Higareda Adam v. Gonzales , 156 F. App'x 635 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-60080
LUIS GERARDO HIGAREDA ADAM,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Appeal from the Board of Immigration Appeals
(A78 355 868)
Before BARKSDALE and CLEMENT, Circuit Judges, and ENGELHARDT,
District Judge.*
PER CURIAM:**
At issue is the denial of Luis Gerardo Higareda Adam’s
application for asylum and withholding of removal and for relief
under the Convention Against Torture (CAT). Also at issue is
whether remand is necessary because of: the Immigration Judge’s
claimed failure to give full and fair consideration to all of the
circumstances giving rise to Higareda’s claim; errors in the
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
**
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
record; or the Board of Immigration Appeal’s (BIA) summary
affirmance of the IJ’s decision. DENIED.
I.
The following factual recitation is from Higareda’s testimony
before the IJ: In 1998, Higareda, a native and citizen of Mexico,
was elected Mayor of the City of Reynosa in the State of
Tamaulipas. He was politically affiliated with a Senator and with
the Governor of Tamaulipas, both of whom were political opponents
of the Governor-Elect, Thomas Yarrington. In early 1999, Higareda
took several actions opposed by Yarrington, including implementing
a program to combat narcotics trafficking. After taking office in
February 1999, Yarrington told Higareda that he was going to
“screw” him in retaliation for Higareda’s opposition.
In March 1999, Yarrington ordered an illegal state audit of a
public agency where Higareda served as General Manager. As a
result of the audit, criminal charges of embezzlement, abuse of
authority, and falsification of documents were brought against
Higareda; illegal arrest attempts followed. Higareda was removed
as Mayor of Reynosa and replaced with a Yarrington crony. Law-
enforcement programs initiated by Higareda, but opposed by
Yarrington, were cancelled.
Higareda was admitted to the United States in April 2000
through a temporary visa, which expired that October. At his
deportation proceedings, Higareda admitted he had remained in the
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United States without authorization. Higareda applied for asylum
and withholding of removal and for relief under CAT.
In his asylum application, Higareda contended: he is innocent
of the charges against him in Mexico; his rights were violated by
the audit and criminal prosecution; the adverse actions he suffered
were politically motivated; his political opponents are still in
power; and he will be at risk of arrest, psychological torture, and
death if he returns to Mexico. Although Higareda conceded that he
has legal remedies in Mexico, he expressed fear for his safety
while in jail there, pursuing those remedies.
In addition to Higareda’s testimony at the hearing before the
IJ, a newspaper and television reporter from Mexico testified that:
as with Yarrington, the Mayor who replaced Higareda was reputed to
be involved in drug trafficking; and Higareda would be killed if
returned to Mexico and imprisoned. Similarly, a human rights
organization representative testified that: Higareda’s rights
would likely not be respected if he returned to Mexico; and he is
at risk of mental and physical torture and of being killed.
Additionally, the National Human Rights Commission summarized in a
letter to the IJ its determination that: Higareda was “wronged”;
and his human rights had been violated by the Tamaulipas Attorney
General, a criminal district court judge, the Reynosa City Council,
and the Tamaulipas State Congress.
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After the hearing, the IJ denied Higareda’s application,
finding that, although Higareda and his witnesses were credible,
Higareda wished to avoid criminal prosecution, not the requisite
political persecution. Higareda appealed the IJ’s decision to the
BIA, which summarily affirmed the IJ’s decision without opinion.
II.
“Although this Court generally reviews decisions of the BIA,
not immigration judges, it may review an immigration judge’s
decision when, as here, the BIA affirms without additional
explanation.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).
When doing so, the IJ’s decision must be upheld “if there is no
error of law and if reasonable, substantial, and probative evidence
on the record, considered as a whole, supports the decision’s
factual findings”. Id. Under this standard, the alien must
demonstrate that the “evidence was so compelling that no reasonable
factfinder could conclude against it”, Chun v. INS, 40 F.3d 76, 78
(5th Cir. 1994); and, in this regard, an IJ’s findings on
credibility are afforded “great deference”, see Efe v. Ashcroft,
293 F.3d 899, 905 (5th Cir. 2002).
A.
1.
Higareda claims that the IJ erred in finding his criminal
prosecution did not equate with political persecution, thus denying
his application for asylum and withholding of departure. For
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political asylum, Higareda must prove that “a reasonable person in
the [same] circumstances would fear persecution”. Rojas v. INS,
937 F.2d 186, 189 (5th Cir. 1991) (noting that “[i]t is sufficient
under this standard to show that persecution is a reasonable
possibility”). Under his claim for withholding of departure,
however, Higareda must prove “a clear probability of persecution”.
Id. Because his asylum request presents a lesser burden, we will
examine it first. Id. (explaining that, under “these standards,
it is easier to qualify for asylum than for a withholding of
deportation”).
The Attorney General has discretion to grant asylum to a
refugee under § 208(a) of the Immigration and Nationality Act
(INA). 8 U.S.C. § 1158(b)(1) (2000). A refugee is an alien “who
is unable or unwilling to return to ... [his] country [of
nationality] because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion”. Id. §
1101(a)(42) (emphasis added). The alien bears the burden of
showing a causal connection between the persecution and one of the
five enumerated grounds. See INS v. Elias-Zacarias, 502 U.S. 478,
482 (1992). The INA does not define persecution, but the term has
been construed to require showing “harm or suffering will be
inflicted upon [the alien] in order to punish [the alien] for
possessing a belief or characteristic a persecutor sought to
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overcome”. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)
(internal citations and quotation marks omitted).
Higareda claimed he came to the United States because he
feared for his life; he also feared he would be incarcerated if he
returned to Mexico and for his safety while in jail. The IJ found,
however, that Higareda was “fleeing because of prosecution and not
persecution”. Reasoning that “[p]rosecution for violation of the
law of general applicability is not persecution unless the
punishment is threatened for an invidious reason”, the IJ found
that, in this instance, “[c]riminal prosecution does not constitute
persecution”. Because Higareda had not availed himself of the
legal means available for defending himself in Mexico, the IJ
concluded that Higareda merely fears “prosecut[ion] for the alleged
crime that he is being accused of ... [which] does not lead to
persecution but prosecution”.
As stated by the IJ, criminal prosecution can equate with
persecution. Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001)
(summarizing the circuit’s precedent that fear of prosecution may
constitute persecution “if the prosecution is motivated by one of
the enumerated factors, such as political opinion, and if the
punishment under the law is sufficiently serious to constitute
persecution”); Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir.
1996) (“While punishment of criminal conduct in itself is not
persecution, where that punishment ... is ‘excessive or
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arbitrary’[] and is motivated by one of the specified grounds, such
punishment would constitute persecution under the Act.”) (internal
citation and quotation marks omitted).
Higareda has not demonstrated a well-founded fear of
persecution, but rather appears to be fleeing from criminal
prosecution. Therefore, Higareda has not shown “the evidence [is]
so compelling that no reasonable factfinder could conclude against
it”. Efe, 293 F.3d at 905.
2.
Because Higareda fails to satisfy his burden of proving a
well-founded fear of persecution in seeking asylum, he fails to
prove the higher “clear probability standard” in seeking
withholding of removal. Castillo-Rodriguez v. INS, 929 F.2d 181,
185 (5th Cir. 1991) (“In affirming the Board’s finding that
[Petitioner] is ineligible for asylum under section 208(a), we
necessarily conclude that he is ineligible for withholding of
deportation as well.”).
3.
To obtain relief under CAT, Higareda must prove “that it is
more likely than not that he ... would be tortured if removed to
[Mexico]”. 8 C.F.R. § 208.16(c)(2) (2005). Although Higareda’s
ineligibility for asylum does not necessarily preclude finding
eligibility for protection under CAT, the evidence offered by
Higareda falls far short of the high bar to obtain such relief,
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especially considering that Higareda’s CAT claim was directly
related to his asylum claim. See Farah v. Ashcroft, 348 F.3d 1153,
1156-57 (9th Cir. 2003); see also Roy v. Ashcroft, 389 F.3d 132,
140 (5th Cir. 2004) (“The CAT standard for relief does not require
persecution, but the higher bar of torture.”) (internal citation
and quotation marks omitted).
To support his CAT claim, Higareda relies again on reports
offered to the IJ, which state that the practice of torture still
exists in Mexico. That such practice may exist in Mexico does not
prove that it is more likely than not that Higareda will be
tortured if returned there. Higareda fails to show that “the
evidence is so compelling that no reasonable fact finder could fail
to find [him] eligible for CAT relief”. Id.
B.
1.
Higareda claims that remand is necessary because the IJ did
not give full and fair consideration to all of the circumstances
giving rise to Higareda’s claims. The IJ’s decision, however,
reflects a thorough determination based on a complete review of the
record evidence. Further, as we have stated concerning the BIA,
the IJ had no duty “to write an exegesis on every contention. What
is required is merely that [he] consider the issues raised, and
announce [his] decision in terms sufficient to enable a reviewing
court to perceive that [he] has heard and thought and not merely
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reacted”. Efe, 293 F.3d at 908 (internal citation and quotation
marks omitted).
2.
Higareda also contends that remand is necessary to correct
errors in the record. Although there do appear to be numerous
errors in the transcript, the parties do not substantially disagree
regarding the underlying facts; and Higareda has not shown that the
inaccuracies of the transcript have prejudiced him. See United
States v. Neal, 27 F.3d 1035, 1044 (5th Cir. 1994), cert. denied,
513 U.S. 1179 (1995).
3.
Finally, Higareda claims the BIA erred in employing summary
affirmance procedures. See 8 C.F.R. § 1003.1(a)(7)(ii) (2004)
(allowing a single member of the BIA to affirm the IJ’s decision,
without opinion, if the member determines that the IJ reached the
correct result; that any errors were harmless or nonmaterial; and
that: “the issue on appeal is squarely controlled by existing Board
or federal court precedent”; or “the factual and legal questions
raised on appeal are so insubstantial that three-Member review is
not warranted”). Because the IJ’s decision is supported by
substantial evidence, remand for additional review by the BIA is
not required. See Garcia-Melendez v. Ashcroft, 351 F.3d 657, 662-
63 (5th Cir. 2003).
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III.
For the foregoing reasons, the petition for review is
DENIED.
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