Sierra-Alvarado v. Garland ( 2021 )

Case: 20-60365 Document: 00516069906 Page: 1 Date Filed: 10/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 26, 2021
No. 20-60365
Lyle W. Cayce
Summary Calendar Clerk
Fernando Rigoberto Sierra-Alvarado; Emerson David
Sierra-Perdomo,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 480 506
BIA No. A206 480 507
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
On behalf of himself and his minor child, Fernando Rigoberto Sierra-
Alvarado, a citizen of Honduras, seeks review of the Board of Immigration
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-60365 Document: 00516069906 Page: 2 Date Filed: 10/26/2021
No. 20-60365
Appeals’ (BIA) denying his applications for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). The BIA
concluded: Sierra failed to prove the requisite elements for asylum and
withholding of removal; and CAT relief was not warranted because Sierra,
fearing retaliatory gang violence after he reported his second son’s murder to
the police, did not prove he would be tortured upon removal. Sierra contends
substantial evidence supports opposite conclusions.
In considering the BIA’s decision (and the Immigration Judge’s (IJ)
decision, to the extent it influenced the BIA), legal conclusions are reviewed
de novo; factual findings, for substantial evidence. Orellana-Monson v. Holder,
685 F.3d 511, 517–18 (5th Cir. 2012); Zhu v. Gonzales, 493 F.3d 588, 593 (5th
Cir. 2007) (reviewing IJ’s decision because “BIA expressly adopted and
affirmed the IJ’s findings and holding”). Under the substantial-evidence
standard, petitioner must demonstrate “the evidence was so compelling that
no reasonable factfinder could conclude against it”. Carbajal-Gonzalez v.
INS, 78 F.3d 194, 197 (5th Cir. 1996). Relief is improper “unless the evidence
compels a contrary conclusion”. Id.To qualify for asylum, applicant must establish, inter alia, either past
persecution, or a well-founded fear of future persecution, based on one of five
enumerated grounds in 8 U.S.C. § 1101(a)(42)(A) (defining refugee). The
“standard for obtaining withholding of removal is even higher than the
standard for asylum”, and “the failure to establish a well-founded fear for
asylum eligibility also forecloses eligibility for withholding of removal”.
Orellana-Monson, 685 F.3d at 518.
One such enumerated ground is membership in a particular and
socially distinct group, “composed of members who share a common
immutable characteristic”. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237
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Case: 20-60365 Document: 00516069906 Page: 3 Date Filed: 10/26/2021
No. 20-60365
(B.I.A. 2014). Sierra fails to demonstrate his proposed group meets this
standard.
To obtain relief under CAT, applicant must show, inter alia, it is more
likely than not that, if removed, he will be tortured with government
acquiescence or involvement. 8 C.F.R. §§ 1208.16(c)(2) (prescribing
eligibility for withholding of removal under CAT), 1208.18(a)(1) (defining
torture as act performed with “consent or acquiescence of” public official).
Sierra, having no contact for several years with the gang he fears, fails to
provide any evidence the Honduran government will participate in, or turn a
blind eye to, any torture. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th
Cir. 2015) (general contentions regarding official unwillingness to investigate
gang violence “may weigh against [the IJ’s] conclusion, [but does not]
compel the opposite conclusion” (emphasis omitted)).
DENIED.
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