Morales-Perez v. Garland ( 2023 )

Case: 22-60529 Document: 00516920657 Page: 1 Date Filed: 10/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 4, 2023
No. 22-60529
____________ Lyle W. Cayce
Clerk
Evelin Johana Morales-Perez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 796 980
______________________________
Before Stewart, Dennis, and Wilson, Circuit Judges.
Per Curiam: *
Petitioner seeks review of an order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision that she
is ineligible for immigration relief. Because we conclude that substantial
evidence supports the BIA’s order denying relief to Petitioner, we DENY in
part and DISMISS in part the petition for review.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60529 Document: 00516920657 Page: 2 Date Filed: 10/04/2023
No. 22-60529
I. FACTUAL & PROCEDURAL BACKGROUND
In 2014, Evelin Johana Morales-Perez, a native and citizen of
Honduras, entered the United States without authorization. She was then
placed in removal proceedings where she admitted the allegations and
conceded removability. See 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in
the United States without being admitted or paroled, or who arrives in the
United States at any time or place other than as designated by the Attorney
General, is inadmissible.”). She applied for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). In her
application for relief, she claimed that she had been persecuted by a gang on
account of her membership in the particular social group (“PSG”) of
“perceived witnesses in Honduras.” 1
Morales-Perez and her 13-year-old daughter Angie Nicole Castellano-
Morales (“Angie”) testified at the merits hearing. Morales-Perez testified
that she first came to the United States in 2008, returned to Honduras in
2010, and once again returned to the United States in 2014. She claimed that
in 2011, when she was living in Honduras, a gang member attempted to rob
her near her house. The robbery was unsuccessful because a passerby
intervened; however, she suffered an injury to her eye as a result of the
incident. She further stated that she called the police, but they did not
respond to her report of the incident.
Morales-Perez further testified that three years later, in 2014, gang
members attempted to recruit Angie, who was only eight years old at the
_____________________
1
Although Morales-Perez characterized her proposed PSGs in several different
ways before the IJ, the only proposed PSG that was considered by the BIA, and is thus
reviewable on appeal, was her PSG of “perceived witnesses in Honduras.” See 8 U.S.C.
§ 1252(d)(1); Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) (declining
to address Petitioner’s arguments that were not first presented to the BIA).
2
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time. The gang allegedly approached Angie outside of her school on two or
three occasions and threatened to kill her family if she refused to join.
Morales-Perez then removed Angie from school in an effort to protect her
from further harassment by the gang.
Later that year, Morales-Perez’s cousin was killed after being shot by
an MS gang member nicknamed Banana. Morales-Perez heard the gunshots,
so she went outside where she saw the shooter. Because she had seen Banana
and knew his identity, he threatened to kill her family if she called the police.
She did not report the incident to the police and left with Angie for the United
States the following day.
According to Morales-Perez, after she left Honduras, her partner and
the father of her children remained there with their two sons. She alleged that
the gang later tried to recruit one of her sons. Thereafter, the father and sons
briefly relocated within Honduras but ultimately fled to the United States in
2019 where they now live with Morales-Perez and Angie.
Moralez-Perez conceded that the gang did not physically harm her
after the 2011 attempted robbery and did not try to rob or attack her any other
time. She also stated that the gang never physically harmed her partner or her
children, and she never heard anything from or related to Banana after her
cousin’s murder. Nevertheless, she claimed that she feared returning to
Honduras because the gang could find her, and the police would not protect
her.
The IJ denied all requested relief and ordered that Morales-Perez be
removed to Honduras. With respect to asylum and withholding of removal,
the IJ concluded that she failed to state a cognizable PSG. It then denied CAT
relief on the basis that she failed to demonstrate a likelihood of torture or that
any potential torture would involve the requisite state action. The BIA
adopted and affirmed the IJ’s decision for the reasons stated therein, with the
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exception of certain alternative findings that the BIA deemed unnecessary to
address. 2 Morales-Perez filed a timely petition for review.
II. STANDARD OF REVIEW
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. at
517–18. 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.
III. DISCUSSION
On appeal, Morales-Perez argues that the IJ erred (1) in holding that
she was not entitled to asylum or withholding of removal because she did not
suffer past harm rising to the level of persecution, or a well-founded fear of
future persecution, based on her membership in a PSG, and (2) in concluding
that she failed to demonstrate entitlement to protection under CAT. 3 We
disagree.
_____________________
2
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is unnecessary
to the results they reach.”).
3
Morales-Perez also argues that the gang imputed an anti-gang political opinion to
her. During the IJ proceedings, however, she did not claim political opinion as a protected
ground and the BIA did not address a claim based on political opinion. Thus, to the extent
she now raises a claim of persecution based on political opinion on appeal, we lack
jurisdiction to consider it because it is unexhausted. See 8 U.S.C. § 1252(d)(1); Hernandez-
De La Cruz, 819 F.3d at 786. For these reasons, her claim on this issue is dismissed.
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A. Asylum & Withholding of Removal
Asylum may be granted to a noncitizen who is unable or unwilling to
return to her home country because of past persecution or a well-founded
fear of persecution on account of “race, religion, nationality, membership in
a particular social group, or political opinion[.]” Orellana-Monson, 685 F.3d
at 518. The applicant must establish that a statutorily protected ground was
or will be at least one of the central reasons behind her persecution. Id. The
ground does not have to be the only reason for harm, but it cannot be
“incidental, tangential, superficial, or subordinate to another reason for
harm.” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009).
For a PSG to be cognizable, it must be (1) comprised of persons who
share a common immutable characteristic, (2) defined with particularity, and
(3) socially visible or distinct within the society at issue. See Gonzales-Veliz v.
Barr, 938 F.3d 219, 229 (5th Cir. 2019); Hernandez-De La Cruz v. Lynch, 819
F.3d 784, 786, 787 n.1 (5th Cir. 2016). The third requirement of social
distinction “is determined by the extent to which members of a society
perceive those with the characteristic in question as members of a social
group.” Hernandez-De La Cruz, 819 F.3d at 786 (internal quotation marks
and citation omitted).
To be entitled to withholding of removal, the applicant must
demonstrate a clear probability of persecution if returned to his home country
on account of the same statutory grounds applicable to asylum claims. Majd
v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). Because withholding of
removal has a higher standard than asylum, “failure to establish eligibility for
asylum is dispositive of claims for withholding of removal.” Id.Morales-Perez contends that she was targeted by the gang due to her
immutable status as an identifiable Honduran witness to a gang killing
because she received the death threat from Banana after witnessing him kill
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her cousin. With respect to social distinction, she asserts that a group
consisting of “Honduran witnesses to MS gang murder” is “a discrete but
visible class of persons . . . who are preyed upon by Honduran criminals due
to their status within that discrete group.” The IJ and BIA disagreed and
determined that Morales-Perez failed to establish that her proposed PSG was
socially distinct within Honduran society. We agree and hold that substantial
evidence supports the BIA’s conclusion that Morales-Perez failed to
establish social distinction. See Orellana-Monson, 685 F.3d at 517–18.
Morales-Perez’s claims that she witnessed a murder may explain why
she was threatened, but they do not show that her proposed PSG was socially
distinct. See Hernandez-De La Cruz, 819 F.3d at 787 (“Given this finding
regarding the broad group of people who may be subjected to similar
treatment from the [criminal syndicate], Petitioner’s proposed particular
social group is not sufficiently particular.”). Moreover, as the BIA observed,
the gang’s acts that she describes “are examples of criminal activity, which,
without more, is insufficient to establish persecution for asylum purposes.”
See Vasquez-De Lopez v. Lynch, 620 F. App’x 293, 295 (5th Cir. 2015)
(unpublished) (explaining that “[c]onduct that is driven by criminal . . .
motives does not constitute persecution”) (citing Thuri v. Ashcroft, 380 F.3d
788, 792–93 (5th Cir. 2004)). Thus, she has failed to show that the record
compels the conclusion that witnesses to a gang’s crimes are perceived in
Honduras substantially differently than the general Honduran population
that resists the gang or otherwise threatens the gang’s interests. See
Hernandez-De La Cruz, 819 F.3d at 787 (“Although a local journalist
reported that Petitioner had been beaten, it does not follow that his proposed
group of former informants has ‘social distinction’ or would be perceived as
a particular group, because . . . the members of Petitioner’s proposed group
are not substantially different from anyone else in the general population who
resists the [criminal syndicate] or otherwise threatens their interests.”); see
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also Erazo-Flores v. Garland, No. 22-60177, 2023 WL 2612624, at *3 (5th Cir.
Mar. 23, 2023) (unpublished) (“Groups based on being a witness lack the
required social distinction to qualify as a PSG, as members of such groups are
not substantially different from anyone else in the general population who
resist criminal organizations.” (internal quotation marks and citation
omitted)); Esquibel-Segovia v. Garland, No. 20-60890, 2022 WL 2752217, at
*2 (5th Cir. July 14, 2022) (unpublished) (“We see nothing in the BIA’s
decision or underlying record suggesting that the proposed PSG of
‘witnesses to [murder]’ possesses the requisite social distinction to support
a viable asylum claim.”); Flores de Mundo v. Barr, 770 F. App’x 240, 241 (5th
Cir. 2019) (unpublished) (“The record does not compel the conclusion that
[Petitioner’s] society views witnesses to [the gang’s] crimes as substantially
different from anyone else in the general population who resists [the gang] or
otherwise threatens their interests, so we uphold the BIA’s rejection of her
claim for withholding of removal.” (internal quotation marks and citation
omitted)). 4 Because Morales-Perez fails on the issue of social distinction, she
cannot show that the BIA erred in concluding that her proposed PSG was
incognizable. See Hernandez-De La Cruz, 819 F.3d at 786–87. Consequently,
she cannot demonstrate eligibility for asylum or withholding of removal, and
we affirm the BIA’s denial of those forms of relief. 5 See Orellana-Monson, 685
F.3d at 518; see also Majd, 446 F.3d at 595 (noting that withholding of removal
_____________________
4
See Hernandez-De La Cruz, 819 F.3d at 787 (recognizing that unpublished cases
are persuasive authority).
5
Although the Government contends that this court lacks jurisdiction to consider
whether Morales-Perez failed to demonstrate past or potential harm rising to the level of
persecution, we need not reach the issue because her failure to show that she presented a
cognizable PSG is dispositive to her claims for asylum and withholding of removal. See
Bagamasbad, 429 U.S. at 25 (explaining that courts and agencies are not required to make
findings on issues that are not dispositive to the holding they reach).
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has a higher standard than asylum thus the “failure to establish eligibility for
asylum is dispositive of claims for withholding of removal”).
B. Convention Against Torture
Morales-Perez further maintains that the IJ failed to properly address
the evidence showing that Honduran police officials were ineffective against
death threats by gang members and would be unable or unwilling to protect
her if she returned to Honduras. Noting that the police did nothing after she
reported the attempted robbery in 2011, she contends that future torture
would more likely than not occur based on the death threat she received after
witnessing the killing of her cousin in 2014. We are unpersuaded by her
arguments.
To obtain protection under the CAT, the applicant must “establish
that it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); accord Munoz-
Granados v. Barr, 958 F.3d 402, 408 (5th Cir. 2020). Torture is defined, in
relevant part, as “any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person . . . by, or at the instigation of,
or with the consent or acquiescence of, a public official acting in an official
capacity or other person acting in an official capacity.” 8 C.F.R. §
1208.18(a)(1); accord Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir.
2015). Thus, the applicant must show both that (1) she more likely than not
would suffer torture if she returned to her country and (2) sufficient state
action would be involved in that torture. See Tamara-Gomez v. Gonzales, 447
F.3d 343, 350–51 (5th Cir. 2006).
Threats that lack immediacy are insufficient to constitute persecution
for asylum and withholding of removal. See Munoz-Granados, 958 F.3d at
407; see also Gjetani v. Barr, 968 F.3d 393, 398–99 (5th Cir. 2020) (upholding
determination that threats on three occasions, one of which resulted in
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physical injury, did not qualify as persecution because no pattern of sustained
pursuit was involved). It so follows that such threats also fail to meet the
higher bar of torture. See Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002)
(“[The] CAT does not require persecution, but the higher bar of torture.”);
see also 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to torture.”).
On this issue, the IJ determined that Morales-Perez failed to prove
that it was more likely than not that she would be tortured, by or with the
consent or acquiescence of a government official, if she returned to
Honduras. See 8 C.F.R. § 1208.16(c)(2). The BIA upheld the IJ’s findings.
We agree that she has failed to make the requisite showing.
Morales-Perez testified that when Banana noticed that she witnessed
the shooting, he told her that he would kill her family if she called the police.
She satisfied Banana’s demand, however, by not reporting the killing to the
police. Even though she fled the country with her daughter the day after the
murder, her partner remained in Honduras with their two sons until 2019 and
no one in the family was ever threatened again by Banana or anyone else with
respect to the murder. Apart from Morales-Perez being hit in the eye during
the unrelated attempted robbery incident in 2011, the record confirms that
no one in Honduras ever physically harmed her or her children. In other
words, the evidence does not “compel” the conclusion that the death threat
from Banana was a continuing one. See Orellana-Monson, 685 F.3d at 518.
Moreover, “[g]eneralized country evidence tells us little about the likelihood
[that] state actors will torture any particular person,” including Morales-
Perez. See Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019); Morales v.
Sessions, 860 F.3d 812, 818 (5th Cir. 2017) (“Petitioner’s presentation of
various news articles and reports describing [her country] as particularly
dangerous for unnamed women and children warrants our sympathy, but the
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allegations contained in those articles and reports are too general to warrant
relief under the Convention Against Torture.” (internal quotation marks and
citations omitted)). For these reasons, we conclude that substantial evidence
supports the BIA’s holding that Morales-Perez has failed to show that, if she
returns to Honduras, it is more likely than not that she will be tortured by or
with the consent or acquiescence of a government official. See 8 C.F.R. §
1208.16(c)(2); Tamara-Gomez, 447 F.3d at 350–51. She is therefore not
entitled to CAT relief. See Munoz-Granados, 958 F.3d at 408.
IV. CONCLUSION
For the foregoing reasons, the petition for review is DENIED in part
and DISMISSED in part.
10