Esther Aguilar-Chavez v. William Barr, U. S. Atty ( 2020 )

Case: 18-60786 Document: 00515369887 Page: 1 Date Filed: 04/02/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60786 April 2, 2020
Summary Calendar
Lyle W. Cayce
Clerk
ESTHER AGUILAR-CHAVEZ,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 737 504
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
Esther Aguilar-Chavez, a native and citizen of Honduras, petitions for
review of the dismissal by the Board of Immigration Appeals (BIA) of her
appeal from the order by the immigration judge (IJ) denying her application
for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). She argues that the BIA erred in determining that she
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-60786
did not establish past persecution or a well-founded fear of future persecution
and that the BIA erred in determining that she waived her CAT claim.
We review the BIA’s decision and will consider the underlying decision
of the IJ only if, as here, it influenced the determination of the BIA. Ontunez-
Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). We review the BIA’s
conclusions of law and whether we have subject matter jurisdiction de novo.
Ontunez-Tursios, 303 F.3d at 348; Garcia-Melendez v. Ashcroft, 351 F.3d 657,
660 (5th Cir. 2003). The BIA’s factual findings are reviewed under the
substantial evidence test, under which we may not overturn the BIA’s factual
findings unless the evidence compels a contrary conclusion. Chun v. INS, 40
F.3d 76, 78 (5th Cir. 1994).
The Attorney General has discretion to grant asylum to refugees. Milat
v. Holder, 755 F.3d 354, 360 (5th Cir. 2014). To qualify for asylum as a refugee,
an applicant must demonstrate either past persecution or a reasonable, well-
founded fear of future persecution on account of one of the five grounds
enumerated in 8 U.S.C. § 1101(a)(42)(A), including, as relevant here,
“membership in a particular social group.” Milat, 755 F.3d at 360; see 8 U.S.C.
§ 1158(b)(1)(B)(i). “Persecution is an extreme concept that does not include
every sort of treatment our society regards as offensive.” Arif v. Mukasey, 509
F.3d 677, 680 (5th Cir. 2007) (internal quotation marks, citation, and brackets
omitted). “Withholding of removal is a higher standard than asylum.” Efe v.
Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
Aguilar-Chavez testified during immigration proceedings as follows.
Her half-sister, Fanis Adina Chavez (Fanis), and her aunt, Lucinda Chavez
(Lucinda), were killed by Tulio Sierra (Tulio), who was the boss of the local MS-
13 gang, and two other gang members, Nixon Gomez and Evenson Riviera.
Tulio had wanted Fanis to be romantically involved with him and to sell drugs
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for the gang, and he repeatedly threatened to kill Fanis and her family when
she refused. After the murders, Salvamica, who took over as the gang leader
after Tulio was killed, threatened Aguilar-Chavez personally at a bank in
town, telling her that he could kill her if he wanted to and that her family was
large, but he would find them anywhere. Aguilar-Chavez left for the United
States the following month. After she left, MS-13 gang member Apollo asked
Aguilar-Chavez’s half-sister, Cesia Eloina Aguilar-Chavez (Cesia), to be
romantically involved with him. When she refused, another sister was told
that Cesia and her cousin were being watched. Cesia then left for the United
States. Additionally, after Aguilar-Chavez’s uncle asked Gomez’s father to
request that Gomez leave their family alone, the uncle was murdered.
Aguilar-Chavez argues that the nature and frequency of threats to her
and her family qualified cumulatively as past persecution. She contends
further that the murders of three of her family members, explicit and direct
death threats, and her economic deprivation rise to the level of persecution.
However, her testimony reveals that she was only directly threatened once.
Such isolated threats of future violence do not amount to persecution. See
Morales v. Sessions, 860 F.3d 812, 816 (5th Cir. 2017). Moreover, any past
persecution of her family members may not be imputed to her, and her
testimony supports the BIA’s finding that Tulio’s threats to kill Fanis and her
family, the murders of Fanis and Lucinda, and the threats to Cesia occurred
because Fanis and Cesia refused to romantically affiliate with or sell drugs for
Tulio and Apollo and not on account of their membership in Aguilar-Chavez’s
purported particular social group—Fanis’s immediate family. Additionally,
Aguilar-Chavez has not provided any arguments showing how any economic
deprivation was sufficiently extreme to rise to the level of persecution. See
Morales, 860 F.3d at 816.
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Although Aguilar-Chavez also contends that she has a well-founded fear
of future persecution due to the MS-13’s previous threats and murders of her
family members, her testimony reveals that her immediate family members
who remained in Honduras have not been targeted by the MS-13 since Cesia
left for the United States. Furthermore, she has not provided any arguments
challenging the BIA’s conclusion that she failed to establish who killed her
uncle after she left Honduras or why he was killed. In light of the foregoing,
Aguilar-Chavez has not shown that the record compels a conclusion contrary
to the BIA’s determinations that she did not demonstrate past persecution or
a reasonable, well-founded fear of future persecution. See Chun, 40 F.3d at 78.
As substantial evidence supports the BIA’s determinations that Aguilar-
Chavez did not show past persecution or a well-founded fear of future
persecution on account of a protected factor, she has not shown that she was
entitled to asylum. See Milat, 755 F.3d at 360. As she has not shown that she
was entitled to asylum, she cannot show that she was entitled to withholding
of removal. See Efe, 293 F.3d at 906.
Aguilar-Chavez also argues that the BIA erred in determining that she
waived her CAT claim. She contends that she raised the claim “generally” in
her appeal to the BIA and that the BIA’s failure to consider the issue prejudiced
her because she was eligible for protection under the CAT. However, because
Aguilar-Chavez failed to provide any arguments supporting a CAT claim in her
appeal to the BIA, she has failed to exhaust her administrative remedies, and
we thus lack jurisdiction to consider the claim. See 8 U.S.C. § 1252(d)(1);
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016); Rui Yang
v. Holder, 664 F.3d 580, 588 (5th Cir. 2011); Omari v. Holder, 562 F.3d 314,
318 (5th Cir. 2009).
Accordingly, Aguilar-Chavez’s petition for review is DENIED.
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