Guillen Cedio v. Garland ( 2021 )

Case: 20-60013 Document: 00516145541 Page: 1 Date Filed: 12/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 27, 2021
No. 20-60013
Lyle W. Cayce
Clerk
Jose Irrael Guillen Cedio,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 743 131
Before King, Costa, and Willett, Circuit Judges.
Per Curiam:*
Jose Irrael Guillen Cedio petitions for review of the Board of
Immigration Appeals’ decision denying him asylum. For the following
reasons, the petition is denied.
*
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opinion should not be published and is not precedent except under the limited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. 20-60013
I.
Guillen Cedio is a gay man from San Pedro Sula, Honduras, who
entered the United States in March 2019. He expressed credible fear of
persecution if he returned to Honduras and was referred to immigration
court. Before the Immigration Judge (“IJ”), Guillen Cedio conceded
removability; he then applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
Guillen Cedio testified that, due to his sexual orientation, he was twice
beaten by the police and received three threats from a local sect of the 18th
Street gang (“Gang 18”). On January 5, 2018, Gang 18 delivered a
handwritten letter to Guillen Cedio’s mother that warned that he would be
tortured if he continued to violate the gang’s rule against being gay. Guillen
Cedio brought this letter to two local police officers in a nearby patrol car.
Those officers read the letter, laughed, and kicked Guillen Cedio for five
minutes. Guillen Cedio reported that his injuries from this incident were
“mild” and that he did not see a doctor. Then, on January 15, 2018, another
patrol car stopped Guillen Cedio and his boyfriend. This time, five local
officers exited the vehicle and kicked the two for around eight minutes, at
which point, Guillen Cedio and his boyfriend were able to escape on foot.
Guillen Cedio told the IJ that his arms and legs were scraped, but that he did
not need to see a doctor. He stayed home for about a month to recuperate
after this incident, and no further incidents occurred from January 15, 2018,
through January 2019.
In February 2019, Guillen Cedio received two more threatening
letters from Gang 18. The first was received on February 1, which “warned
[Guillen Cedio] about what [he] was not to do” and stated that he “knew the
consequences that awaited [him].” Guillen Cedio did not take any action in
response to the letter. On February 9, he received the last letter, which
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warned that Guillen Cedio “had 24 hours to leave [his] house and leave the
country.” After receiving the February 9 letter, Guillen Cedio left Honduras.
Gang 18 came to his family’s home on February 10 and ousted them.
Thereafter, his family moved approximately ten minutes away and has not
since been harmed. Guillen Cedio testified that he never filed a police report
regarding any of these incidents because he felt the local police were working
with the gang. Along with his testimony, Guillen Cedio provided a series of
news articles describing Gang 18’s presence in the city as well as the ongoing
police efforts to stop the gang.
The IJ issued a decision denying Guillen Cedio’s applications. The IJ
found that Guillen Cedio failed to establish past persecution because the
threats and beatings he described did not meet the legal standard for
persecution. The IJ also held that Guillen Cedio could not establish a
reasonable fear of future persecution because he had not provided a
reasonable explanation for why he could not settle in another part of
Honduras. Finally, the IJ found that his withholding of removal and CAT
claims failed.
Guillen Cedio appealed to the Board of Immigration Appeals
(“BIA”), which dismissed the appeal. The BIA found that he did not
establish that his harm, “even in the aggregate,” rose to the level of past
persecution. It explained that the letters did not equate to persecution
because Guillen Cedio never directly spoke to anyone from the gang, and that
while the gang did take his family’s home, the reason for why it took the home
was not clear. With regard to the beatings, the BIA explained that the
incidents did not amount to persecution because he did not suffer more than
minor injuries, he did not suffer any long-term injuries, and he did not need
to see a doctor afterwards. Thus, while Guillen Cedio was a victim of
harassment and violence, he was not a victim of persecution. The BIA further
concluded that Guillen Cedio did not demonstrate a well-founded fear of
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future persecution and that his withholding of removal and CAT claims
failed.
Guillen Cedio does not appeal the BIA’s conclusions regarding his
well-founded fear of future persecution or his withholding of removal and
CAT claims. Instead, he appeals only the BIA’s finding that he failed to
establish past persecution.
II.
“When . . . the BIA affirms the immigration judge and relies on the
reasons set forth in the immigration judge’s decision, this court reviews the
decision of the immigration judge as well as the decision of the BIA.” Ahmed
v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). Questions of law are reviewed
de novo; but factual findings, including a BIA’s decision whether an asylum
seeker experienced past persecution, are reviewed for substantial evidence.
Gjetani v. Barr, 968 F.3d 393, 396 (5th Cir. 2020). 1 Substantial evidence
review requires “only that the Board’s conclusion be based upon the
evidence presented and that it be substantially reasonable.” Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (quoting Wilson v. INS, 43
F.3d 211, 213 (5th Cir. 1995)). Thus, reversal is proper only if the petitioner
shows “that the evidence was so compelling that no reasonable factfinder
could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009)
(citing INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
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Guillen Cedio suggests that, because he was found credible and the government
does not contest his recitation of facts, the finding of past persecution should be reviewed
de novo. But he made this argument before we decided Gjetani, which established that the
correct review is one for substantial evidence. Gjetani, 968 F.3d at 396.
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III.
We first address Guillen Cedio’s arguments that the BIA committed
legal error. Because we conclude it did not, we then turn to whether the BIA’s
decision was supported by substantial evidence.
A.
Guillen Cedio contends that the BIA made three legal errors: (1) the
BIA failed to consider the evidence in the aggregate; (2) the BIA improperly
discounted Guillen Cedio’s testimony regarding the written letters because
he failed to offer corroborative evidence; and (3) the BIA improperly adopted
a bright-line rule of law that requires long-term impairment to state a claim
for asylum.
As a preliminary matter, Guillen Cedio did not raise his discounting-
the-evidence or bright-line-rule arguments before the BIA in a motion to
reconsider. Therefore, he failed to exhaust his administrative remedies and
this court is deprived of jurisdiction to consider these issues. Avelar-Oliva v.
Barr, 954 F.3d 757, 766 (5th Cir. 2020); Omari v. Holder, 562 F.3d 314, 318
(5th Cir. 2009).
Guillen Cedio did argue to the BIA that it must consider the
cumulative effect of multiple incidents of harm rather than analyze each in
isolation. Therefore, we may consider that same argument on appeal. Guillen
Cedio is correct that if the BIA had failed to consider the cumulative effect of
his harms, it would have erred. Cf. Eduard v. Ashcroft, 379 F.3d 182, 188 (5th
Cir. 2004). But here, the BIA did consider the evidence in the aggregate. It
considered the cumulative effect of the letters, and the cumulative effect of
the beatings. It also considered how the letters and beatings interacted with
each other. Therefore, the BIA considered Guillen Cedio’s harms in the
aggregate, and it found them insufficient to constitute persecution. Thus, it
did not commit legal error.
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B.
We now must examine whether the BIA’s finding that the harms did
not constitute persecution was supported by substantial evidence.
To qualify for asylum, an applicant must demonstrate “either past
persecution or a reasonable, well-founded fear of future persecution” on
account of his “race, religion, nationality, membership in a particular social
group, or political opinion.” Milat v. Holder, 755 F.3d 354, 360 (5th Cir.
2014); 8 U.S.C. § 1101(a)(42)(A). Guillen Cedio argues that the two beatings
and three threatening letters each independently constitute past persecution,
and when considered together, must constitute past persecution.
This court has defined persecution as:
The infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion, etc.), in a
manner condemned by civilized governments. The harm or
suffering need not be physical, but may take other forms, such
as the deliberate imposition of severe economic disadvantage
or the deprivation of liberty, food, housing, employment or
other essentials of life.
Eduard, 379 F.3d at 187 (quoting Abdel-Masieh v. INS, 73 F.3d 579, 583-84
(5th Cir. 1996)). It is an “extreme concept that does not include every sort of
treatment our society regards as offensive.” Id. at 187 n.4 (quoting Nagoulko
v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003)). “Neither discrimination nor
harassment ordinarily amounts to persecution[.]” Id. at 188. Rather, it must
be a “sustained, systematic effort to target an individual on the basis of a
protected ground.” Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020).
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Repeated beatings, even severe ones, do not necessarily constitute
persecution. E.g., Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir. 1996)
(finding beatings insufficient to constitute persecution when a person was
twice arrested and beaten for three-hour periods); Singh v. Barr, 818 F.
App’x 331, 334 (5th Cir. 2020) (per curiam) (finding beatings insufficient to
constitute persecution where a person was twice beaten, once to the point of
unconsciousness and requiring medical attention); Singh v. Whitaker, 751 F.
App’x 565, 567 (5th Cir. 2019) (per curiam) (finding beatings insufficient to
constitute persecution where a person was twice beaten, once having a gun
pointed at him); Venturini v. Mukasey, 272 F. App’x 397, 402-03 (5th Cir.
2008) (per curiam) (finding beatings insufficient to constitute persecution
where a person was twice beaten, resulting in a hospitalization). Given this
precedent, Guillen Cedio’s argument that his two beatings alone compelled
a factfinder to find persecution fails.
Turning to the three threatening letters, death threats may amount to
persecution if they reflect “regular and methodical targeting” of the victim.
Gjetani, 968 F.3d at 398. For example, in Tamara-Gomez v. Gonzales, this
court found past persecution where, after the petitioner aided the Colombian
National Police in recovering the bodies of officers killed by the Fuerzas
Armadas Revolucionarias de Colombia (“FARC”), FARC members began a
campaign of torment against the petitioner. 447 F.3d 343, 345-46 (5th Cir.
2006). Initially, FARC members repeatedly made threatening phone calls to
the petitioner’s personal cell phone, but once they found his home address,
they began directing threats there as well. Id. at 346. The petitioner sought
police protection, but the police department informed him that it lacked
resources to assist. Id. The petitioner moved himself and his family to another
house, but the FARC found his new house and continued the threatening
calls—now demanding money and threatening to kidnap his children in
addition to the death threats. Id. After an incident where a bicycle bomb
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exploded in his new neighborhood, resulting in the death of five, the
petitioner sent his family to the United States and moved to a local military
base. Id. While this was occurring, the FARC also murdered other
participants in the original recovery mission. Id. In these circumstances, this
court found there to be persecution. Id. at 348-49.
On the other hand, where the death threats reflect sporadic incidents,
rather than methodical targeting, we have declined to overturn the BIA’s
decision even if those threats were paired with physical attacks. In Gjetani v.
Barr, an Albanian citizen, Gjetani, sought asylum after members of his
country’s Socialist Party threatened to kill him three times and physically
attacked him once. 968 F.3d at 395. The first incident occurred when Gjetani
was carrying a flag for the Albanian Democratic Party, and a “Socialist
contingent confiscated [his] flag[] and threatened to kill Gjetani if he carried
Democratic Party flags again. Gjetani attempted to file a report with the
police, but was rebuffed.” Id. Three days later, Socialist Party members came
to his home canvassing for votes, and when they learned Gjetani supported
the Democratic Party, they attacked both him and his father using a belt and
a “sharp metal object.” Id. Further, they “said they would kill Gjetani if he
did not vote as directed.” Id. Gjetani was hospitalized and received stitches
after the incident. Id. at 395-96. Finally, a week later, Gjetani was
“confronted by Socialist Party members who demanded [he] vote for
Socialists or else face death.” Id. at 396. Six months later, Gjetani sought
asylum, but the IJ and BIA found these incidents did not constitute
persecution, and we denied the petition for review. Id. at 395-96. We
explained that, unlike in Tamara-Gomez, the conduct did not equate to “an
organized, relentless campaign of intimidation, extortion, and murder.” Id.
at 398. This was because the three incidents where Gjetani “was
threatened—one of which resulted in physical injury—did not necessarily
reflect the kind of pattern of sustained pursuit that persecution requires.
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Instead, the IJ concluded that these acts were one-off incidents related to the
one-time event of the Albanian election, and unlikely to recur.” Id. at 398-99;
see also Singh, 818 F. App’x at 334 (finding no persecution where the
petitioner was threatened with death and twice beaten, once to the point of
unconsciousness).
Turning to the instant case, the evidence presented to the IJ and BIA,
while disturbing, does not compel the conclusion that this was a “sustained,
systematic effort” by Gang 18. Gjetani, 968 F.3d at 397. Rather, the facts
permitted the BIA to find that the threats lacked the pervasiveness to be more
than sporadic incidents. Cf. Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir.
2004) (“[P]ersecution ‘requires more than a few isolated incidents of verbal
harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty[.]’ ” (quoting
Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998))). Guillen Cedio
argues that the police beatings added legitimacy to Gang 18’s threats, making
them reach the level of a persecutory scheme, but the record contained
evidence that permitted the BIA to reject that conclusion. The record reflects
that Guillen Cedio never filed a police report regarding the incident because
he believed they were “in cahoots,” but it also reflects that police were
combating Gang 18 in San Pedro Sula. Thus, the BIA was free to conclude
that the police and Gang 18 actions were not an organized effort targeting
Guillen Cedio but rather were individual, sporadic events.
The harassment and abuse that Guillen Cedio has suffered is
distressing and unacceptable, but we are not free to substitute our own
judgment for that of the BIA. Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir.
2005). Because the BIA’s decision need only be “based upon the evidence
presented and . . . be substantially reasonable,” Carbajal-Gonzalez v. INS, 78
F.3d 194, 197 (5th Cir. 1996) (quoting Wilson v. INS, 43 F.3d 211, 213 (5th
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Cir. 1995)), and substantial evidence exists that supports the BIA’s
conclusion, its order must be affirmed.
IV.
For the foregoing reasons, the petition for review is DENIED.
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