IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60393

ROSA ALBA MARTINEZ-LOPEZ; JOSAFAT NAHUM SIERRA-MARTINEZ, 

 Petitioners

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before JOLLY, SMITH, and COSTA, Circuit Judges.

PER CURIAM:

Rosa Alba Martinez-Lopez, on behalf of herself and her minor son Josafat 

Nahum Sierra-Martinez, seeks review of a Board of Immigration Appeals 

decision affirming the denial of their requests for asylum, withholding of 

removal, and protection under the Convention Against Torture (CAT). We 

deny the petition.

I.

Martinez-Lopez and her son are from Honduras. They entered the 

United States without documentation in October 2015. Each received a notice 

to appear before an immigration judge (IJ), but the notices stated that the date 

and time of the appearance were “To Be Determined.” A later notice provided 

United States Court of Appeals

Fifth Circuit

FILED

December 4, 2019

Lyle W. Cayce

Clerk

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a date and a time for a hearing in Houston. Martinez-Lopez and her son 

appeared at the prescribed time and place.

At a subsequent hearing before the IJ, Martinez-Lopez admitted through 

counsel that she and her son were inadmissible aliens. She applied for asylum, 

withholding of removal, and relief under the CAT.

In support of her application, Martinez-Lopez related the following 

instances of violence and harassment against her and her family in Honduras. 

Her brother was murdered after dropping off his son at school. The police did 

not investigate his murder, even though Martinez-Lopez’s family filed a police 

report. A month later, several of Martinez-Lopez’s relatives were killed too. 

This time, police arrested a gang member. Martinez-Lopez also noted that her 

father was killed over twenty years ago, and the police never investigated his 

murder.

Martinez-Lopez testified that the harassment of her family continued 

after her brother’s murder. For example, men in a truck followed MartinezLopez, her mother, and her sisters. Even after Martinez-Lopez relocated to the 

United States, men followed her mother and sisters on at least one other 

occasion. They have not, however, encountered any problems in over a year. 

They now live in another part of Honduras.

Finally, Martinez-Lopez said that gang members harassed her at the cell 

phone store where she worked in Honduras. She testified that they came to 

the store five days a week and demanded that she and other employees hand 

over SIM cards. The gang members threatened to kill the store employees and 

their families if they did not cooperate. Again, the police took no action.

As a result of these events, Martinez-Lopez fears returning to Honduras 

because she believes the “people who killed [her] brother and the gang 

members who made [her] program the sim cards” would find and kill her.

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The IJ denied Martinez-Lopez’s application. Although she found 

Martinez-Lopez to be credible, the judge determined that Martinez-Lopez’s 

testimony did not satisfy the requirements for asylum, withholding of removal, 

or protection under the CAT. The Board of Immigration Appeals affirmed the 

IJ’s decision without opinion. Martinez-Lopez timely petitioned this court for 

review.

II.

Because the Board affirmed the IJ’s decision without opinion, the IJ’s 

decision is the final agency determination subject to our review. See Soadjede 

v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003) (per curiam). We review an IJ’s 

factual determinations for substantial evidence, overturning a finding only 

when the evidence compels a contrary result. Zhang v. Gonzales, 432 F.3d 339, 

344 (5th Cir. 2005).

III.

As a threshold matter, Martinez-Lopez argues that, under Pereira v. 

Sessions, 138 S. Ct. 2105 (2018), the IJ lacked jurisdiction over her case. 

Pereira held that “[a] putative notice to appear that fails to designate the 

specific time or place of the noncitizen’s removal proceedings is not a ‘notice to 

appear under section 1229(a),’ and so does not trigger the stop-time rule.” Id.

at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)). Martinez-Lopez asserts that

the notices sent to her and her son were similarly defective as they too failed 

to specify a date and time. Consequently, she says, there was no jurisdiction 

because 8 C.F.R. § 1003.14(a) vests jurisdiction in an immigration court only 

after the Department of Homeland Security files a proper charging document.

We recently rejected Martinez-Lopez’s argument. See Pierre-Paul v. 

Barr, 930 F.3d 684, 689–90 (5th Cir. 2019). Pierre-Paul held that a notice to 

appear lacking a date and time is not defective for the purposes of establishing 

jurisdiction and that, even if it was, an immigration court could cure that defect 

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by sending a subsequent hearing notice with the date and time. Id. at 689–91. 

Pereira, we explained, hinges on the stop-time rule’s statutory reference to 8 

U.S.C. § 1229(a), which requires a notice to appear to include the time and 

place of the hearing. Id. at 689; see also 8 U.S.C. § 1229b(d)(1)(A). But 8 C.F.R. 

§ 1003.14 does not mention section 1229(a). And for the purposes of a

regulation or statute that is not “textually bonded to 8 U.S.C. § 1229(a),” a 

notice to appear does not need to include a date and time to be valid; it need 

only satisfy applicable regulations. See Pierre-Paul, 930 F.3d at 690. 

The notices Martinez-Lopez and her son received satisfied the relevant 

regulations. See 8 C.F.R. §§ 1003.15, 1003.26; see also Santos-Santos v. Barr, 

917 F.3d 486, 490 (6th Cir. 2019) (listing regulatory requirements for notices 

to appear). Although they did not specify a date and time for the appearance, 

the regulations require that information only “where practicable.” 8 C.F.R. 

§ 1003.18(b). Moreover, any defect was cured by the notices Martinez-Lopez 

and her son received just over a month later.1 As a result, the notices vested 

the IJ with jurisdiction.

IV.

A.

Because the immigration court had jurisdiction, we turn to the merits of 

Martinez-Lopez’s petition. An applicant for asylum must demonstrate that she 

 

1 Martinez-Lopez briefly argues that she and her son may be eligible for voluntary 

removal under 8 U.S.C. § 1229c(b)(1). A requirement for voluntary removal is that “the alien 

has been physically present in the United States for a period of at least one year immediately 

preceding the date the notice to appear was served under section 1229(a) of this title.” 8 

U.S.C. § 1229c(b)(1)(A). Martinez-Lopez contends that, because she and her son never 

received a valid notice to appear, they have satisfied this requirement by living in the United 

States for over a year. She requests remand to the IJ to consider whether she and her son 

fulfill section 1229c(b)(1)’s other requirements. Pierre-Paul forecloses her argument. The 

immigration court cured any defect in the original notices when it sent the notices of hearing 

in December 2015, less than two months after Martinez-Lopez and her son entered the 

United States. See Pierre-Paul, 930 F.3d at 690–91.

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is a “refugee” under the Immigration and Nationality Act. 8 U.S.C. 

§ 1158(b)(1)(B)(i). A refugee is a person outside her country of nationality who 

“is unable or unwilling to return to . . . that country because of persecution or 

a well-founded fear of persecution on account of race, religion, nationality, 

membership in a particular social group, or political opinion.” Id.

§ 1101(a)(42)(A). Persecution is extreme; it is more than discrimination, 

harassment, or threats unaccompanied by physical harm. Eduard v. Ashcroft, 

379 F.3d 182, 187 n.4, 188 (5th Cir. 2004). It also must be motivated, at least 

in part, by one of the five protected grounds enumerated in the statute. Girma 

v. INS, 283 F.3d 664, 667 (5th Cir. 2002) (per curiam).

A petitioner requesting withholding of removal must make a similar 

showing but shoulders a greater burden: she must demonstrate a “clear 

probability” of persecution on account of one of the five protected grounds if she 

returns to her home country. Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 

2018). The “clear probability” standard requires more certainty than “a wellfounded fear”; it means that persecution upon return is “more likely than not.” 

Id.

The IJ denied Martinez-Lopez’s requests for asylum and withholding of 

removal. She first determined that Martinez-Lopez’s “unfortunate” 

experiences did not amount to persecution. She next found that MartinezLopez had not demonstrated that any future persecution against her would be 

motivated by a protected ground.

The evidence does not compel a contrary result. Although MartinezLopez credibly testified about a tragic course of events, there was substantial 

evidence to conclude that the hardships she experienced—namely, threats and 

men following her—did not constitute past persecution. We have held that 

“mere denigration, harassment, and threats” are ordinarily not extreme 

enough to be considered persecution. Eduard, 379 F.3d at 188; see also 

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Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006). Indeed, we have 

affirmed IJ determinations that even more severe mistreatment than what

Martinez-Lopez experienced fell short of persecution. See, e.g., Mikhael v. INS, 

115 F.3d 299, 304 (5th Cir. 1997) (approving IJ finding of no persecution when

an applicant and his family suffered kidnapping, detention, torture, bombing, 

theft, and other violence); see also id. n.4 (collecting cases approving IJ findings 

of no persecution despite even more extreme mistreatment).

Recognizing this precedential hurdle, Martinez-Lopez also points to the 

deaths of her family members and the economic injury she suffered because 

she was forced to leave her employment. But although these kinds of harms 

can constitute persecution, the persecutor must inflict them intending to target 

the asylum applicant. See Kane v. Holder, 581 F.3d 231, 239 (5th Cir. 2009)

(approving Board ruling that the female genital mutilation of an asylum 

applicant’s daughters could not constitute persecution of the applicant unless 

done with the purpose of emotionally harming the applicant himself); Ahmed 

v. Gonzales, 467 F.3d 669, 674 (7th Cir. 2006) (approving finding that an 

asylum applicant’s economic hardships did not constitute persecution, in part,

because no evidence indicated that his difficulties were “the result of deliberate 

punishment”). Martinez-Lopez did not testify that her relatives’ murders were 

aimed at injuring her, nor did she assert that the gang members who 

threatened her at work did so to cause her economic harm. As a result, these 

events do not show past persecution.

The record also does not compel a finding that Martinez-Lopez 

demonstrated a well-founded fear—much less a clear probability—that her 

repatriation would result in persecution based on a protected ground. Because 

she did not establish past persecution, she cannot invoke a presumption of 

future persecution under 8 C.F.R. § 1208.16(b)(1)(i). Instead, she must “have 

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

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Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001) (per curiam). She 

contends that she will be persecuted because of her membership in a particular 

social group2 (her brother’s family) and her political belief in the rule of law (as 

opposed to the rule of gangs).

Assuming the validity of these protected grounds, substantial evidence 

supports the IJ’s finding that Martinez-Lopez failed to show a connection 

between them and any persecution she has faced or will face. Martinez-Lopez

admitted that she did not know why her brother, relatives, or father were 

killed. See Mariscal-Romo v. Sessions, 729 F. App’x 310, 313 (5th Cir. 2018)

(per curiam) (finding that an asylum applicant’s inability to explain the motive 

behind her relatives’ murders supported the Board’s determination that she 

was not persecuted on account of her family membership). She also did not say 

whether the men who followed her and her family were the same people who 

killed her brother, nor did she offer a reason as to why the men followed them. 

No one ever threatened her or her family because they filed police reports, and 

no one spoke directly to her about her brother’s murder.

In addition, Martinez-Lopez did not tie her interactions with gang 

members to her brother or her opinions on the rule of law. She admitted that 

she did not know if the threats she received at the cell phone store were related 

to her brother’s death. To the contrary, she said that the gang members 

threatened her and her fellow employees to steal new SIM cards. Gang 

members have continued to go to the store to get SIM cards since MartinezLopez left for the United States. See Shaikh v. Holder, 588 F.3d 861, 864 (5th 

Cir. 2009) (approving an IJ’s determination that an applicant for withholding 

 

2 For the first time on appeal, Martinez-Lopez argues that the definition of a 

“particular social group” is unconstitutionally vague. Because she did not present this 

argument to the Board, we lack jurisdiction to review it. See Omari v. Holder, 562 F.3d 314, 

318–19 (5th Cir. 2009).

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of removal failed to show persecution on account of his religion because the 

persecutor “demanded money from all business people in his neighborhood”). 

Martinez-Lopez’s testimony thus does not support, let alone require, a finding 

that she and her family were “the special targets of brutality.” Majd v. 

Gonzales, 446 F.3d 590, 596 (5th Cir. 2006).

The evidence does not compel a finding in Martinez-Lopez’s favor on 

either her asylum or withholding of removal requests.

B.

A petitioner seeking protection under the CAT must show that it is more 

likely than not that she will be tortured if she returns to her country of origin. 

Chen v. Gonzales, 470 F.3d 1131, 1141 (5th Cir. 2006). “Torture is defined as

any act by which severe pain or suffering, whether physical or mental, is 

intentionally inflicted on a person . . . by or at the instigation of or with the 

consent or acquiescence of a public official . . . .” 8 C.F.R. § 208.18(a)(1). To 

show acquiescence by a public official, a petitioner must demonstrate that the 

government is willfully blind to the torture. Chen, 470 F.3d at 1141. Said 

differently, an official must be aware of the torture and take no action to 

protect the victim. Id. at 1142. 

As with Martinez-Lopez’s other claims, there is substantial evidence to 

support the IJ’s denial of protection under the CAT. First, Martinez-Lopez has 

not shown that it is more likely than not that she will be tortured if she returns 

to Honduras. She never alleged that she or her son were the victims of torture 

when they lived in Honduras. See 8 C.F.R. § 208.16(c)(3)(i) (listing “[e]vidence 

of past torture inflicted upon the applicant” as a factor in assessing a CAT 

claim). And she admitted that her mother and sisters had relocated to another 

part of Honduras, where they had remained undisturbed for over a year. See 

id. § 208.16(c)(3)(ii) (listing “[e]vidence that the applicant could relocate to a 

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part of the country of removal where he or she is not likely to be tortured” as a 

factor in assessing a CAT claim).

Moreover, Martinez-Lopez has not pointed to evidence establishing that 

Honduran authorities would acquiesce to the torture of her and her son. 

Although the police did not investigate many of the crimes affecting MartinezLopez’s family, they did arrest a gang member in connection with her relatives’ 

murders. And although the record contains reports of some Honduran 

authorities working with gangs, those same reports indicate that the 

Honduran government is working to combat both corruption and gang violence. 

See Chen, 470 F.3d at 1142. In sum, the general allegations Martinez-Lopez 

makes regarding the unwillingness of Honduran police to investigate gang 

violence “may weigh against [the IJ’s] conclusion, [but] they do not compel the 

opposite conclusion.” Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir. 

2015).

V.

For the foregoing reasons, we DENY the petition for review. 

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