Rivera-Sorto v. Garland ( 2021 )

Case: 20-60209 Document: 00516013005 Page: 1 Date Filed: 09/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 14, 2021
No. 20-60209 Lyle W. Cayce
Summary Calendar Clerk
Enma Rivera-Sorto,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 592 248
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Enma Rivera-Sorto, a citizen of El Salvador, petitions for review of the
Board of Immigration Appeals’ (BIA) dismissing her appeal from the
Immigration Judge’s (IJ) denying: asylum; withholding of removal; and relief
under the Convention Against Torture (CAT). She contends the court erred
*
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opinion should not be published and is not precedent except under the limited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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No. 20-60209
in concluding she failed to establish past persecution, or a well-founded fear
of future persecution based on a protected ground.
In considering the BIA’s decision (and the IJ’s decision, to the extent
it influenced the BIA), legal conclusions are reviewed de novo; factual
findings, for substantial evidence. E.g., Orellano-Monson v. Holder, 685 F.3d
511, 517–18 (5th Cir. 2012). Under the substantial-evidence standard,
“petitioner has the burden of showing that the evidence is so compelling that
no reasonable factfinder could reach a contrary conclusion”. Id. at 518(citation omitted).
To qualify for asylum, an applicant must demonstrate, inter alia,
either past persecution, or a “well-founded fear of future persecution”.
8 C.F.R. § 208.13(b) (asylum eligibility). To qualify for withholding of
removal, an applicant “must demonstrate a clear probability of persecution
upon return”. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (citation
omitted). The standard for withholding of removal is more stringent than
for asylum. Orellana-Monson, 685 F.3d at 518. Therefore, an applicant who
fails to meet the asylum standard cannot meet the withholding-of-removal
standard. Id.
Rivera asserts she suffered persecution in the form of domestic
violence from her boyfriend, the father of her child. According to the IJ, her
claims failed because she did not prove a necessary element, her
government’s ability and willingness to protect her. See Tesfamichael v.
Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (explaining “[p]ast persecution
entails harm inflicted on the alien on account of a statutorily enumerated
ground by the government or forces that a government is unable or unwilling
to control”). After testimony by Rivera, the IJ noted Salvadorian courts gave
her favorable rulings and orders and law enforcement protected her daughter
from her boyfriend.
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Rivera provides no contentions regarding the basis for the IJ and BIA’s
denial of her application. Her brief in this court does not dispute the validity
or correctness of the IJ and the BIA’s findings. She has, therefore,
abandoned any claim of error. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th
Cir. 2004) (explaining unbriefed issues are considered waived); Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (explaining petitioner made no
assertion decision was contrary to substantial evidence and, therefore,
abandoned the issue).
Regarding her withholding claim, Rivera contends she established
past persecution and, therefore, is entitled to a presumption of future
persecution. This assertion is incorrect. Because she failed to meet her
burden for asylum, she also failed to meet the higher standard for withholding
of removal. Rivera presented nothing that compels a conclusion different
than the decisions of the IJ and the BIA.
To establish a claim for CAT protection, an applicant must
demonstrate it is more likely than not she will be tortured in her home
country “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. §§ 1208.16(c)(2) (eligibility of withholding of removal
under CAT), 1208.18(a)(1) (defining torture). Acquiescence “requires that
the public official, prior to the activity constituting torture, have awareness
of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity”. 8 C.F.R. § 1208.18(a)(7) (defining
acquiescence of a public official).
Rivera asserts public officials would not protect her from future
torture. As noted supra, however, she successfully obtained help from both
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No. 20-60209
the courts and law enforcement. The IJ relied on this evidence, and Rivera
has made no contention compelling a different conclusion.
DENIED.
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