We review the denial of a motion to reopen for abuse of discretion, “regardless of 

the underlying basis of the [noncitizen’s] request for relief.” Pllumi v. Att’y Gen., 642 

F.3d 155, 158 (3d Cir. 2011). We review the facts underlying the BIA’s discretionary 

denial of a motion to reopen for substantial evidence. Korytnyuk v. Ashcroft, 396 F.3d 

272, 284-85 (3d Cir. 2005). We review ineffective assistance of counsel claims de novo. 

Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). “[Q]uestions of law, such as 

whether the BIA applied the correct legal standard in considering the motion to reopen[,] 

. . . are also reviewed de novo.” Id. at 153-54. 

10 Petitioner must also satisfy certain procedural requirements, see Fadiga, 488 

F.3d at 155-56, but the BIA assumed that they were satisfied, and we will do the same. 
9 

conditions evidence Petitioner presented shows sporadic “incidents of violence” against 

witnesses in Honduras, AR 4, but does not show pervasive or organized persecution of 

those reporting crimes and thus is insufficient to establish a reasonable likelihood of a 

pattern or practice of persecution, see Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) 

(holding that there was no pattern or practice of persecution despite “widespread attacks,” 

including “riots, vandalism, and robbery”). Therefore, Petitioner was not prejudiced by 

her prior counsel’s failure to pursue this claim, and as a result, the BIA did not abuse its 

discretion in denying Petitioner’s motion to reopen based upon alleged ineffective 

assistance of counsel.11 

III 

 For the foregoing reasons, we will deny the petition for review. 

11 Petitioner asserts that the BIA improperly required Petitioner to show an actual 

pattern or practice of persecution, rather than merely establishing a prima facie case. The 

BIA, however, used the correct legal standard to analyze the prejudice prong. AR 4 

(assessing whether “she has []shown ‘a significant likelihood that the [IJ] would not have 

entered an order of removal absent [former] counsel’s [alleged] errors.” (citing Fadiga, 

488 F.3d at 159)).