Hernandez-Ramos v. Garland ( 2023 )

Case: 23-60188 Document: 00516971251 Page: 1 Date Filed: 11/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 16, 2023
No. 23-60188
Lyle W. Cayce
Summary Calendar Clerk
____________
Nancy Cristina Hernandez-Ramos,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review from an Order of the
Board of Immigration Appeals
Agency No. A209 436 978
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:*
Nancy Cristina Hernandez-Ramos, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) upholding
the denial of her application for asylum; withholding of removal; and
protection under the Convention Against Torture (CAT). She contends the
BIA erred by: concluding that, for her asylum claim, she failed to establish
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60188
past persecution or a well-founded fear of future persecution; failing to
meaningfully consider relevant substantial evidence; and denying
withholding of removal and protection under CAT.
Our court reviews the BIA’s decision, considering the decision of the
immigration judge only to the extent it influenced the BIA. E.g., Singh v.
Barr, 920 F.3d 255, 258–59 (5th Cir. 2019). The BIA’s factual determination
that an individual is not eligible for asylum, withholding of removal, or CAT
relief is reviewed under the substantial-evidence standard. E.g., Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Under this standard, reversal
is improper unless the evidence compels a contrary conclusion. Id. “The
applicant has the burden of showing that the evidence is so compelling that
no reasonable factfinder could reach a contrary conclusion.” Id. Questions
of law are reviewed de novo. E.g., Cabrera v. Sessions, 890 F.3d 153, 158 (5th
Cir. 2018).
First, Hernandez contends the BIA erred in concluding she did not
endure past persecution or a well-founded fear of future persecution. To be
eligible for asylum, she must show either factor resulted from her
membership in a particular social group: in this instance, lesbians. E.g., id.
at 159.
Over nine months, Hernandez experienced verbal denigration, objects
thrown at her home, and one instance of physical harm that resulted in
bruising. Although she suffered obvious mistreatment, the evidence does not
compel concluding her past harm rose to the level of persecution. See Qorane
v. Barr, 919 F.3d 904, 908–10 (5th Cir. 2019) (upholding BIA’s conclusion of
no past persecution when applicant was verbally abused, slapped, shoved,
and threatened with incarceration and death).
Absent her showing past persecution, Hernandez must establish the
requisite well-founded fear of future persecution by showing an objectively
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reasonable, and subjective fear of, persecution. E.g., Cabrera, 890 F.3d at
159–60. Hernandez contends her fear of future persecution is objectively
reasonable because a pattern or practice of persecution exists against lesbians
in El Salvador. See 8 C.F.R. § 1208.13(b)(2)(iii) (outlining avenues to
establish well-founded fear of persecution).
The BIA concluded the evidence failed to show persecution of
lesbians so systemic or pervasive in El Salvador to constitute a pattern or
practice of persecution. Hernandez contends the frequency of harm to
lesbians is underreported in El Salvador. (The Government responds
erroneously that this contention was not exhausted for purposes of 8 U.S.C.
§ 1252(d)(1) (exhaustion requirement). See Abubaker Abushagif v. Garland,
15 F.4th 323, 333 (5th Cir. 2021) (“[W]e only need to be able to reasonably
tie the appellate theories to the petitioner’s concrete statement[s] made to
the Board . . . .” (second alteration in original) (citation omitted)).)
Nevertheless, Hernandez has not shown the record compels a contrary
conclusion. See Chen, 470 F.3d at 1137–38. Additionally, contrary to her
contention, the BIA did not require her to show lesbians were persecuted in
El Salvador more than transgender individuals.
Second, regarding her contention that the BIA failed to meaningfully
consider relevant evidence, the BIA’s decision reflects she “received full and
fair consideration of all circumstances” giving rise to her claims. Ghotra v.
Whitaker, 912 F.3d 284, 290 (5th Cir. 2019) (citation omitted).
Finally, concerning withholding of removal and CAT relief, because
Hernandez fails to demonstrate eligibility for asylum, she also has not
satisfied her burden for withholding of removal. See Chen, 470 F.3d at 1138(“[T]he requirement of clear probability of persecution requires the
applicant to show a higher objective likelihood of persecution than that
required for asylum.”). And, CAT relief requires showing she, more likely
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than not, would be tortured in El Salvador involving state action. E.g.,
Tamara-Gomez v. Gonzales, 447 F.3d 343, 350–51 (5th Cir. 2006). But, her
challenge to the denial of CAT relief relies on the same failed contentions she
raises regarding asylum.
DENIED.
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