Suar Ticum v. Garland ( 2023 )

Case: 23-60149 Document: 00516932231 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 16, 2023
No. 23-60149 Lyle W. Cayce
Summary Calendar Clerk
____________
Bernardina Suar Ticum,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A216 383 277
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Bernardina Suar Ticum, a native and citizen of Guatemala, petitions
for review of a decision of the Board of Immigration Appeals (BIA),
dismissing her appeal and affirming the denial by the immigration judge (IJ)
of asylum, withholding of removal, and protection under the Convention
Against Torture (CAT).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60149
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). By adopting the IJ’s decision and citing to Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), the BIA effectively preserved
the IJ’s decision for review. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997).
The BIA’s factual findings are reviewed for substantial evidence, and
its legal conclusions are reviewed de novo. Orellana-Monson, 685 F.3d at 517.
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.
Chen v. Gonzalez, 470 F.3d 1131, 1134 (5th Cir. 2006).
As an initial matter, Suar Ticum argues that because her Notice to
Appear (NTA) lacked the date and time of her removal hearing, jurisdiction
never vested with the immigration court. This court held in Pierre-Paul v.
Barr, 930 F.3d 684, 691–93 (5th Cir. 2019), that a defect in an NTA does not
deprive an immigration court of jurisdiction over removal proceedings.
Though the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct.
1474 (2021), abrogated Pierre-Paul in part, we have since confirmed that the
jurisdictional holding from Pierre-Paul remains “the law of [this] circuit,”
even after Niz-Chavez. Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir.
2021). Thus, there is no merit to Suar Ticum’s contention that the
immigration court lacked jurisdiction over her removal proceedings.
See Pierre-Paul, 930 F.3d at 693.
Suar Ticum next argues that the three threats she received from her
brother’s ex-girlfriend in Guatemala are sufficient to show past persecution.
This court has observed that “[p]ersecution is often described in the
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No. 23-60149
negative: It is not harassment, intimidation, threats, or even assault.” Gjetani
v. Barr, 968 F.3d 393, 397 (5th Cir. 2020). Similarly, it “does not encompass
all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006)
(internal quotation marks and citation omitted). As such, the BIA reasonably
found that the three threats Suar Ticum received did not rise to the level of
persecution. See Omagah, 288 F.3d at 258.
Additionally, Suar Ticum argues that the BIA erred in finding that the
harm she suffered and feared in Guatemala did not have the requisite nexus
to a protected ground. Though Suar Ticum contends that her family
relationship, particularly her relationship to her brother Carlos, was one
central reason for the harm she suffered, the record does not support her
contention.1
Suar Ticum testified that her brother’s ex-girlfriend targeted her
because she was angry at Carlos for ending their romantic relationship and
wanted revenge, not because of any animus towards Suar Ticum’s family.
Given that Suar Ticum has shown only personal motives behind the threats
she experienced in Guatemala, the BIA did not err in finding that she had
failed to show the requisite nexus between the alleged persecution and a
protected ground. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
_____________________
1
Suar Ticum states elsewhere in her brief that she was persecuted and has a well-
founded fear of future persecution based on her religion and her membership in several
other PSGs. Suar Ticum has failed to brief these issues adequately for review and has
abandoned them. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
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No. 23-60149
Finally, Suar Ticum argues that the BIA erred in affirming the IJ’s
denial of CAT relief because her credible testimony and the country
conditions evidence supports the finding that it is more likely than not that
she will be tortured if removed to Guatemala.
Before the IJ, Suar Ticum testified that she did not report her
brother’s ex-girlfriend’s threats to the police because the police “don’t do
anything,” and she did not want to put her family in danger. She asserted
that in her hometown in Guatemala, the police routinely released criminals
from jail after “two or three days,” even individuals accused of murder.
Based on her experiences in Guatemala, Suar Ticum testified that she did not
believe that the police could protect her from her brother’s ex-girlfriend, who
had threatened to kill her.
Though the country conditions evidence describes instances of police
corruption and abuse of authority, on balance, it does not compel the
conclusion that Suar Ticum would “more likely than not” be tortured if
removed to Guatemala. See Mwembie v. Gonzales, 443 F.3d 405, 415 (5th Cir.
2006); see also Chen, 470 F.3d 1142 (explaining that “[t]he government’s
inability to provide ‘complete security’ to the petitioner from [private actors]
did not rise to the level of state action” required under the CAT). As such,
the BIA did not err in adopting the IJ’s finding that Suar Ticum had failed to
show that she was eligible for relief under the CAT.
The petition for review is DENIED.
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