Joel Hernandez-De La Cruz v. Loretta Lynch , 819 F.3d 784 ( 2016 )

Case: 14-60730 Document: 00513481452 Page: 1 Date Filed: 04/26/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60730
Fifth Circuit
FILED
Summary Calendar April 26, 2016
Lyle W. Cayce
JOEL HERNANDEZ-DE LA CRUZ, Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Joel Hernandez-De La Cruz, a native and citizen of Mexico, petitions for
review of the denial of his applications for withholding of removal under section
241(b)(3) of the Immigration and Nationality Act and protection under the
Convention Against Torture. These applications were based on Petitioner’s
claims that he was kidnapped and assaulted by members of the Zetas, a
Mexican criminal syndicate, who released him only after he agreed to pay
$15,000—and that after he reported that incident to the police in defiance of
the Zetas’ instructions, corrupt police officers threatened and beat him. As
explained below, we lack jurisdiction over many of Petitioner’s challenges and
find the remainder meritless.
Case: 14-60730 Document: 00513481452 Page: 2 Date Filed: 04/26/2016
No. 14-60730
I.
In considering a petition for review, we look only to the decision of the
Board of Immigration Appeals (BIA), unless the decision of the Immigration
Judge (IJ) “has some impact on the BIA’s decision.” Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009). We review the BIA’s factual findings for substantial
evidence and its legal conclusions de novo. Sharma v. Holder, 729 F.3d 407,
411 (5th Cir. 2013).
II.
Petitioner argues that the BIA erred in denying him withholding of
removal by rejecting his claim that, because of his reporting of the criminal
activity of which he was a victim, he would be threatened with persecution in
Mexico based on his “membership in a particular social group[] or political
opinion.” See 8 U.S.C. § 1231(b)(3)(A). We first clarify the scope of our
jurisdiction. We have jurisdiction to review final orders of removal, including
the reinstatement of a removal order. Garcia v. Holder, 756 F.3d 885, 890 (5th
Cir. 2014). But “[j]udicial review of a final removal order is available only if
the applicant has exhausted all administrative remedies as of right” by
presenting each issue to the BIA. Dale v. Holder, 610 F.3d 294, 298 (5th Cir.
2010) (alteration in original) (quoting Carranza-De Salinas v. Gonzales, 477
F.3d 200, 206 (5th Cir. 2007)). Regarding his purported “whistleblowing”
activity, Petitioner argued to the IJ and BIA only that he was persecuted on
account of his political opinion. Accordingly, to the extent he now argues that
whistleblowers constitute a particular social group, we lack jurisdiction to
review such a claim. See id. at 298–301.
Further, 8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction to review final
removal orders against aliens who are removable by reason of having
committed certain criminal offenses, including those “involving moral
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turpitude” under § 1182(a)(2)(A)(i)(I). Petitioner does not dispute that he falls
into this category. We thus lack jurisdiction over the reinstatement of his
removal order, except to the extent he raises legal or constitutional questions.
See 8 U.S.C. § 1252(a)(2)(D). Accordingly, we have no authority to consider
Petitioner’s arguments that the IJ and the BIA erroneously found that he was
mistreated by people driven by economic motives—not Petitioner’s political
opinion as expressed through whistleblowing activity. See Medina v. Holder,
544 F. App’x 301, 302 (5th Cir. 2013) (per curiam) (holding that § 1252(a)(2)(C)
barred jurisdiction over claims that the BIA incorrectly concluded a petitioner
was ineligible for withholding of removal); Thuri v. Ashcroft, 380 F.3d 788, 791
(5th Cir. 2004) (per curiam) (holding that whether an alien was persecuted on
account of her political opinion was a question of fact).
In contrast, Petitioner’s challenge to the determination that “former
informants” do not constitute a “particular social group” is a legal question that
we have jurisdiction to review. See Hongyok v. Gonzales, 492 F.3d 547, 550
(5th Cir. 2007). To establish that he was persecuted based on his membership
in a particular group, Petitioner must show he is a member “of a group of
persons that share a common immutable characteristic that they either cannot
change or should not be required to change because it is ‘fundamental to their
individual identities or consciences.’” Orellana-Monson v. Holder, 685 F.3d
511, 518 (5th Cir. 2012) (quoting Mwembie v. Gonzales, 443 F.3d 405, 414–15
(5th Cir. 2006)). We have agreed with the BIA’s framework for determining
whether a particular social group exists:
(1) “whether the group’s shared characteristic gives the members
the requisite social visibility to make them readily identifiable in
society” and (2) “whether the group can be defined with sufficient
particularity to delimit its membership.” Social visibility is
determined by “the extent to which members of a society perceive
those with the characteristic in question as members of a social
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group.” Particularity is determined by “whether the proposed
group can accurately be described in a manner sufficiently distinct
that the group would be recognized, in the society in question, as
a discrete class of persons.”
Id. at 519–20 (citations omitted). 1
In unpublished cases—which are persuasive authority, id. at 519—we
have rejected similar proposed social groups. See Soriano-Dominguez v.
Holder, 354 F. App’x 886, 888 (5th Cir. 2009) (“Soriano-Dominguez has not
established that ‘non-criminal witnesses who have reported crimes’ are readily
identifiable or have immutable characteristics that they should not be asked
to change.”); Calel-Chitic v. Holder, 333 F. App’x 845, 847–48 (5th Cir. 2009)
(“Petitioner has shown only that a gang of local criminals has threatened him
because they do not want to be caught and convicted. Petitioner has not shown
that he is identifiable as a member of a determinable group of government
witnesses who suffer persecution in Guatemala . . . .”). We have likewise held
that an alien’s refusal to pay bribes to local gangs did not make her a member
of a protected social group. See Sorto-De Portillo v. Holder, 358 F. App’x 606,
608 (5th Cir. 2010) (per curiam) (“Numerous other cases . . . have held that
one’s personal anti-gang values or antagonistic relationship with gangs does
not amount to a common immutable characteristic establishing a particular
social group.”). Similar logic leads us to reject Petitioner’s proposed particular
social group here.
Although a local journalist reported that Petitioner had been beaten, it
does not follow that his proposed group of former informants has “social
1 While adhering to its prior interpretations of “particular social group,” the BIA
recently renamed the first element of this test “social distinction” to “emphasize that literal
or ‘ocular’ visibility is not required.” Matter of M-E-V-G-, 26 I & N. Dec. 227, 228 (BIA 2014);
see Villalobos-Ramirez v. Lynch, 608 F. App’x 261, 262 (5th Cir. 2015) (per curiam)
(explaining that Matter of M-E-V-G- clarified but did not “depart[] from the principles
established in its prior cases”).
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distinction” or would be perceived as a particular group, because—according to
factual findings that we lack jurisdiction to reconsider—the members of
Petitioner’s proposed group are not substantially different from anyone else in
the general population who resists the Zetas or otherwise threatens their
interests. Given this finding regarding the broad group of people who may be
subjected to similar treatment from the Zetas, Petitioner’s proposed particular
social group is not sufficiently particular. Thus, there is no indication that an
incorrect legal standard was applied or that it was legally erroneous to
conclude that former informants do not constitute a particular social group.
III.
Finally, Petitioner challenges the rejection of his claim for protection
under the Convention Against Torture. We lack jurisdiction to consider
Petitioner’s arguments that, contrary to the factual findings below, he faces a
probability of torture upon return to Mexico based on his reporting of his
mistreatment and not economic reasons. See 8 U.S.C. § 1252(a)(2)(C);
Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir. 2012). Likewise, we
lack jurisdiction over his factual arguments regarding the reach and power of
the Zetas in Mexico and his ability to safely relocate. We do have jurisdiction
to the extent Petitioner argues that the IJ and BIA applied the wrong legal
standard in determining that he could not relocate to a part of Mexico where
he is unlikely to be tortured, but that argument fails on its merits. See 8 C.F.R.
§ 208.16(c)(2) & (c)(3)(ii) (placing the burden of proof on the applicant and
directing consideration of “[e]vidence that the applicant could relocate to a part
of the country of removal where he or she is not likely to be tortured”).
IV.
In accordance with the foregoing, the petition for review is DISMISSED
IN PART and DENIED IN PART.
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