Avalos v. Garland ( 2023 )

Case: 22-60279 Document: 00516676296 Page: 1 Date Filed: 03/14/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-60279
FILED
March 14, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Santos Adolfo Avalos; Adolfo Avalos-Aviles; Cristian
Adoris Avalos-Aviles; Grilsleda Carolina Aviles-De
Avalos; Lucia Anabel Avalos-Aviles,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. A209 123 826, A209 123 825,
A209 123 827, A209 123 838, A209 123 832
______________________________
Case: 22-60279 Document: 00516676296 Page: 2 Date Filed: 03/14/2023
No. 22-60279
Before Jones, Stewart, and Haynes, Circuit Judges.
Per Curiam: *
Santos Adolfo Avalos, a native and citizen of El Salvador, entered the
United States illegally with his wife and three children in 2016. 1 He petitions
for review of a decision of the Board of Immigration Appeals (BIA)
dismissing his appeal and affirming the immigration judge’s (IJ’s) denial of
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT).
This court reviews the BIA’s decision and considers the IJ’s decision
only to the extent it influenced the BIA. Orellana-Monson v. Holder, 685 F.3d
511, 517 (5th Cir. 2012). The BIA’s factual findings are reviewed for
substantial evidence, and its legal conclusions are reviewed de novo. Id. The
substantial evidence test “requires only that the BIA’s decision be supported
by record evidence and be substantially reasonable.” Omagah v. Ashcroft, 288
F.3d 254, 258 (5th Cir. 2002). This court will not reverse the BIA’s factual
findings unless the evidence compels a contrary conclusion. Orellana-
Monson, 685 F.3d at 518. The determination that an alien is not eligible for
asylum, withholding of removal, or CAT relief is a factual finding that this
court reviews for substantial evidence. Zhang v. Gonzales, 432 F.3d 339, 344
(5th Cir. 2005).
Avalos argues that the BIA erred in finding that the harm he suffered
in El Salvador did not rise to the level of past persecution. 2 He further argues
that the BIA erred in finding that he failed to show the requisite nexus
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Avalos’s wife’s name is misspelled in the case caption. The correct spelling is
Gricelda, as reflected in Avalos’s asylum application and as used throughout the
immigration proceedings.
2
Because Avalos is the lead petitioner and his family member’s claims for
immigration relief are derivative of his claim, this opinion will hereinafter refer only to
Avalos unless otherwise specified.
2
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No. 22-60279
between the harm he suffered and feared and a protected ground.
Additionally, he challenges the denial of protection under the CAT. 3
Avalos testified that during a dispute with one of his employees, the
employee told him that while he might be the boss in the factory, he was
“nothing” on the streets. Although it was not explicit, Avalos testified that
he took the employee’s statement as a death threat. Even if the employee’s
vague threat that Avalos was “nothing” on the streets could be taken as a
death threat, this court has held that “threats that are exaggerated, non-
specific, or lacking in immediacy” will not suffice to show persecution.
Qorane v. Barr, 919 F.3d 904, 910 (5th Cir. 2019) (internal quotation marks
and citation omitted).
Additionally, Avalos testified that as he was leaving work, he was
attacked by three MS-13 gang members who kicked him and pushed him over
a fence. As the IJ observed, however, Avalos “did not suffer any serious or
long-lasting injuries” from the incident, nor did his testimony reveal “a
continuing effort” by the gangs to harm him physically. In other words,
Avalos’s beating by the gang members did not have “the quality of a
sustained, systematic effort” required to show persecution. 4 Gjetani v. Barr,
968 F.3d 393, 397 (5th Cir. 2020). As such, the BIA reasonably found that
_____________________
3
Avalos makes several other arguments in his opening brief, including that: he has
a subjectively and objectively reasonable fear of persecution in El Salvador, his family-based
particular social group is legally cognizable, the Salvadoran government is unable or
unwilling to protect him from the gangs, and he cannot reasonably relocate to avoid the
gangs. While the IJ made findings on some, but not all of these issues, the BIA did not rely
on any of them in affirming the IJ’s decision. As such, we need not consider Avalos’s
arguments on these issues. See Rui Yang v. Holder, 664 F.3d 580, 584 n.3 (5th Cir. 2011).
4
Avalos filed the sole asylum application in this case and listed his son as a
derivative beneficiary. Accordingly, the separate incident where his son was attacked by
gang members after school, along with any other threats his son received, are not part of
Avalos’s claim for asylum. See Morales v. Sessions, 860 F.3d 812, 816 (5th Cir. 2017).
3
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the events that Avalos described in his testimony did not rise to the level of
past persecution. 5 See Omagah, 288 F.3d at 258.
Avalos also argues that the BIA erred in finding that the harm he
suffered and feared in El Salvador did not have the requisite nexus to a
protected ground. Though Avalos contends that his family relationship,
particularly his relationship to his son, was one central reason for the harm
he suffered, the record does not support his contention.
Avalos testified that the employee threatened him during a work-
related dispute, not because of any animus towards his family. With respect
to the attack by the gang, Avalos testified to two possible motives. First, he
testified that he believed that the gang members had attacked him because he
had reported the attack against his son to the prosecutor’s office. He added,
however, that the gang members did not tell him that they were beating him
because of the report; they told him that they did not recognize him as being
from the area.
As the Government argues, the problem with the motivations that
Avalos provided during his testimony, is that they are not relevant to his
proposed social group of “family member of Adolfo Josue Avalos Aviles.”
Accordingly, “substantial evidence does not compel the conclusion that the
nexus requirement is satisfied” in Avalos’s case. Vazquez-Guerra v. Garland,
7 F.4th 265, 271 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022).
Because the BIA’s past persecution and nexus findings are supported
by substantial evidence, we affirm the BIA’s denial of asylum relief.
_____________________
5
Avalos also argues that the IJ should have granted him humanitarian asylum as a
matter of discretion. Because Avalos failed to show that he suffered past persecution, he is
not entitled to humanitarian asylum. See Shehu v. Gonzales, 443 F.3d 435, 440-41 (5th Cir.
2006).
4
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See Zhang, 432 F.3d at 344. And because substantial evidence supports the
denial of Avalos’s asylum claim, it follows that the BIA’s determination that
he was likewise ineligible for withholding of removal be affirmed. See Majd
v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
Avalos argues that he faces an “extreme likelihood” of torture and
death if he is removed to El Salvador, and that the BIA erred in affirming the
IJ’s denial of CAT relief. 6
Avalos testified that he fears the gangs and believes that the police in
El Salvador would not protect him because he had seen the police work with
the gangs. As this court has recognized, “potential instances of violence
committed by non-governmental actors against citizens, together with
speculation that the police might not prevent that violence, are generally
insufficient to prove government acquiescence, especially if there is evidence
that the government prosecutes rogue or corrupt public officials.” Garcia v.
Holder, 756 F.3d 885, 892 (5th Cir. 2014). Avalos’s “speculation that the
police might not prevent that violence” is therefore insufficient to support
his CAT claim. Id.Moreover, Avalos’s “[g]eneralized country evidence tells us little
about the likelihood state actors will torture any particular person,” including
him. Qorane, 919 F.3d at 911. And to the extent that the Salvadoran
government cannot protect Avalos from the gang violence he fears, “a
_____________________
6
Avalos’s wife and children were potentially eligible for asylum as derivative
beneficiaries of their father’s application for asylum had he met his burden, but they were
not eligible for withholding of removal or CAT relief because they did not file separate
asylum applications. See 8 U.S.C. § 1158(b)(3)(A) (providing that child of alien granted
asylum may be granted the same status); see also Matter of A-K-, 24 I. & N. Dec. 275, 279
(BIA 2007) (explaining that while the Immigration and Nationality Act “provides for
derivative asylum in certain circumstances, [it] does not permit derivative withholding of
removal under any circumstances”).
5
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No. 22-60279
government’s inability to protect its citizens does not amount to
acquiescence.” Id.Finally, Avalos complains that the BIA paid only “token lip service”
to his CAT claim by addressing it “in a few short words.” While the BIA’s
analysis was succinct, this court does not require “that the BIA . . . write any
lengthy exegesis.” Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996).
Because the BIA’s decision reflects a “meaningful consideration” of
Avalos’s claim for CAT relief, his argument is without merit. See id.The petition for review is DENIED.
6