Jose Cruz v. William Barr, U. S. Atty Gen , 929 F.3d 304 ( 2019 )

Case: 17-60510 Document: 00515026843 Page: 1 Date Filed: 07/09/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60510 July 9, 2019
Lyle W. Cayce
JOSE NELSON CRUZ; NELSON STEVEN CRUZ-VILLEGA, Clerk
Petitioners,
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent.
Petitions for Review of an Order
of the Board of Immigration Appeals
Before KING, SMITH, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
Jose Cruz, a former Salvadoran police officer, fled his home country and
illegally entered the United States with his son after receiving threats from
the Revolutionaries—a faction of the Barrio 18 gang. Conceding his
removability, Cruz requested asylum, withholding of deportation, and
protection under the United Nations Convention Against Torture.
The Immigration Judge denied all relief, as did the Board of Immigration
Appeals, which accepted the Immigration Judge’s key findings that (1) Cruz
did not suffer past persecution in El Salvador, (2) Cruz failed to satisfy his
burden of establishing a well-founded fear of future persecution, and (3)
because Cruz failed to make a prima facie showing on his asylum claim, he
necessarily failed to make the more stringent showing for withholding of
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No. 17-60510
removal. The Board denied relief across the board, and Cruz brought this
petition for review.
Under the highly deferential standards of review that guide our analysis,
we conclude that the Board committed no reversible error. We DENY Cruz’s
petition for review.
I
In El Salvador, Cruz patrolled his hometown of Zacatecoluca. The
Revolutionaries didn’t like that and threatened Cruz. The first threat came
when Cruz was sitting in a car with his son. Gang members approached Cruz
and told him “they knew him, knew where he lived, and wanted him out of the
territory.” One member raised his shirt to show his gang tattoos and a gun in
his waistband. They told Cruz that they weren’t going to kill him then and
there because his son was with him, and there were too many witnesses. Cruz
reported the incident to police officials the next day and then asked for (and
received) a three-year leave of absence.
The next threat, not long after, was a threatening note left on Cruz’s
door: “We don’t want to see you in our neighborhood again, or you are going to
regret it.” Later that day, the gang’s leader called Cruz and told him that he’d
been given the green light to murder Cruz and his son unless Cruz left town.
So Cruz fled the country with his son later that month. His mother continues
to live in their Salvadoran home, though, and has not received any additional
threats or harassment.
Cruz entered the United States illegally and was apprehended.
Admitting he was removable, Cruz applied for asylum, withholding of removal,
and protection under the Convention Against Torture.
The Immigration Judge denied all relief. Although the IJ sympathized
with Cruz and his family, he nonetheless held that Cruz “failed to meet his
burden of proof to establish he was persecuted, or suffered past persecution, or
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has a well-founded fear of future persecution on account of a protected ground
if he is returned to El Salvador.” As the IJ saw it, the threats Cruz received
“did not arise to the level that . . . would constitute persecution.” 1 Finally, the
IJ denied Cruz’s Convention petition because Cruz “provided insufficient
evidence” of torture, past or future, at the hands of Salvadoran officials acting
in their official capacity.
Cruz appealed the IJ’s decision to the Board, which found no error: “The
record [did] not demonstrate that [Cruz was] subjected to extreme conduct
constituting past persecution.” Nor did the Board buy Cruz’s well-founded-
fear-of-future-persecution claim. The Board believed he could’ve reasonably
avoided persecution by relocating to another part of El Salvador 2—something
Cruz admitted that he never attempted to do. And the Board emphasized that
the gang had never threatened any of Cruz’s family members in El Salvador.
Since Cruz failed to make a prima facie asylum showing, he necessarily failed
to make the more rigorous showing necessary to justify withholding of
removal. 3
Concerning Cruz’s petition for protection under the Convention, the
Board found that Cruz did not show that it is more likely than not that a
“person acting in a public capacity” would “inflict,” “acquiesce,” or “give consent
to . . . torture.” 4 As there was no state action, the Board concluded that the IJ
properly denied Cruz’s request for Convention protection.
1 “To the extent that [Cruz] fears gang activity,” the IJ remarked, “that is merely a
fear that [he] may be the victim of crime, not persecuted on account of a protected ground.”
2 See Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (“An applicant does not
have a well-founded fear of persecution if the applicant could avoid persecution by relocating
to another part of the applicant’s country of nationality.” (quoting 8 C.F.R. § 208.13(b)(2)(ii))).
3 See Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992).
4 See Tamara-Gomez, 447 F.3d at 351 (“The Convention Against Torture requires a
‘public official’ or ‘person acting in a public capacity’ to ‘inflict,’ ‘acquiesce,’ or ‘give consent’ to
the torture.”).
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Cruz filed a timely motion seeking to reopen proceedings and to
reconsider the Board’s decision. The Board denied the motion. Cruz then
appealed both the Board’s decision affirming the IJ and the denial of his
motions to reconsider and to reopen proceedings. We consolidated the appeals.
Cruz does not appeal the Board’s denial of relief under the Convention Against
Torture, so those arguments are waived. 5
II
Our review is limited and deferential. Motions to reopen removal
proceedings are disfavored, 6 and we review denials of such motions “under a
highly deferential abuse-of-discretion standard.” 7 We review the Board’s
factual findings under the substantial-evidence test, reversing only when the
record is “so compelling that no reasonable fact finder could fail to find the
petitioner statutorily eligible for relief.” 8
On appeal, Cruz asserts that he suffered past persecution and has a well-
founded fear of future persecution. He also argues that the Board abused its
discretion in denying his motion to reconsider. Under the governing standards
of review, we cannot say the Board committed reversible error.
A
Let’s begin with the motion to reconsider. It is Cruz’s burden to identify
an error of law or an argument that slipped through the cracks. Cruz contends
that the Board applied the wrong standard of review to the IJ’s finding (that
Cruz did not suffer past persecution), a legal error if he can prove it.
5 “It is a well worn principle that the failure to raise an issue on appeal constitutes
waiver of that argument.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing
United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).
6 Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th 2006).
7 Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th 2009); see 8 C.F.R. § 1003.2(a) (“The
decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board
subject to the restrictions of this section.”).
8 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam).
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Unfortunately, he fails to cite pertinent authority to support this proposition.
As explained below, the Board did not misstep.
Under 8 U.S.C. § 1229a(c)(6)(C), a motion to reconsider must “specify the
errors of law or fact in the previous order and shall be supported by pertinent
authority.” 9 And federal law provides just one shot: “A party may only file one
motion to reconsider any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider.” 10 Finally, the Board
possesses broad leeway: “The decision to grant or deny a motion to reopen or
reconsider is within the discretion of the Board . . . .” 11 This wide discretion
persists “even if the party moving has made out a prima facie case for relief.” 12
Congress has granted the Board abundant leeway, and we review the
Board’s denial of a motion to reopen “under a highly deferential abuse of
discretion standard.” 13 As noted above, we must affirm the Board’s refusal to
reopen, even if we believe the refusal was error, “so long as it is not capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” 14 As for the Board’s legal conclusions, we review those de novo. 15
Cruz asserts that the Board applied the wrong standard of review to the
IJ’s lack-of-past-persecution finding—reviewing the decision for clear error,
rather than de novo. Cruz says that the Board compounded this error when it
denied his motion to reconsider. He maintains that “[w]hile an IJ’s factual
9 It must also “state the reasons for the motion by specifying the errors of fact or law
in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R.
§ 1003.2(b)(1).
10 8 C.F.R. § 1003.2(b)(2).
11 Id. § 1003.2(a).
12 Id.
13 Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); see, e.g., Lowe v. Sessions, 872
F.3d 713, 715 & n.1 (5th Cir. 2017) (collecting cases).
14 Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quoting Zhao, 404 F.3d at 304).
15 Id.
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determinations can be reviewed only for clear error, an IJ’s decisions based
upon law or judgment may be reviewed de novo.” 16 He frames the persecution
issue as a legal (not factual) issue that deserves fresh-eyed de novo review.
The government replies that Cruz can’t cite any legal authority for this
proposition. And since he provided the Board with no legal basis to grant his
motion to reconsider, the Board didn’t abuse its discretion when it denied the
motion.
We agree with the Government on this point. The Board did not abuse
its discretion in denying Cruz’s motion to reconsider because supporting
authority was wholly absent from Cruz’s motion 17—other than the regulatory
standard of review for questions of law. 18
B
The Board held that the IJ could reasonably have found that Cruz didn’t
suffer past persecution and didn’t have a well-founded fear of future
persecution. Even though Cruz presented plenty of evidence to demonstrate
past and future persecution, we can’t say that the evidence compels a finding
of persecution; accordingly, the Board did not abuse its discretion. 19
The Attorney General has discretion to grant asylum to “refugees” 20—
that is, aliens who are “unable or unwilling to return to their home 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
16 See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).
17 “The motion does not identify any error of law . . . or identify any argument
advanced that was overlooked by the Board.”
18 8 C.F.R. § 1003.1(d)(3)(ii).
19 Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005).
20 8 U.S.C. § 1158(a); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
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opinion.” 21 The burden of proof is on the asylum seeker to demonstrate that he
meets the statutory “refugee” definition. 22 Cruz must thus demonstrate three
things: (1) He was or likely will be persecuted in El Salvador (2) “on account
of” (3) his “race, religion, nationality, membership in a particular social group,
or political opinion.” 23
Although Cruz submitted evidence about the threats he received, why he
believed these threats were credible, and how prevalent gang activity is in El
Salvador, our review is limited, focusing only on whether there is substantial
evidence to support the Board’s finding. 24 In other words, we aren’t weighing
and evaluating record evidence, deciding which pieces persuade us and which
don’t; we are only asking whether the Board could look at the evidence and
plausibly reach the finding it made.
We think substantial evidence supports the Board’s no-past-persecution
finding. Although Cruz testified that the gang’s threats were against his entire
family, he admitted that his family members who still live in El Salvador have
experienced no problems with the Revolutionaries. His mother still lives in the
home where the threatening note was posted, and she has encountered no
difficulties with the gang.
For the same reasons, we cannot say the Board abused its discretion in
finding a lack of well-founded fear of future persecution—the rest of the Cruz
family has been safe. But there’s a small, additional step to our future-
persecution inquiry. When the applicant has not demonstrated past
persecution, he has the burden to demonstrate that relocating within his home
21 8 U.S.C. § 1101(a)(42); see also Dayo v. Holder, 687 F.3d 653, 657 (5th Cir. 2012)
(“To qualify for asylum, an applicant must show he is a refugee by proving he suffered past
persecution or has a well-founded fear of future persecution.”).
22 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a).
23 8 U.S.C. § 1101(a)(42).
24 See Long, 420 F.3d at 519.
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country would be unreasonable. 25 Cruz admitted that he never attempted to
relocate. Combined with his mother’s continued safety, this constitutes
substantial evidence to back-up the Board’s finding that there is no well-
founded fear of future persecution.
In sum, we cannot say that the Board went so far afield “that no
reasonable factfinder could reach a contrary conclusion.” 26 So, because the
Board did not abuse its discretion in finding no persecution, Cruz’s asylum
claim fails. 27
* * *
For these reasons, we DENY Cruz’s petition for review.
25 8 CFR 1208.13(b)(3)(i); Eduard, 379 F.3d at 194 (“Because there was no showing of
past persecution, Petitioners had the burden to establish that their relocation was
unreasonable.”).
26 Zhao, 404 F.3d at 306 (citing Elias-Zacarias, 502 U.S. at 481 n.1).
27 While we conclude that substantial evidence supports the BIA’s no-persecution
determination, we also note, but need not resolve, another issue: whether Cruz’s status as a
former police officer falls within “particular social group.” 8 U.S.C. § 1101(a)(42). The Board,
in its Matter of Fuentes decision, distinguished between current and former police officers,
recognizing that “status as a former member of the national police . . . is in fact an immutable
characteristic” that could count as a particular social group under the statute. 19 I. & N. 658,
661–62 (1988) (emphasis added). It also explained that current police officers could count too,
if the persecution they face doesn’t fall within the type and degree of harm police officers
typically expect to encounter as part of the job. Our circuit has not squarely addressed this
current-versus-former-officer distinction. See Tamara-Gomez, 447 F.3d at 349 (failing to
address the distinction); see also Gharti-Magar v. Holder, 551 F. App’x 197, 198–99 (5th Cir.
2014) (per curiam) (denying asylum to a Nepalese police officer and not discussing the
distinction between current and former officers). The parties in today’s case did not provide
detailed briefing on this issue, nor was it discussed by the BIA. As our decision pivots on
“substantial evidence,” we need not reach the current-versus-former-officer issue.
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