Santos-Zacaria v. Garland ( 2022 )


Menu:
  • Case: 19-60355       Document: 00516160370         Page: 1   Date Filed: 01/10/2022
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    January 10, 2022
    No. 19-60355                         Lyle W. Cayce
    Clerk
    Leon Santos-Zacaria, also known as Leon Santos-
    Sacarias,
    Petitioner,
    versus
    Merrick Garland, U.S. Attorney General,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A098 372 949
    Before Owen, Chief Judge, and Clement and Higginson, Circuit
    Judges.
    Priscilla R. Owen, Chief Judge:
    Leon Santos-Zacaria (Santos), a native and citizen of Guatemala,
    petitions for review of the Board of Immigration Appeals’s (BIA’s) decision
    denying her application for withholding of removal and for relief under the
    Convention Against Torture (CAT). We deny in part and dismiss in part
    for lack of jurisdiction.
    Case: 19-60355          Document: 00516160370             Page: 2      Date Filed: 01/10/2022
    No. 19-60355
    I
    Santos, who is a transgender woman and is attracted to men, alleged
    that she was sexually assaulted by a neighbor in Guatemala at the age of 12
    for being gay and asserted that she was likely to face persecution if she
    returned to Guatemala due to her sexual orientation and gender identity. The
    immigration judge (IJ) denied her application for withholding of removal,
    concluding that Santos’s prior assault was insufficient to establish past
    persecution. The IJ also denied Santos’s claim for relief under the CAT.
    Santos appealed to the BIA.
    The BIA dismissed her appeal. First, the BIA concluded that Santos’s
    allegation of sexual assault was sufficient to establish past persecution on
    account of membership in a particular social group. Consequently, Santos
    was entitled to a presumption of future persecution. However, the BIA ruled
    that the government had rebutted the presumption. The BIA also affirmed
    the IJ’s ruling that Santos had not established eligibility for relief under the
    CAT. Finally, the BIA rejected an argument that the IJ ignored or failed to
    consider relevant evidence. Santos filed a timely petition for review.
    II
    Santos contests the BIA’s decision that she is not eligible for
    withholding of removal. Whether an applicant is eligible for withholding of
    removal is a factual determination that this court reviews under the
    substantial evidence standard. 1 “The substantial evidence standard requires
    only that the BIA’s decision be supported by record evidence and be
    substantially reasonable.” 2 “[R]eversal is improper unless we decide ‘not
    1
    Zhang v. Gonzales, 
    432 F.3d 339
    , 344 (5th Cir. 2005).
    2
    Omagah v. Ashcroft, 
    288 F.3d 254
    , 258 (5th Cir. 2002).
    2
    Case: 19-60355           Document: 00516160370               Page: 3   Date Filed: 01/10/2022
    No. 19-60355
    only that the evidence supports a contrary conclusion, but [also] that the
    evidence compels it.’” 3
    “To be eligible for withholding of removal, an applicant must
    demonstrate a ‘clear probability’ of persecution upon return.” 4 “A clear
    probability means that it is more likely than not that the applicant’s life or
    freedom would be threatened by persecution on account of either h[er] race,
    religion, nationality, membership in a particular social group, or political
    opinion.” 5 If an applicant proves past persecution, she is entitled to a
    rebuttable presumption of future persecution. 6
    A
    As an initial matter, Santos argues for the first time on appeal that the
    BIA engaged in impermissible factfinding. This court “may review a final
    order of removal only if . . . the alien has exhausted all administrative
    remedies available to the alien as of right.” 7 “[F]ailure to exhaust an issue
    deprives this court of jurisdiction over that issue.” 8 “[A]llegations of
    impermissible factfinding by the BIA must first be brought before the BIA in
    a motion for reconsideration to satisfy exhaustion.” 9 Accordingly, because
    3
    Zhang, 432 F.3d at 344 (alteration in original) (quoting Zhao v. Gonzales, 
    404 F.3d 295
    , 306 (5th Cir. 2005)).
    4
    Roy v. Ashcroft, 
    389 F.3d 132
    , 138 (5th Cir. 2004) (per curiam) (quoting Faddoul
    v. INS, 
    37 F.3d 185
    , 188 (5th Cir. 1994)).
    5
    
    Id.
    6
    
    8 C.F.R. § 1208.16
    (b)(1)(i).
    7
    
    8 U.S.C. § 1252
    (d)(1).
    8
    Omari v. Holder, 
    562 F.3d 314
    , 319 (5th Cir. 2009).
    9
    
    Id. at 320
    .
    3
    Case: 19-60355          Document: 00516160370              Page: 4      Date Filed: 01/10/2022
    No. 19-60355
    Santos did not present this argument before the BIA in a motion for
    reconsideration, it is unexhausted, and we lack jurisdiction to consider it.
    Judge Higginson’s dissenting opinion contends that this court
    has jurisdiction because of a request for potential additional factfinding in
    Santos’s brief appealing the IJ’s decision. 10 That request occurred before the
    BIA ruled on Santos’s claims. It is unrelated to the factfinding Santos asserts
    the BIA made. The first objection she made to the BIA’s alleged factfinding
    was in her brief to this court. Because this objection was not made to the BIA,
    Santos has not met the exhaustion requirement.
    B
    Next, Santos asserts that the BIA’s determination that the
    government rebutted the presumption of future persecution is not supported
    by substantial evidence. “The government may rebut th[e] presumption [of
    future persecution] by demonstrating that there has been a fundamental
    change in the circumstances of the country of removal, or that the applicant
    could avoid a future threat to h[er] life or freedom by reasonably relocating
    to a different part of the country of removal.” 11 Santos further argues that
    the BIA erred by “lumping together Ms. Santos’ claim as a homosexual
    Guatemalan and Ms. Santos’ claim as a transgender Guatemalan.”
    The BIA accepted Santos’s “proposed particular social groups,
    described as ‘gay’ and ‘transgender,’” but nevertheless found that “the
    presumption of future persecution on account of [Santos’s] homosexuality
    or transgender identity has been rebutted in this case.” In reaching its
    conclusion, the BIA found that Santos acknowledged that she “would be able
    10
    Post at 8 (citing ROA.29).
    11
    Arif v. Mukasey, 
    509 F.3d 677
    , 681 (5th Cir. 2007) (per curiam).
    4
    Case: 19-60355           Document: 00516160370         Page: 5   Date Filed: 01/10/2022
    No. 19-60355
    to safely relocate within Guatemala.”               Santos argues that the BIA
    mischaracterized her statements and that she never stated that she could
    safely relocate.
    During cross-examination at a hearing before the IJ, the government
    questioned Santos about cities in Guatemala that have pride parades and
    where people participate in “gay and lesbian lifestyles.” The government
    then asked, “[b]ut if you know of cities that are open to gay and lesbian and
    transgender lifestyles you would rather move to those cities than the one you
    lived in correct?” Santos replied, “[y]es, probably there is another place
    where I can live down there but I don’t but I try to stay here to get this
    protection because besides that I have a brother living here so I’m trying to
    have him help me.” Because Santos agreed that there was probably a place
    where she could safely relocate within Guatemala, the BIA’s determination
    that the government rebutted the presumption of future persecution is
    supported by substantial evidence for both of Santos’s particular social
    groups.
    Judge Higginson’s dissenting opinion views Santos’s statement
    as “vague and equivocal” because it was made in response to a hypothetical
    question and through an interpreter. 12             We do not agree with the
    characterization of Santos’s statement as vague and equivocal. The BIA
    reasonably interpreted her statement to mean that she did in fact know of a
    city or cities in Guatemala where it was probably safe for gay and transgender
    people to live.           As the Supreme Court has explained, “[t]he BIA's
    determination that [an alien] was not eligible for asylum must be upheld if
    ‘supported by reasonable, substantial, and probative evidence on the record
    12
    Post at 10.
    5
    Case: 19-60355           Document: 00516160370             Page: 6     Date Filed: 01/10/2022
    No. 19-60355
    considered as a whole.’” 13 Such a determination “can be reversed only if the
    evidence presented by [the alien] was such that a reasonable factfinder would
    have to conclude that the requisite fear of persecution existed.” 14
    “[A]n applicant cannot demonstrate that his or her life or freedom
    would be threatened if the asylum officer or immigration judge finds that the
    applicant could avoid a future threat to his or her life or freedom by relocating
    to another part of the proposed country of removal and, under all the
    circumstances, it would be reasonable to expect the applicant to do so.” 15
    Because the BIA’s determination that Santos could reasonably relocate
    within Guatemala is supported by substantial evidence, the BIA did not err
    in concluding that Santos is ineligible for withholding of removal.
    III
    Santos also challenges the BIA’s determination that she is not eligible
    for relief under the CAT. To be eligible for relief under the CAT, an
    applicant bears the burden to “establish that it is more likely than not that he
    or she would be tortured if removed to the proposed country of removal.”16
    “Torture is defined as any act by which severe pain or suffering . . . is
    intentionally inflicted on a person . . . for any reason based on discrimination
    of any kind, when such pain or suffering is inflicted by, or at the instigation
    of, or with the consent or acquiescence of, a public official acting in an official
    capacity or other person acting in an official capacity.” 17 Whether an
    13
    I.N.S. v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992) (citing 8 U.S.C. § 1105a(a)(4))
    (current version at 
    8 U.S.C. § 1252
    ).
    14
    
    Id.
    15
    
    8 C.F.R. § 1208.16
    (b)(2).
    16
    
    Id.
     § 1208.16(c)(2).
    17
    Id. § 1208.18(a)(1).
    6
    Case: 19-60355          Document: 00516160370               Page: 7     Date Filed: 01/10/2022
    No. 19-60355
    applicant is eligible for relief under the CAT is a factual determination that
    we review for substantial evidence. 18
    First, Santos asserts that neither the IJ nor the BIA adequately
    analyzed her CAT claim. We lack jurisdiction to review Santos’s challenge
    to the adequacy of the BIA’s analysis because Santos could have raised this
    argument in a motion for reconsideration before the BIA but failed to do so. 19
    As to the IJ’s analysis, the IJ is merely required to show “that it consider[ed]
    the issues raised, and [to] announce its decision in terms sufficient to enable
    a reviewing court to perceive that it has heard and thought and not merely
    reacted.” 20 The IJ’s decision, which set out the pertinent law and relevant
    facts surrounding Santos’s claim for relief under the CAT, adequately
    conveyed the reasoning behind denying the claim.
    Second, Santos challenges the merits of her CAT claim, arguing that
    she faces a risk of torture from disparate groups in Guatemala, and that the
    probability of torture from these groups should have been aggregated. Even
    giving full weight to Santos’s evidence, the evidence does not compel a
    finding that she will be tortured with the consent or acquiescence of a public
    official in Guatemala. 21
    *        *         *
    For these reasons, Santos’s petition for review is DENIED in part
    and DISMISSED in part for lack of jurisdiction.
    18
    Zhang v. Gonzales, 
    432 F.3d 339
    , 344 (5th Cir. 2005).
    19
    See Omari v. Holder, 
    562 F.3d 314
    , 319-21 (5th Cir. 2009).
    20
    Efe v. Ashcroft, 
    293 F.3d 899
    , 908 (5th Cir. 2002) (quoting Becerra–Jimenez v.
    INS, 
    829 F.2d 996
    , 1000 (10th Cir. 1987)).
    21
    See 
    8 C.F.R. § 1208.18
    (a)(1).
    7
    Case: 19-60355           Document: 00516160370             Page: 8       Date Filed: 01/10/2022
    No. 19-60355
    Stephen A. Higginson, Circuit Judge, dissenting:
    The Board exceeded its scope of review by engaging in impermissible
    factfinding. The Immigration Judge concluded that Santos did not suffer past
    persecution on account of a protected ground, so it did not reach the question
    of whether DHS had rebutted the presumption of future persecution. When
    the Board, in a single-member decision, determined that “the presumption
    of future persecution . . . has been rebutted in this case,” it engaged in
    factfinding not permitted by the regulations. 1 
    8 C.F.R. § 1003.1
    (d)(3)(iv); see
    also Singh v. Barr, 
    920 F.3d 255
    , 259 (5th Cir. 2019) (BIA finding that DHS
    has rebutted the presumption of future persecution is a factual finding
    reviewed for substantial evidence). Santos adequately requested that the
    Board remand her case for additional factfinding, 2 so we have jurisdiction to
    review this claim. See Omari v. Holder, 
    562 F.3d 314
    , 324 (5th Cir. 2009). I
    would remand.
    Even if it were a valid exercise of its authority, the Board’s decision is
    not supported by substantial evidence. The Government may rebut a
    presumption of future persecution by “demonstrating that there has been a
    fundamental change in the circumstances of the country of removal, or that
    the applicant could avoid a future threat to his life or freedom by reasonably
    relocating to a different part of the country of removal.” Arif v. Mukasey, 
    509 F.3d 677
    , 681 (5th Cir. 2007). The Government has not made either showing.
    1
    On appeal, the Government cites Enriquez-Gutierrez v. Holder, 
    612 F.3d 400
    ,
    409–10 (5th Cir. 2010) to suggest that administratively noticeable factfinding by the Board
    is permissible. The decision in Enriquez-Gutierrez, however, is manifestly inapt, as it
    pertains to appropriate administrative notice of a stipulated prior conviction, 
    id. at 411
    , not
    crediting a cross-examination remark over direct testimony the IJ found credible.
    2
    ROA.29.
    8
    Case: 19-60355     Document: 00516160370           Page: 9   Date Filed: 01/10/2022
    No. 19-60355
    Regarding country conditions, the Government’s evidence suggests
    that gay and transgender persons regularly face violence, harassment, and
    discrimination in Guatemala. The United States Department of State 2017
    Human Rights Report on Guatemala, submitted by the Government but not
    discussed by the Board, lists one of “[t]he most significant human rights
    issues” in Guatemala as “police violence against lesbian, gay, bisexual,
    transgender, and intersex individuals.” The report also notes that “[t]here
    was general societal discrimination against LGBTI persons in access to
    education, health care, employment, and housing” and that “[t]he
    government undertook minimal efforts to address this discrimination.” In
    addition, Santos’s two return trips to Guatemala are not probative of changed
    country conditions; she needed to conceal her transgender identity by
    wearing male clothing and cutting her hair, hire private transportation, and
    hide in her parents’ home for the duration of both visits. “The case law is
    clear that an alien cannot be forced to live in hiding in order to avoid
    persecution.” Singh v. Sessions, 
    898 F.3d 518
    , 522 (5th Cir. 2018).
    Regarding the possibility of relocation within Guatemala, the
    Government makes much of Santos’s alleged “acknowledgement” that she
    could safely relocate. This is a gross mischaracterization of the record. On
    direct examination before the Immigration Judge, Santos categorically denied
    that she could live safely anywhere within Guatemala:
    [Santos’s Counsel]: And last question. Is there
    anywhere that you think that you could safely live in
    Guatemala?
    [Santos]: No. That whole country Guatemala it’s going
    to be the same for me because there is no police in—anywhere
    that is going to protect me so I’m not going to get what I’m
    looking for so that’s why I want to stay in this country because
    I know I’m going to have that protection here.
    9
    Case: 19-60355       Document: 00516160370              Page: 10       Date Filed: 01/10/2022
    No. 19-60355
    But the Government fixates instead on a fragment of a hypothetical
    considered by Santos during cross-examination:
    [Government]: And did you ever try to move to a city
    that was more open and free than the one that you grew up in
    as a child?
    [Santos]: But I don’t know where to go down there. I
    don’t know who would—kind—what kind of people I’m going
    to get there to live there.
    [Government]: But if you know of cities that are open to
    gay and lesbian and transgender lifestyles you would rather
    move to those cities than the one you lived in correct?
    [Santos]: Yes, probably there is another place where I
    can live down there but I don’t but I try to stay here to get this
    protection because besides that I have a brother living here so
    I’m trying to have him help me. 3
    Santos’s vague and equivocal statement in response to the Government’s
    hypothetical question 4 does not constitute an admission that she could safely
    relocate within Guatemala, where she was twice raped.
    I respectfully dissent.
    3
    Although it urged this court to rely on this hypothetical, the Government during
    oral argument before our court could not “recall[] that specific snippet of the record” in
    which Santos categorically denied being unable to relocate safely within Guatemala. U.S.
    Court of Appeals for the Fifth Circuit, 19-60355 Santos-Zacaria v. Garland, April 28, 2021,
    YouTube at 20:15 (May 18, 2021), https://youtu.be/zt3ssKgUtpQ?t=1215.
    4
    Throughout the exchange, Santos spoke in Kanjobal, a Mayan language spoken
    in parts of Guatemala, through an interpreter.
    10