Ibarra-Avilez v. Garland ( 2022 )

Case: 19-60273 Document: 00516172254 Page: 1 Date Filed: 01/19/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 19, 2022
No. 19-60273 Lyle W. Cayce
Clerk
Juan Carlos Ibarra-Avilez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 178 008
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Per Curiam:*
Juan Carlos Ibarra-Avilez, a native and citizen of Mexico, entered the
United States illegally in 1996. Fifteen years later, a Notice to Appear
charged Ibarra with inadmissibility and commenced removal proceedings.
An immigration judge (IJ) denied Ibarra’s requests for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT).
*
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opinion should not be published and is not precedent except under the limited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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The Board of Immigration Appeals (BIA) dismissed Ibarra’s appeal. Ibarra
now petitions our court for review.
Ibarra contends: the BIA erred in determining the asylum application
was untimely; the BIA failed to view Ibarra’s adolescent mistreatment
through the lens of a child and, for purposes of withholding of removal,
record evidence compels the conclusion that there is a clear probability of
persecution in Mexico; and the BIA misjudged the evidence supporting CAT
protection. For the reasons discussed below, Ibarra’s claims fail, and the
petition is DISMISSED in part and DENIED in part.
I.
Ibarra is a native and citizen of Mexico who was “born with the
masculine gender” but now identifies “more in the feminine gender.”
Ibarra testified that beginning at a young age, students and classmates in
Mexico (including parents of classmates) verbally harassed and physically
assaulted Ibarra for more than a decade because of Ibarra’s feminine
behavior. These assaults resulted in bruises and headaches. No injuries were
ever reported to the police because, according to Ibarra, the town was too
small and lacked a police force.
In 1996, at the age of 18, Ibarra illegally entered the United States near
El Paso, Texas. Shortly thereafter, Ibarra fully identified as a woman and
began hormone therapy. Ibarra underwent breast augmentation surgery in
2016 and, according to the record, plans to pursue additional sexual-
reassignment medical procedures in the future.
In 2011, Ibarra was served with a Notice to Appear and charged with
removability under 8 U.S.C. § 1182(a)(6)(A)(i) of the Immigration and
Nationality Act. Ibarra then submitted an application for asylum,
withholding of removal, and relief under the CAT. The IJ held a hearing in
2016, at which Ibarra testified regarding the breast implants, childhood
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abuse, and fear of “homophobic people” and the risk of violent harm if
returned to Mexico. Ibarra called Dr. Thomas M. Davies as a witness with
purported expertise on transgender asylum claims pertaining to Mexico.
Davies testified that even though Mexico has enacted laws protecting
transgender individuals, there remain significant risks for transgender
persons in Mexico, and the Mexican police force is “one of the main
perpetrators of violence” against the transgender community. Ibarra also
submitted an “expert affidavit” from Dr. Nielan Barnes, which averred that
transgender individuals in Mexico “cannot count on any civil or military
official in local, state, or national governments for protection.”
The IJ denied Ibarra’s requested relief. The IJ concluded: Ibarra’s
asylum application was untimely, and the 2016 breast augmentation surgery
did not constitute a “changed circumstance” excusing the delay; Ibarra did
not substantiate past persecution or a well-founded fear of future persecution
for the purposes of withholding of removal; and CAT relief was unwarranted
because the evidence did not establish it was more likely than not Ibarra
would be tortured if returned to Mexico. The IJ also declined to consider Dr.
Davies an expert witness and assigned his testimony “limited weight”
because of his lack of relevant qualifications or specialized knowledge. 1 The
IJ did not discuss Dr. Barnes’s affidavit, let alone determine whether Barnes
1
Ibarra challenged this determination before the BIA, which agreed with the IJ’s
assessment of Dr. Davies’s testimony and similarly gave limited weight to his statements.
Ibarra does not raise or brief any objection to the BIA’s determination, therefore
abandoning the issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
3
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was an expert. 2 The BIA agreed with the IJ on each issue and dismissed
Ibarra’s appeal. Ibarra timely filed this petition for review.
II.
On review, we consider only the BIA’s opinion, “unless the IJ’s
decision has some impact on the BIA’s decision.” Orellana-Monson v.
Holder, 685 F.3d 511, 517 (5th Cir. 2012) (citation omitted). Where, as here,
the BIA adopts much of the IJ’s reasoning, we also review the relevant
portions of the IJ’s decision. See, e.g., Zhu v. Gonzales, 493 F.3d 588, 593 (5th
Cir. 2007). We review legal determinations de novo and factual findings for
substantial evidence. Orellana-Monson, 685 F.3d at 517–18.
Under the substantial evidence standard, “reversal is improper unless
we decide not only that the evidence supports a contrary conclusion, but also
that the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006) (internal quotation marks and citation omitted); accord Santos-Zacaria
v. Garland, --- F.4th ----, ----, No. 19-60355, 2022 WL 91659, at *1 (5th Cir.
January 10, 2022). That is, the record evidence must be “so compelling that
no reasonable fact finder could fail to find” that the petitioner is eligible for
the requested relief. Eduard v. Ashcroft, 379 F.3d 182, 186 (5th Cir. 2004)
(citation omitted). The petitioner bears the burden of showing the evidence
compels reversal. Chen, 470 F.3d at 1134.
2
On appeal to the BIA, Ibarra objected to the IJ’s exclusion of Dr. Barnes’s
testimony, but the BIA likewise did not mention the affidavit. Ibarra did not brief the issue
on appeal, such that the issue is abandoned. We only note that other courts have recognized
Dr. Barnes as an expert. See, e.g., Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081–82
(9th Cir. 2015).
4
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III.
The BIA affirmed the IJ’s determination that Ibarra’s asylum
application was untimely and did not warrant an exception for changed
circumstances. It then denied Ibarra’s request for withholding of removal
and found that, even if Ibarra’s asylum application was timely, it would fail
for the same reasons as did Ibarra’s request for withholding of removal.
Lastly, it denied Ibarra’s request for CAT relief. Because the BIA evaluated
Mexico’s country conditions and other evidence offered by Ibarra in the
context of withholding of removal, we first address that claim before
considering Ibarra’s application for asylum. 3 We conclude with Ibarra’s
claim under the CAT.
A.
To qualify for withholding of removal, an alien must demonstrate a
“clear probability” of persecution on the basis of race, religion, nationality,
membership in a particular social group, or political opinion. Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (citing Faddoul v. I.N.S., 37 F.3d
185, 188 (5th Cir. 1994)). Persecution is defined, in relevant part, as the
infliction or suffering of harm “under government sanction” or by “groups
the government is unable or unwilling to control.” See Chen, 470 F.3d at 1135(citation omitted); Adebisi v. I.N.S., 952 F.2d 910, 914 (5th Cir. 1992)
3
Ordinarily, a denial of asylum necessitates a denial of withholding of removal. See,
e.g., Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (“Because the level of proof
required to establish eligibility for withholding of removal is higher than that required for
asylum, failure to establish eligibility for asylum is dispositive of claims for withholding of
removal.”). The reverse is not necessarily the case. Here, the BIA determined Ibarra’s
asylum application was untimely and then focused its substantive analysis on Ibarra’s
withholding of removal claim. But the BIA concluded that both claims suffered the same
dispositive evidentiary deficiencies, irrespective of the lower burden of proof as to asylum
claims. We can thus logically take these claims out of order and begin our discussion with
withholding of removal.
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(internal quotation marks omitted). If an alien establishes past persecution
based on membership in one of the five categories, the burden shifts to the
Government to establish the threat no longer exists or can be mitigated
through relocation within the country. 8 C.F.R. § 1208.16(b)(1). If there is
no showing of past persecution, an alien must demonstrate that he or she will
“more likely than not” suffer persecution upon return. Id. § 1208.16(b)(2).
Here, there is no dispute that Ibarra is a member of a cognizable particular
social group: male to female transgender persons. Our focus is therefore on
Ibarra’s ability to establish past or future persecution.
The BIA found the mistreatment Ibarra previously endured in Mexico
did not rise to the level of harm required for past persecution. On appeal,
Ibarra contends the BIA erred in not applying a “childhood standard” in
assessing Ibarra’s abuse as an adolescent. This argument, though, was never
presented to the BIA. This claim is accordingly unexhausted, and we lack
jurisdiction to hear it. See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir.
2001) (noting that a petitioner fails to exhaust administrative remedies with
respect to an issue “when the issue is not raised in the first instance before
the BIA”). Ibarra does not challenge any other aspect of the BIA’s past-
persecution finding. Thus, lacking a showing of past persecution, Ibarra must
demonstrate that the evidence compels the conclusion that it is more likely
than not Ibarra will suffer future persecution upon return to Mexico. See
§ 1208.16(b)(2).
The BIA affirmed the IJ’s determination that Ibarra will not face
future persecution in Mexico because any harm Ibarra fears will not be
perpetuated by the Mexican government and because Ibarra could reasonably
relocate to Mexico City to avoid danger. In reaching its conclusion, the BIA
surveyed various laws enacted by the Mexican government meant to protect
transgender persons. The BIA evaluated these provisions against evidence
of violence directed at transgender individuals and a broader backlash
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towards pro-LGBTI 4 legislation. Ibarra asserts the BIA misjudged the record
and, considered properly, the evidence overwhelmingly compels the
conclusion there is a clear probability of persecution in Mexico.
The record evidence is multitudinous. On the one hand, the record
contains studies on which Ibarra primarily relies—country reports,
university-sponsored reports, and data detailed in Dr. Barnes’s affidavit.
This evidence indicates that transgender persons face “pervasive
persecution” in Mexico, violence against LGBTI people has recently
increased in Mexico City, discrimination and hate crimes on the basis of
sexual orientation and gender identity “remain all too common,” Mexican
police have “routinely” subjected LGBTI persons to mistreatment while in
custody, homicides of transgender persons “tend to result in impunity,” and
aspects of Mexican police and military subculture are “imbued with
homophobic and anti-gay elements.” 5
On the other, the record indicates that the Mexican government has
evinced a commitment to the protection and legal recognition of transgender
individuals. The government’s actions include enacting laws prohibiting
discrimination against transgender persons, allocating special prison quarters
for transgender prisoners, allowing transgender persons to change their
names and gender markers on their birth certificates in Mexico City, creating
a specialized unit in the Mexican Attorney General’s office tasked with
4
“LGBTI” stands for lesbian, gay, bisexual, transgender, and intersex; it is the
initialism used by the U.S. Department of State’s 2015 Human Rights Report on Mexico
in the context of the record in this case, see infra, so we likewise use it for consistency.
5
We recognize that the initialism “LGBTI” is broader than Ibarra’s particular
social group, male to female transgender persons. As discussed above the line, some of the
evidence offered by Ibarra addresses Mexico’s treatment of the LGBTI population, while
other evidence is tailored to transgender persons. We employ the terminology used in the
referenced evidence, as it appears in the record and as it was offered.
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assisting LGBTI crime victims, and providing victims of sexual
discrimination an avenue to file complaints through the government’s
National Council to Prevent Discrimination. Further, the mayor of Mexico
City has declared the Federal District to be an “LGBTI-friendly” city, 6 and
a government-run community center has been established in Mexico City to
provide medical, legal, and psychological assistance to transgender persons.
Plainly, the record evidence is mixed. Given that fact, Ibarra’s
proffered studies cannot clear the “deferential standard” of substantial
evidence review. See Silwany-Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th
Cir. 1992); see also Revencu v. Sessions, 895 F.3d 396, 401 (5th Cir. 2018)
(“The possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from being supported by
substantial evidence.” (citation omitted)); Kane v. Holder, 581 F.3d 231, 236
(5th Cir. 2009) (“We may not reverse [under substantial evidence review]
merely because we would have decided the case differently.” (citation
omitted)). Considering the record, particularly the myriad legal enactments
protecting transgender persons, we cannot conclude that the evidence
compels a determination that the Mexican government is sanctioning violence
against the transgender community or, relatedly, that groups the government
is unable or unwilling to control are perpetrating such violence. Moreover,
Mexico City clearly affords transgender persons more legal protections and
resources than other parts of the country do, and Ibarra has not shown why
relocation within Mexico would be unreasonable. See Santos-Zacaria,
--- F.4th ----, ----, 2022 WL 91659, at *2–3.
Without the Mexican government’s sanction of violence, Ibarra
cannot show a clear probability of persecution upon returning to Mexico. See
6
Before 2016, the Federal District was the same as Mexico City.
8
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Shehu v. Gonzales, 443 F.3d 435, 438 (5th Cir. 2006) (“Although the violence
against [persons similar to petitioner] is unfortunate, there is no
‘persecution’ absent proof that the violence is condoned or orchestrated by
the current . . . government.”); Adebisi, 952 F.2d at 914 (affirming the denial
of asylum because “[t]he evidence in the record supports the [BIA’s] finding
that the persecution feared by [petitioner] does not arise from activities
instigated or sanctioned by the . . . government, authorities, military, or
supporters of the regime”) (internal quotation marks omitted). Accordingly,
substantial evidence supports the BIA’s conclusion that withholding of
removal was not warranted.
B.
We need not address Ibarra’s objections regarding the asylum
application’s timeliness. See 8 U.S.C. § 1158(a)(2)(B) (requiring that an alien
submit an asylum application within one year of entering the United States).
The BIA explained that, even if the application was timely, it would have
been denied for the same substantive reasons as withholding of removal. We
agree with the BIA’s rationale.
The BIA’s conclusion that Ibarra cannot show that the alleged harms
to transgender persons would be sanctioned by the Mexican government—
i.e., that Ibarra cannot show “persecution”—equally applies to bar the
asylum claim here because both withholding of removal and asylum claims
are grounded on the same definition of “persecution.” See Adebisi, 952 F.2d
at 913–14. Because substantial evidence supports the BIA’s denial of
withholding of removal, it also supports the BIA’s alternative basis for
denying asylum on the same reasoning.
C.
To be eligible for deferral of removal under the CAT, an alien must
show it is more likely than not that the alien will be tortured upon removal.
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E.g., Majd, 446 F.3d at 595. Torture is defined as “any act by which severe
pain or suffering . . . is intentionally inflicted on a person . . . when such pain
or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official.” 8 C.F.R. § 208.18(a)(1). Relief thus
“requires a two part analysis—first, is it more likely than not that the alien
will be tortured upon return . . . ; and second, is there sufficient state action
involved in that torture.” Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014).
In assessing whether an applicant will be tortured, we look for record
evidence of past torture, the possibility of relocation within the country, and
flagrant human rights violations. Martinez Manzanares v. Barr, 925 F.3d 222,
228 (5th Cir. 2019); 8 C.F.R. § 208.16(c)(3). To show acquiescence, an
applicant must demonstrate the government is willfully blind of the torturous
activity. Martinez-Lopez v. Barr, 943 F.3d 766, 772 (5th Cir. 2019).
The BIA agreed with the IJ’s findings that neither the Mexican
government nor private individuals had tortured Ibarra in the past, there was
insufficient evidence the Mexican government would acquiesce to torture in
the future, and Ibarra could reasonably relocate within Mexico. The BIA
thereby affirmed the denial of CAT relief. Ibarra’s objections are similar to
those leveled at the denial of withholding of removal. Namely, Ibarra
contends that the BIA erred in failing to view Ibarra’s childhood
mistreatment through the lens of a child, and that the BIA’s determination
that Ibarra would not be tortured is contrary to evidence of violence against
transgender persons throughout Mexico.
We lack jurisdiction to consider Ibarra’s first objection because it was
not presented to the BIA. See Wang, 260 F.3d at 452–53. Ibarra’s second
contention fails for the same reasons as Ibarra’s requests for withholding of
removal and asylum: the record evidence does not show the Mexican
government’s acquiescence in the torture of transgender persons, and Ibarra
has not demonstrated that relocation would be unreasonable. See Qorane v.
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Barr, 919 F.3d 904, 911 (5th Cir. 2019) (“[T]he incidents specific to
[petitioner] discussed above do not even rise to the level of persecution. It
follows a fortiori they do not constitute torture.”); Dayo v. Holder, 687 F.3d
653, 659 (5th Cir. 2012) (noting that lack of evidence in support of
petitioner’s asylum and withholding of removal claims likewise barred CAT
relief).
More specifically, while there is record evidence of violent crime and
corruption targeting transgender individuals in Mexico, such evidence does
not entail government acquiescence—particularly given the Mexican
government’s various efforts meant to curb such violence. Cf. Tabora
Gutierrez v. Garland, 12 F.4th 496, (5th Cir. 2021) (finding that “evidence
does not compel the conclusion that . . . torture will occur with the consent
or acquiescence of Honduran officials[,]” despite demonstrating that
“thanks in part to MS-13, Honduras has become one of the most violent
countries on the planet that is not at war”) (internal quotations omitted);
Martinez-Lopez, 943 F.3d at 772 (denying CAT protection because “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 Qorane, 919 F.3d at 911
(“[A] government’s inability to protect its citizens does not amount to
acquiescence.”); Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir.
2006) (finding “neither the failure to apprehend the persons threatening the
alien, nor the lack of financial resources to eradicate the threat or risk of
torture constitute sufficient state action for [CAT] purposes”). The BIA’s
denial of CAT protection was supported by substantial evidence.
IV.
We DISMISS Ibarra’s contentions regarding a childhood standard
for assessing past persecution for withholding of removal and torture under
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the CAT because we lack jurisdiction over those claims. We DENY the
petition for review as to all remaining issues.
PETITION DISMISSED in part; DENIED in part.
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Patrick E. Higginbotham, Circuit Judge, concurring:
We will only reverse the BIA’s decision if “the evidence compels it” 1
and given this Court’s affirmance of the BIA’s dismissal in similarly situated
cases, 2 I concur. I write to shine a small light on the present realities, in hopes
it may reach the desk of the beleaguered IJs and their review.
The panel decision relies heavily on the formal steps that Mexico and
Mexico City have taken recently to extend legal protections to transgender
people, 3 passing by the overwhelming evidence that violence against
transgender women in Mexico has increased in recent years.
It accents aspirational changes that have not materialized on the
ground in Mexico—even in Mexico City. The record is replete with evidence
of the persecution of transgender people in Mexico that postdate the
country’s purported legal improvements. “[R]ates of violence and murder
have actually increased in Mexico City” and “Mexico City has the highest
rate of transphobic murders in the country.” 4 “Reports of hate crimes—
particularly transphobic murders—continue to rise, including in Mexico
City.”
Ibarra-Aviles entered into the record numerous reports detailing the
violence that the transgender community continues to face in Mexico. A
1
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
2
E.g., Santos-Zacaria v. Garland, No. 19-60355, 2022 WL 91659, at *2 (5th Cir.
Jan. 10, 2022).
3
Op. at 6–8; see Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1072 (9th Cir. 2017)
(finding that Mexico’s “de jure commitments to LGBTI protection do not align with the
de facto reality of whether the State is able and willing to provide protection”).
4
For example, there were at least 8 murders of transgender women in Mexico City
between 2012–2013, in 2012 a transgender woman was dismembered, in 2013 the
transgender woman who led the Special Unit on LGBT Issues in the Attorney General’s
office was murdered, and during the 2014 Mexico City Pride March a transgender woman
was accosted and dragged down the road.
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report from the Transgender Law Center notes that “[d]espite recent legal
reforms in Mexico, . . . rates of violence against transgender women are
higher than ever” because “LGBT communities [are now] more visible to
the public.” And a Report on Human Rights Conditions of Transgender
Women explains that police in Mexico are often the perpetrators of violence
against transgender women. Additionally, “homicides of transgendered
women tend to result in impunity.” Between 2010 and 2012 there were 126
reported murders of transgender women. 5 And a report by the Center for
International Human Rights found that Mexico has “fallen short of its
obligation to respect and ensure all [International Covenant on Civil and
Political Rights] rights to all individuals, including LGBTI individuals.” To
these eyes, Carolina Ibarra-Aviles will face a dangerous situation upon her
return to Mexico.
Yet, as the opinion details, Mexico has enacted numerous legal
protections for transgender people 6 and with the high bar for reversal,7 I
concur in its judgment.
5
The report notes that this number likely underestimates the true number of
transgender women murdered during this period.
6
See Op. at 7–8.
7
See Santos-Zacaria, No. 19-60355 at 2; Shehu v. Gonzales, 443 F.3d 435, 438 (5th
Cir. 2006); Chen v. Gonzales, 470 F.3d 1131, 1137 (5th Cir. 2006).
14