Cortez-Ramirez v. Garland ( 2021 )

Case: 19-60553 Document: 00515887942 Page: 1 Date Filed: 06/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 4, 2021
No. 19-60553
Lyle W. Cayce
Clerk
Melvin Alexis Cortez-Ramirez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 773 085
Before Owen, Chief Judge, Jolly, and Dennis, Circuit Judges.
Per Curiam:*
Petitioner Melvin Cortez-Ramirez entered the United States illegally
in 2014. After he was charged with being subject to removal, he filed an
application for asylum, a petition for withholding of removal, and an
application for protection under the United Nations Convention Against
Torture. All of these requests for relief were denied, first by United States
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Customs and Immigration Services, then by an Immigration Judge, and
finally by the Board of Immigration Appeals. Cortez-Ramirez petitions this
court for review. We deny the petition.
I.
Petitioner Melvin Cortez-Ramirez (“Petitioner” or “Cortez-
Ramirez”) is a citizen of El Salvador. On May 25, 2014, Cortez-Ramirez
illegally entered Texas without having been admitted or paroled. Agents of
the Department of Homeland Security subsequently served Cortez-Ramirez
with a notice to appear before an Immigration Judge (“IJ”). He was charged
with being subject to removal, as an alien unlawfully present, under 8 U.S.C.
§ 1182(a)(6)(A)(i).
Petitioner filed an application for asylum, a petition for withholding of
removal, and an application for protection under the United Nations
Convention Against Torture (“CAT”). As the basis of these requests,
Petitioner claims that he was and reasonably fears that he would again be
subjected to persecution in El Salvador because of his religious beliefs, his
political opposition to criminal gangs, and his membership in his family and
in the social group “Salvadoran Evangelical Young Males Who Oppose
Criminal Activity for Moral and Religious Reasons.”
United States Customs and Immigration Services (“USCIS”) denied
all of Petitioner’s requests for relief. A hearing was then held before an
Immigration Judge, who likewise denied Petitioner’s requests for relief and
ordered him removed to El Salvador. Petitioner appealed this decision to the
Board of Immigration Appeals (“BIA” or “Board”). The Board dismissed
Petitioner’s appeal. This petition for review followed.
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II.
We review questions of law de novo. Miresles-Zuniga v. Holder, 743
F.3d 110, 112 (5th Cir. 2014). The BIA’s interpretation of immigration
statutes is entitled to deference according to the rubric set forth in Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Garcia-Carias v. Holder, 697 F.3d 257, 263 (5th Cir. 2012). Factual findings
of the Board are reviewed under the substantial evidence standard. Such
findings are accepted as true if they are based upon record evidence and are
“substantially reasonable.” Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350
(5th Cir. 2002).
III.
Petitioner applied for asylum pursuant to 8 U.S.C. § 1158, which
provides that “[t]he Secretary of Homeland Security or the Attorney General
may grant asylum to an alien . . . if the Secretary of Homeland Security or the
Attorney General determines that such alien is a refugee within the meaning
of section 1101(a)(42)(A) of this title.” That provision defines “refugee” as
follows:
any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection
of, 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 . . . .
8 U.S.C. § 1101(a)(42)(A) (emphasis added).
Cortez-Ramirez argues that El Salvador’s criminal gangs targeted him
because of his religion (evangelical Christianity), an imputed political opinion
(opposition to criminal gangs), and his membership in two particular social
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groups (his nuclear family and “Salvadoran Evangelical Young Males Who
Oppose Criminal Activity for Moral and Religious Reasons”). The IJ noted
that the imputed political opinion proffered by Cortez-Ramirez, i.e., that
“gang members should not have the utmost authority in Salvadoran
society,” was merely the sort of generalized opposition to crime normally
held by law-abiding citizens. The IJ, relying on prior decisions of the BIA,
also found that “Salvadoran Evangelical Young Males Who Oppose Criminal
Activity for Moral and Religious Reasons” was not a cognizable particular
social group (“PSG”) within the meaning of 8 U.S.C. § 1101(a)(42)(A).
The IJ also found that the various harms and misfortunes suffered by
Cortez-Ramirez in El Salvador appeared to be isolated incidents of
criminality perpetrated by different individuals or groups over a number of
years and concluded that they did not rise to the level of “persecution,”
which the BIA has interpreted to mean “harm or suffering [that is] inflicted
upon an individual in order to punish him for possessing a belief or
characteristic a persecutor seeks to overcome. The word does not embrace
harm arising out of civil strife or anarchy.” Matter of Acosta, 19 I. & N. Dec.
211, 223 (BIA 1985).
The biggest problem with Cortez-Ramirez’s argument, however, as
both the IJ and the BIA found, was that he could not establish a sufficient
nexus between the past harms he allegedly suffered or the persecution he
allegedly fears and any protected ground. What constitutes a sufficient nexus
is set forth at 8 U.S.C. § 1158(b)(1)(B)(i): “[T]he applicant must establish
that race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting the
applicant.” (emphasis added). We have adopted the BIA’s interpretation of
this provision that “although a statutorily protected ground need not be the
only reason for harm, it cannot be incidental, tangential, superficial, or
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subordinate to another reason for harm.” Shaikh v. Holder, 588 F.3d 861, 864
(5th Cir. 2009) (cleaned up).
Here are the alleged incidents of persecution to which Petitioner
testified, along with any evidence of nexus to a protected ground:
1. The first alleged incident is the killing of Petitioner’s
cousin Dennis by the Mara 18 gang. Petitioner stated
that the gang killed him because he was a member of
another evangelical church, but, when asked why he
thought that, stated that “[w]ell, they had attempted to
recruit him into the gang, and he was now a member of
the church.” Petitioner does not allege that Dennis was
targeted because he belonged to Petitioner’s family.
2. Petitioner was allegedly beaten at a bus stop. He
testified that three supposed gang members approached
Petitioner and asked if he was in a gang. Petitioner
responded that he was a member of a church. The three
supposed gang members then allegedly proceeded to
beat and rob Petitioner.
3. Petitioner alleges that his cousin Oscar was killed in
retaliation for leaving the Mara 18 gang.
4. Petitioner testified that he and his brother were attacked
and beaten while they were walking home from shop
class. Petitioner speculates that the assailants were
members of a gang that had a rivalry with the Mara 18
and did not want them in their neighborhood.
5. Petitioner testified that he was beaten and threatened by
classmates after transferring to a new school. By
Petitioner’s own account, this aggression was provoked
by his refusal to join the MS-13 gang. He testified that,
when the other students would ask him to join their
gang, he would respond, “I can’t. My religion and my
beliefs don’t allow it.” The gang members would
supposedly respond by physically attacking Petitioner
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and threatening him. This is similar to incident #2 in
that it is difficult to completely disentangle whether the
attacks were provoked by Petitioner’s refusal to join the
gang or by his comments about his religious beliefs.
6. Petitioner testified that, while traveling with his mother
on a bus, two gang members forced them off the bus and
proceeded to beat Petitioner. When his mother
attempted to intervene, the men told her that they did
not want any problems with her. Petitioner testified,
“[t]hey were after me, not my mother.” As the IJ
noted, this actually supports the conclusion that the
attack was not motivated by animus toward Petitioner’s
family.
7. Petitioner testified that a female friend and fellow
Christian testified in church that gang members tore the
earrings out of her ears while she was traveling on a bus.
This exchange then occurred between Petitioner and
the IJ:
IJ: It sounds like she wasn’t particularly targeted.
It sounds like they got on the bus to rob the bus,
and she was one of the victims on the bus.
Cortez-Ramirez: Exactly.
The only testimony supporting any degree of nexus between a harm
alleged to have been perpetrated against Petitioner and a protected ground is
in connection with incidents #2 and #5. Petitioner testified, with respect to
both incidents, that he had made a comment about his religious beliefs before
being attacked by gang members. While it is possible that these allusions to
his religious beliefs were what provoked the gang members in both or one
incident, we find the more likely provocation to have been Petitioner’s lack
of gang affiliation or his refusal to join a gang.
We review the BIA’s determination that Petitioner did not establish
that a protected ground was “at least one central reason” for his alleged past
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persecution or allegedly feared future persecution under the substantial
evidence standard. Here the BIA’s determination was reasonable and based
upon the evidence in the record. Only Petitioner’s testimony, in connection
with alleged incidents #2 and #5, regarding the statements he made to gang
members about his religious beliefs could possibly support the conclusion
that he was targeted because of his religion, and there are more plausible
interpretations of those alleged incidents. There is nothing in the record to
support a nexus between any of the alleged instances of violence and any
other protected ground. Because one could reasonably conclude that these
alleged instances of violence were unrelated, or only tangentially related, to
Petitioner’s religion or any other protected ground, the BIA’s finding that
Cortez-Ramirez failed to establish sufficient nexus is supported by
substantial evidence. 1 The BIA thus did not err in finding that Cortez-
Ramirez failed to establish eligibility for asylum under 8 U.S.C. § 1158.
IV.
The standard for establishing entitlement to mandatory withholding
of removal under 8 U.S.C. § 1231(b)(3)(A) is higher than the standard for
establishing eligibility for discretionary asylum relief. The “well-founded
fear” standard, from the asylum context, can be satisfied by a finding that
there exists a ten-percent likelihood of future persecution. INS v. Cardoza-
Fonseca, 480 U.S. 421, 440 (1987). By contrast, to establish entitlement to
mandatory withholding of removal, an applicant must prove that there is a
greater than fifty-percent chance that his life or freedom would be threatened
on account of a protected ground if he were removed. 8 U.S.C.
1
The BIA did not find it necessary to address whether Petitioner’s proposed PSGs
were cognizable because it affirmed the IJ purely on the basis of insufficient nexus. We
affirm on the same basis and likewise decline to address whether the proposed PSGs are
cognizable.
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§ 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 429–30 (1984). Petitioner
accepts this fact but contends that, while he must establish a higher likelihood
of persecution in the withholding context, the standard for establishing
sufficient nexus is lower.
In support of this argument, Petitioner cites the out-of-circuit case of
Barajas-Romero v. Lynch, 846 F.3d 351, 359 (9th Cir. 2017) (holding that, in
the withholding context, a protected ground need only be “a reason” why an
applicant’s life or liberty would be threatened rather than “one central
reason,” as in the asylum context). Petitioner also filed a Rule 28(j) letter
bringing to the court’s attention the recently decided case of Guzman-
Vazquez v. Barr, 959 F.3d 253, 271–72 (6th Cir. 2020), in which the Sixth
Circuit concurred with the Ninth Circuit’s reasoning and interpretation in
Barajas-Romero. This circuit, however, has already adopted the contrary
“one central reason” interpretation. Shaikh, 588 F.3d at 864. Therefore,
under binding Fifth Circuit precedent, the same standard for establishing
sufficient nexus applies to applications for asylum and applications for
mandatory withholding of removal. The BIA thus did not abuse its discretion
when it found that Petitioner necessarily could not establish entitlement to
mandatory withholding of removal given that he could not meet the lower
standard applicable to claims of eligibility for asylum.
V.
To establish entitlement to protection under the CAT, an applicant
must prove “that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
“Torture,” within the meaning of the CAT, includes only severe pain or
suffering that 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.” 8 C.F.R. § 208.18(a)(1).
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The BIA found that Petitioner had suffered no past harm rising to the
level of torture and that he had failed to establish that he would more likely
than not be tortured if removed to El Salvador. The BIA commented that
“[Petitioner] merely assumes that all Salvadoran authorities are corrupt and
would not protect him if gang members tried to torture him.” Petitioner
testified that alleged incidents #1–3 were reported to the police and that they
took no action. This is the only evidence to support Petitioner’s contention
that, if he is tortured by gangs upon removal to El Salvador, a mere possibility
the likelihood of which is unknown, Salvadoran authorities will acquiesce or
remain willfully blind. This modicum of evidence is insufficient to meet
Petitioner’s burden. See Matter of J-F-F-, 23 I. & N. Dec. 912, 917 (A.G.
2006) (“If the evidence is inconclusive, the applicant has failed to carry his
burden.”). The determination of the BIA that Petitioner failed to establish
entitlement to relief under the CAT was reasonable and based upon the
evidence in the record.
VI.
Cortez-Ramirez professes to be a devout Christian. We have no
reason to doubt him. He testified that he and his family suffered a great deal
at the hands of criminal gangs in his native El Salvador. We have no reason
to doubt this either. These two things, however, appear unrelated. We see
little evidence that the gangs that allegedly harassed Cortez-Ramirez were
motivated to do so by his religion or any other protected ground. Certainly,
we do not find evidence sufficient to overturn the decision of the Board.
The petition for review is DENIED.
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