Baires-Lemos v. Garland ( 2021 )

Case: 19-60767 Document: 00515821800 Page: 1 Date Filed: 04/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2021
No. 19-60767 Lyle W. Cayce
Summary Calendar Clerk
Berta Alicia Baires-Lemos,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 251 103
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Petitioner Berta Alicia Baires-Lemos, a native and citizen of
El Salvador, first entered the United States illegally in 2013 and was removed.
She reentered illegally in 2015 and applied for immigration relief. She has
filed a petition seeking review of the Board of Immigration Appeals’ (BIA)
*
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opinion should not be published and is not precedent except under the limited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. 19-60767
affirming the immigration judge’s (IJ) denial of her application for
withholding of removal and protection under the Convention Against
Torture (CAT).
Baires claims the BIA’s decision upholding the IJ’s denial of relief was
erroneous because the IJ failed to ask her to articulate her proposed social
group. She further asserts the BIA erred in upholding the IJ’s finding that
the threats she experienced in El Salvador did not rise to the level of
persecution. Finally, she claims the BIA erred in upholding the IJ’s
conclusion that she had failed to prove it was more likely than not she would
be tortured if returned to El Salvador.
“When the BIA affirms the IJ’s decision without an opinion, as is the
case here, the IJ’s decision is the final agency decision for purposes of judicial
review on appeal.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
We review the immigration court’s factual findings for substantial evidence;
its legal conclusions, de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.
2007).
According to Baires, she fled El Salvador with her youngest son
because the gangs would not “leave [her] alone and in peace”. She
explained: her adult daughter’s ex-boyfriend was the leader of a gang; and,
after her daughter ended the relationship, he threatened to kill Baires and her
youngest son.
While the ex-boyfriend threatened Baires’ daughter many times via
text messages, Baires only testified to isolated incidents of verbal harassment.
She testified the ex-boyfriend had once confronted her on her way home from
work and warned she should not “cross through” that part of town. Later,
he stopped her in the street and asked her why she was prohibiting her
daughter from seeing him. As the IJ noted, Baires was never physically
harmed by the ex-boyfriend, and neither were any of her children. Indeed,
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No. 19-60767
Baires’ daughter, who was subjected to most of the ex-boyfriend’s threats,
continues to live in El Salvador and has not been harmed.
Baires has proven, at most, she suffered two incidents of harassment
unaccompanied by physical harm or a significant deprivation of liberty. See
Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir. 2004) (defining
persecution as “an extreme concept” requiring “more than a few isolated
incidents of verbal harassment” (internal quotation marks and citation
omitted)). As such, the evidence does not compel reversing the IJ’s
determination that Baires did not establish harm rising to the level of
persecution warranting withholding of removal. See Chen, 470 F.3d at 1134.
According to Baires, it was erroneous for the IJ not to ask her to
identify a particular social group (PSG). She contends: the proposed social
groups of gender and family were raised in her testimony; and the IJ erred in
failing to consider and make factual findings on those groups.
Before the BIA, Baires asserted she was a member of two PSGs:
“people in fear of violence in El Salvador”; and “Salvadorian Women Seen
as Vulnerable and Unprotected by [a] Criminal Gang Organization”. These
proposed social groups differ, however, from the groups raised in Baires’
petition for review. For example, she contends that, through her testimony
before the IJ, she “may have articulated” various family and gender based
social groups, such as “Salvadoran mother of young single female unable to
leave relationship with male partner”.
Because Baires did not raise these proposed social groups in her appeal
to the BIA, or otherwise challenge the IJ’s purported error in failing to ask
her to articulate a PSG, she has failed to exhaust her available remedies, and
we lack jurisdiction to consider such claims. See Omari v. Holder, 562 F.3d
314, 321 (5th Cir. 2009).
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No. 19-60767
Finally, the IJ reasonably denied Baires’ request for protection under
CAT. In seeking to establish one of the conditions that must be satisfied for
such relief, although Baires testified she would be killed by her daughter’s ex-
boyfriend and his gang if she returned to El Salvador, as noted supra, there is
no evidence in the record she was ever physically harmed by the ex-boyfriend
or his gang. Baires identified only a single instance where the ex-boyfriend
possibly threatened her, when she was on her way home from work.
Baires claims mental suffering can constitute the requisite torture
under BIA precedent and the ex-boyfriend’s persistent text messages to her
daughter threatening the family satisfy the definition of torture. As Baires
acknowledges, however, to constitute torture, mental pain and suffering
must be “prolonged mental harm” caused by conduct such as “threatened
infliction of severe physical pain or suffering” or “[t]he threat of imminent
death” or “[t]he threat that another person will imminently be subjected to
death”. 8 C.F.R. § 208.18(a)(4). The ex-boyfriend’s conduct would not
cause the sort of mental pain and suffering protected against by CAT.
Baires’ testimony regarding the murder of her cousin by gang
members likewise does not establish “it is more likely than not” she will be
tortured if returned to El Salvador. Mwembie v. Gonzales, 443 F.3d 405, 415
(5th Cir. 2006). As the IJ noted, while Baires speculated her daughter’s ex-
boyfriend was involved in the murder, she admitted she did not know why
her cousin was killed or who had killed him.
DISMISSED in part; DENIED in part.
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