Sonia Cruz-Hernandez v. Attorney General United States ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-2906
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SONIA CRUZ-HERNANDEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. BIA-1: A205-722-426)
Immigration Judge: Roxanne C. Hladylowycz
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 21, 2016
Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.
(Filed: August 3, 2016)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
Petitioner Sonia Cruz-Hernandez asks us to review an order of the Board of
Immigration Appeals (BIA) dismissing her appeal from an immigration judge’s
decision denying her application for withholding of removal under the
Immigration and Nationality Act and the Convention Against Torture. We hold
that substantial evidence supported the BIA’s decision and will deny the petition
for review.
I
We write principally for the parties, who are familiar with the factual
context and legal history of the case. Therefore, we set forth only those facts that
are necessary to our analysis.
Cruz-Hernandez is a citizen of Honduras. In May 2014, Cruz-Hernandez
illegally reentered the United States after having been removed from the United
States in 2012. The Department of Homeland Security conducted a review and
ordered that Cruz-Hernandez’s 2012 removal order be reinstated. Cruz-
Hernandez applied for withholding of removal under the Immigration and
Naturalization Act and the Convention Against Torture. She had a withholding
proceeding before an immigration judge, and she testified about her situation in
Honduras as follows:
Cruz-Hernandez had a relationship with Orbin Ramon Rodriguez-Mesa and
together they had a son. Although Cruz-Hernandez and Rodriguez-Mesa never
legally married, she considered herself married to him. Cruz-Hernandez’s
relationship with Rodriguez-Mesa ended and they separated. Cruz-Hernandez
remained close with Rodriguez-Mesa’s family and lived with Rodriguez-Mesa’s
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father and mother, her son’s grandparents. Cruz-Hernandez worked at an Internet
café owned by her son’s grandmother. The grandparents also owned a successful
farm.
In April 2013, the family began receiving threats from individuals in the
community who demanded that Cruz-Hernandez’s son’s grandfather give them
money and his farm. In July 2013, the family Internet café business was
burglarized. A month later, two men came to the Internet café while Cruz-
Hernandez was working. One of the men had a gun in his waistband and told
Cruz-Hernandez that he would kill her and her son if she said anything to the
authorities about the theft or threats. Two other men similarly threatened her in
September 2013. Later in September, Cruz-Hernandez’s son’s grandfather was
shot to death while walking home at night. None of his personal belongings had
been taken. Cruz-Hernandez believed that he was killed in retaliation for refusing
to turn over his land and money.
After the murder, Cruz-Hernandez’s son’s grandmother and others in the
family continued receiving threats. Cruz-Hernandez felt that she was a prisoner
in her own house. She came to the United States with her son in May 2014. Cruz-
Hernandez remained in contact with the family while these immigration
proceedings were ongoing in the United States, and she reported that the threats
against the family have continued. Her son’s grandmother still owns the
farmland, but she had to close the Internet café. Cruz-Hernandez feels it would
be unsafe to return anywhere in Honduras.
The immigration judge found that Cruz-Hernandez’s testimony was
credible. Nevertheless, the immigration judge denied her applications, finding
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that she had not established that she was part of a particular social group, that her
son’s grandfather was murdered due to his membership in that social group, that
she could not safely live in another part of Honduras, that the government of
Honduras was unwilling or unable to help her, and that she would more likely
than not be harmed if she returned to Honduras. Cruz-Hernandez appealed this
decision to the BIA. The BIA dismissed the appeal because the immigration
judge’s finding that Cruz-Hernandez had not established a clear probability of
persecution or torture was not clearly erroneous.
Cruz-Hernandez filed a petition for review of the BIA decision. Cruz-
Hernandez argues that the BIA should not have applied the clearly erroneous
standard to the immigration judge’s decision. Cruz-Hernandez raised numerous
other arguments in her opening brief, but these arguments relate to issues
considered by the immigration judge and not addressed by the BIA. Our review
is limited to the BIA’s decision, and therefore we do not consider these
alternative arguments.1
II
We have jurisdiction over this petition for review under 8 U.S.C.
§ 1252(a)(1). Where the BIA decides a matter on the merits, we review the
decision of the BIA, not that of the immigration judge.2 We consider the BIA’s
legal conclusions de novo.3 We review the BIA’s factual findings under the
1. Kaplun v. Attorney Gen., 602 F.3d 260, 265 (3d Cir. 2010).
2. Id.
3. Mahn v. Attorney Gen., 767 F.3d 170, 173 (3d Cir. 2014). This de novo
review is generally subject to Chevron deference, but where, as here, we are
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substantial evidence standard and will reverse those findings only “if there is
evidence so compelling that no reasonable factfinder could conclude as the BIA
did.”4
An alien is entitled to withholding of removal under the Immigration and
Nationality Act “if the Attorney General decides that the alien’s life or freedom
would be threatened in [the country the alien is removed to] because of the
alien’s race, religion, nationality, membership in a particular social group, or
political opinion.”5 The applicant bears the burden of establishing a clear
probability that the applicant’s life or freedom would be threatened, meaning that
it must be more likely than not that the applicant would be subject to
persecution.6 To constitute persecution, the actor causing the harm must be the
government or forces that the government is unwilling or unable to control.7
The BIA dismissed Cruz-Hernandez’s appeal because it concluded that the
immigration judge did not commit clear error in finding that Cruz-Hernandez had
not established a clear probability of persecution in Honduras. Cruz-Hernandez
asserts that whether she established a clear probability of persecution is a mixed
question of law and fact that the BIA should have reviewed de novo. It is a mixed
question of law and fact, but we nevertheless conclude that the BIA applied, if
inarticulately, the correct standard.
reviewing an unpublished decision of a single member of the BIA, Chevron
deference does not apply. Id.
4. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
5. 8 U.S.C. § 1231(b)(3)(A).
6. Toussaint v. Attorney Gen., 455 F.3d 409, 413 (3d Cir. 2006).
7. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
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An immigration judge’s predictive judgment of the likelihood of harm based
on the facts in the record is a factual finding reviewed for clear error.8 Here, the
immigration judge found that Cruz-Hernandez’s fear of harm upon return to
Honduras was undercut by the fact that her family members, including her son’s
grandmother, have remained unharmed in Honduras. The BIA correctly reviewed
this factual finding for clear error.
Other aspects of the ultimate question of whether Cruz-Hernandez established
a clear probability of persecution are legal issues. For example, “persecution” itself
is a legal term of art, and whether harm rises to the level of persecution is a legal
question that the BIA reviews de novo.9 The BIA did not need to address this legal
question in this case. Having found that Cruz-Hernandez had not shown that she
was likely to be harmed upon returning to Honduras, the BIA did not need to
consider whether any harm would amount to persecution.10
The BIA was correct to cite Kaplun for the proposition that “determinations
as to the likelihood of future events are reviewed for clear error.”11 In this
formulation, however, “future events” refers to specific factual occurrences such
as imprisonment, extortion, or physical harm.12 This is distinct from the ultimate
8. See Kaplun, 602 F.3d at 270 (considering the likelihood of torture).
9. See id. at 271 (“Torture is a term of art, and whether imprisonment, beating,
and extortion are severe enough to rise to the level of torture is a legal
question.”).
10. Cruz-Hernandez argued in her brief that the BIA must first review de novo
whether or not the harm Cruz-Hernandez fears will occur upon return to
Honduras constitutes persecution, but she offered no authority for this
proposition and we do not find it meritorious.
11. (A.R. 4.)
12. See Kaplun, 602 F.3d at 270–71.
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question of whether an applicant established a clear probability of persecution (or
torture), which is a not a pure question of fact. The BIA thus misstated the
standard of review. But because the BIA actually based its decision on a factual
finding—the likelihood Cruz-Hernandez would be harmed if she returned to
Honduras—we conclude that there was no reversible error. The BIA did not
erroneously apply a clear error standard to any legal questions.
Having concluded that the BIA applied the correct standard of review, we
now ask whether substantial evidence supported the BIA’s finding that Cruz-
Hernandez had not established a clear likelihood of harm in Honduras. We
conclude that there is substantial evidence. Although Cruz-Hernandez was
threatened, she was never physically harmed. Her son’s grandmother has also
received threats, but she continues to own the family’s land and she has not been
harmed. These facts are sufficient to persuade a rational factfinder that Cruz-
Hernandez had not established a clear likelihood of harm, and the substantial
evidence standard is accordingly met.13
Cruz-Hernandez also appealed the BIA’s dismissal of her appeal of the
denial of her application for withholding of removal under the Convention
Against Torture. Her brief, however, contains no separate arguments relating to
the Convention Against Torture. To the extent that this argument is not waived,
we conclude that the BIA’s decision is correct for the same reasons as its decision
under the Immigration and Naturalization Act.
13. See In re A-E-M-, 21 I. & N. Dec 1157, 1160 (B.I.A. 1998) (finding that an
applicant’s fear of persecution is undercut when his family remains in the
country of origin unharmed).
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III
For the reasons set forth above, we will deny Cruz-Hernandez’s petition for
review.
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