Ernesto Hernandez-Rivera v. Jefferson Sessi ( 2018 )

Case: 17-60359 Document: 00514465329 Page: 1 Date Filed: 05/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60359 May 9, 2018
Summary Calendar
Lyle W. Cayce
Clerk
ERNESTO HERNANDEZ-RIVERA; JUSTIN ERNESTO HERNANDEZ-
REYES,
Petitioners
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 682 045
BIA No. A208 682 046
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Ernesto Hernandez-Rivera and his minor son, Justin Ernesto
Hernandez-Rivera, appeal the decision of the Board of Immigration Appeals
(BIA) denying their applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT) and ordering that they be
removed to El Salvador. The BIA held that the Immigration Judge (IJ) did not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60359
err in finding that Hernandez-Rivera’s brother was killed because he was an
active police officer working to stop gangs, rather than on account of a
protected ground, and that the threats Hernandez-Rivera received did not rise
to the level of past persecution. The BIA also held the IJ did not err in finding
that it was reasonable for Hernandez-Rivera to relocate within El Salvador
because he has lived for several months in Rosario La Paz without threats or
harm. Finally, the BIA held that the IJ did not err in holding Hernandez-
Rivera was not entitled to relief under the CAT because he did not show that
it was more likely than not that he would by tortured by or with the
acquiescence of a government official.
We review the BIA’s legal conclusions de novo and its factual findings
regarding eligibility for asylum and withholding of removal for substantial
evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012).
Under the substantial evidence standard, “reversal is improper unless the
court decides ‘not only that the evidence supports a contrary conclusion, but
also that the evidence compels it.’” Id. at 518 (quoting Chen v. Gonzales, 470
F.3d 1131, 1134 (5th Cir. 2006)). We review the decision of the IJ only to the
extent that it influenced the BIA’s decision. Le v. Lynch, 819 F.3d 98, 104 (5th
Cir. 2016).
On appeal, Hernandez-Rivera argues that (1) the agency erred in
applying the bar on claims based on risks associated with the normal course of
police work and that his case is distinguishable from Matter of Fuentes,
19 I. & N. Dec. 658 (BIA 1988), because his brother was off duty when he was
killed; (2) the agency erred in finding the threats he received from gang
members, his brother’s murder, and the documentary evidence he presented
did not rise to the level of past persecution; (3) the agency failed to make a
finding regarding past persecution and thereby violated his due process rights;
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(4) the evidence compels the conclusion that he has a well-founded fear of
future persecution because he is a former police officer and because of his
family membership; (5) relocation within El Salvador would be futile because
he will be targeted by gangs no matter where he lives; and (6) the agency did
not provide a reasoned consideration or justification for its decision that he did
not meet his burden for relief under the CAT.
The BIA’s conclusion that Hernandez-Rivera did not show that he
suffered past persecution on account of a protected ground is supported by
substantial evidence. See Orellana-Monson, 685 F.3d at 517. The record
indicates that Hernandez-Rivera’s brother was killed because he was working
as a police officer trying to disrupt gang activity, rather than his status as a
police officer. It also indicates that Hernandez-Rivera was threatened by gang
members in revenge because they had been detained under suspicion of
involvement in his brother’s murder, rather than his status as a former police
officer or his family membership. He did not show that the BIA erred in relying
on Matter of Fuentes and did not cite any decision of this court limiting the case
to police officers killed in the line of duty. See Matter of Fuentes, 19 I. & N.
Dec. at 661-63 (holding that former police officers do not qualify for asylum if
they were targeted by virtue of their actions to disrupt criminal activity).
Further, he did not show that his family would be perceived as a recognizable
group in El Salvador. See Orellana-Monson, 685 F.3d at 522; Ramirez-Mejia
v. Lynch, 794 F.3d 485, 492 (5th Cir. 2015).
Hernandez-Rivera has not shown that the BIA erred in holding that he
did not show a well-founded fear of future persecution based on his status as a
former police officer or his family membership. The record evidence
established that he lived in Rosario La Paz, El Salvador, for several months
without threats or harm. The evidence did not establish that he would be
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recognized or targeted as a former police officer or a member of his family
throughout El Salvador or that gang activity is so prevalent that no area of the
country would be safe. Therefore, he was not eligible for asylum. See Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 446 (5th Cir. 2001). His son’s claim is
derivative of his own and, therefore, his son was also not eligible for asylum.
See id. at 521-22. He has also failed to meet the higher standard of showing
that he and his son are entitled to withholding of removal. See Dayo v. Holder,
687 F.3d 653, 658-59 (5th Cir. 2012).
The BIA and IJ held Hernandez-Rivera was not entitled to relief under
the CAT because he had not shown government officials would acquiesce or
consent to his torture or murder by gang members. See Chen v. Gonzales, 470
F.3d 1131, 1139 (5th Cir. 2006). The BIA’s conclusion is supported by
substantial evidence. See Orellana-Monson, 685 F.3d at 517. The court has
held that state action for purposes of the CAT is not shown that failure to
apprehend the persons threatening the alien or a lack of financial resources to
stop the threat or risk of torture. Tamara-Gomez v. Gonzales, 447 F.3d 343,
348-49 (5th Cir. 2006).
For the first time on appeal, Hernandez-Rivera argues that the agency’s
failure to make a finding concerning past persecution violated his due process
rights. We do not consider issues raised for the first time on appeal because
he did not raise this issue in his appeal to the BIA. See Wang v. Ashcroft, 260
F.3d 448, 452-53 (5th Cir. 2001).
For these reasons, the petition is DENIED. Hernandez-Rivera’s motion
to file an untimely reply brief is GRANTED.
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