Lesly Odelia Cabrera v. Jefferson Sessions, III , 890 F.3d 153 ( 2018 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-60711
Fifth Circuit
FILED
May 7, 2018
LESLY ODELIA CABRERA, Lyle W. Cayce
Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration and Appeals
Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.
CARL E. STEWART, Chief Judge:
On May 27, 2014, Lesly Odelia Cabrera , a native citizen of Honduras,
fled to the United States and applied for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). The Immigration Judge
(“IJ”) denied all relief and Cabrera appealed to the Board of Immigration
Appeals (“BIA”), alleging the IJ misapplied the law in determining her refugee
status and denying relief. The BIA summarily dismissed the appeal. Cabrera
now brings this petition for review. We deny in part and grant in part the
petition for review.
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I. BACKGROUND
Petitioner fled to the United States without authorization in 2014
fearing, according to her, that her political activism posed a threat to her life
and that of her teenage son, Edwuard. 1 Prior to coming to the United States,
Cabrera lived in a poor, crime-afflicted neighborhood in Choloma, Honduras.
As in much of the country, Honduras’s large and powerful gangs—including
MS-13 or “the Maras” and their rivals, Barrio 18—are ubiquitous in Choloma.
According to Cabrera, the Maras murdered several members of her family,
including her cousin, nephew, and two brothers-in-law.
Cabrera says that she became politically active against the gangs and
the governing political party in March 2012. That month, the Maras
approached then-fifteen-year-old Edwuard as he was leaving school, robbed
him, and demanded that he join the gang. When he refused, they beat him and
threatened him at knifepoint, telling him that they would kill him if he did not
change his mind. Prior to Edwuard’s attack, the Maras raped, beat, and
murdered a female classmate who refused to join the gang. They dumped her
body in front of the school “for all to see.” The incident was reported to the
police who took no action. Dismayed that anyone had reported their crime at
all, according to Cabrera, the Maras “sent out a warning to the community—
anyone who speaks out against them will be physically assaulted or worse.”
After Edwuard’s assault, Cabrera joined a parents’ group at his school.
The group began staging public protests in front of the police station and in the
central park, demanding that the police provide protection at the school.
Although the police eventually agreed to send a patrol car, their presence
1 Edwuard entered the United States at the same time as Cabrera. His case was
administratively closed, and Cabrera has stated that Edwuard will remain in the United
States if she is removed to Honduras.
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lasted only a week or two, after which the parents’ group stood watch
throughout the day. Cabrera testified that she guarded the school twice a week
from 2012 until the time she left Honduras in 2014.
In addition to organizing protests with the parents’ group, Cabrera
joined the Libertad y Refundacion Party (“LIBRE”), a political party opposed
to the Maras and current government inaction and corruption. According to
one study Cabrera presented to the IJ, the “LIBRE party pre-candidates,
candidates, their families, and campaign leaders have suffered more killings
and armed attacks than all other political parties combined.” Cabrera
campaigned on behalf of the party and supported the LIBRE candidate for
mayor of Choloma. In October 2013, the Maras robbed Juan Pena, the
president of Cabrera’s parents’ group and fellow LIBRE party member,
threatening him and demanding that he leave the neighborhood. Pena, like
Cabrera, had been posting pro-LIBRE signs around Choloma.
In 2014, gang members robbed Cabrera. Fearing she and Edwuard “may
be harmed as a result of [her] protests against the Maras’ actions” and her
“denouncement of the government’s inaction and corruption,” she decided that
they “would just stay home.” Eventually, Cabrera grew “tired of feeling like a
prisoner in [her] own home” and traveled to the United States with Edwuard
in May of 2014.
After arriving in the United States, Cabrera applied for asylum,
withholding of removal, and relief under the CAT. Her claims were based on
her political opinion and her membership in a particular social group (“PSG”)
described as female human rights defenders from Honduras. Cabrera testified
that she was “afraid that if [she goes] back [to Honduras], [she] would be
immediately identified and . . . harmed, [kidnapped] or even killed by the
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Maras.” She also explained that returning to Honduras and relocating within
the country is not a possibility because she would always be in danger. 2
In addition to her own testimony, Cabrera presented unchallenged
testimony from Dr. Thomas Boerman, a recognized expert on Honduran gangs,
including “their culture, sociology, and psychology . . . and factors that affect
the Honduran government’s ability and willingness to respond to crime and
violence.” Dr. Boerman has traveled to Choloma on several occasions and
describes it as “a community that has been ravaged by gang violence.” He
testified that the government is unable and unwilling to prevent gang violence
against “activists and human rights defenders” or others who challenge the
gangs. Dr. Boerman explained that violent criminal gangs and related
government corruption are pervasive in Honduras and asserted that Cabrera’s
participation in public protests, her support of the LIBRE party, and her
gender put her at a particular risk of harm. According to Dr. Boerman, “[t]he
Honduran government acknowledges that organized criminal groups have
infiltrated state institutions—includ[ing] the police, military and judiciary.”
The Vice-President of the Honduran National Congress disclosed that “[forty]
percent of the country’s police officers are directly linked to organized crime.” 3
2 According to Cabrera’s expert, Dr. Thomas Boerman, “Honduras is a very small
country. It’s roughly the size of Virginia and much of that national territory is uninhabited,
it’s mountainous, there[ are] no roads, there’s no access to it. So, the population is
concentrated into a very, very small area.”
3 Cabrera also provided numerous supporting documents, including the United
Nations Report of the Special Rapporteur, which stated:
Owing to the exposed nature of their activities, human rights defenders and
their families continue to be vulnerable to extrajudicial executions, enforced
disappearance, torture and ill-treatment, arbitrary arrest and detention, death
threats, attacks, surveillance, harassment, stigmatization, displacement and
enforced exile. . . . Such violations are commonly attributed to law enforcement
authorities. However, collusion and/or acquiescence has also reportedly been
shown with regard to abuses committed by private actors, inter alia, criminal
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Dr. Boerman concluded that in his professional opinion “[Cabrera] may be at
risk of egregious physical harm if returned to Honduras, and that it is utterly
implausible to conclude that the Honduran government would be able or
willing to provide her even a modicum of protection against this threat.”
Although the IJ made no adverse findings regarding Cabrera’s
credibility, he denied all relief and ordered Cabrera removed to Honduras,
concluding that Cabrera “ha[d] not been persecuted in the past” where “one
central reason” for the persecution was “either her activities against the gangs
or against the violation of human rights.” The IJ also found no indication that
“one central reason” for Cabrera’s being robbed in 2014 was her “activity
against the gangs . . . or her participation in any political demonstrations or
groups.” He instead found that her fear and her attackers’ motivations were
both based in the general criminality of Honduras. Accordingly, the IJ
concluded Cabrera had not suffered past persecution on account of any factor
that would qualify her for asylum.
As to the likelihood of future persecution, the IJ noted “that gangs can
be expected to react viciously and violently against anyone who defies them.”
The IJ then determined – despite her own claim – Cabrera’s group was actually
“those who might defy gangs” and those people do not form a PSG. The IJ
reasoned that “[t]o simply pick out one way in which a specific individual has
defied a gang or disobeyed it and indicate that this has created a particular
social group does not constitute evidence of such a group as distinct in
gangs and private security guards. The Special Rapporteur was repeatedly
informed that impunity for such violations was a chronic problem.
Margaret Sekaggya, Report of the Special Rapporteur on the Situation of Human Rights
Defenders, UNITED NATIONS 12–13 (Dec. 13, 2012), http://www.ecoi.net/file_upload/1930_
1358957902_ahrc2247add-1-english.pdf.
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Honduran society.” The IJ thus concluded that Cabrera had “not demonstrated
that the fear she has of the gangs in Honduras would be on account of any
qualifying cause.”
The IJ similarly rejected Cabrera’s claim for withholding of removal on
the ground that she had not “shown a clear probability of future persecution
on account of any . . . qualifying cause.” As to Cabrera’s CAT claim, the IJ
found no evidence to establish a “clear probability that she would be tortured
by the government of Honduras or with its acquiescence.”
Cabrera appealed to the BIA. The BIA – in a single member, two-page
order – agreed with the IJ that Cabrera had not established the requisite
likelihood of persecution based on a protected classification as was needed for
asylum or withholding of removal. The BIA also adopted the IJ’s reasoning
that Cabrera was not entitled to CAT relief. Cabrera filed a timely petition for
review.
II. DISCUSSION
We review the BIA’s findings of fact for substantial evidence. Sealed
Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). That review
includes the IJ’s judgment to the extent it influenced the BIA’s decision. Id.
When the BIA summarily affirms the IJ’s opinions, we review the factual
findings and legal conclusions of the IJ. Id. Although we review factual findings
for substantial evidence, questions of law are reviewed de novo. Hernandez-De
La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016). “Substantial evidence is
lacking only if the petitioner establishes that the record [is] ‘so compelling that
no reasonable fact finder could fail to find’ the petitioner statutorily eligible for
asylum or withholding of removal.” Eduard v. Ashcroft, 379 F.3d 182, 186 (5th
Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992)).
However, we “may reverse a decision that was decided on the basis of an
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erroneous application of the law.” Sealed Petitioner, 829 F.3d at 384 (quoting
Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 1997)).
A. Asylum
Cabrera challenges the IJ’s denial of her asylum claim, arguing the IJ
committed legal errors in determining her refugee status. The Immigration
and Nationality Act authorizes the Attorney General to grant asylum to
refugees. 8 U.S.C. § 1158(a); Orellana-Monson v. Holder, 685 F.3d 511, 518
(5th Cir. 2012). The statute defines a refugee as:
Any person who is outside any country of nationality . . . and who
is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself to the protection of, that country because
of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion . . . .
8 U.S.C. § 1101(a)(42).
This circuit has interpreted this to mean asylum is “available where 1) a
person is ‘unwilling to return to’ their home country ‘because of persecution or
a well-founded fear of persecution’; and 2) the applicant has demonstrated that
‘race, religion, nationality, membership in a particular social group, or political
opinion was or will be at least one central reason for persecuting the
applicant.’” Tamara-Gomez v. Gonzales, 447 F.3d 343, 348 (5th Cir. 2006)
(emphasis added) (quoting 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i)); see also 8
C.F.R. § 208.13(b). Thus, a petitioner must prove that she was persecuted in
the past on account of one of the five statutory grounds or that she has a well-
founded fear of being persecuted in the future because of one of those grounds.
See Eduard, 379 F.3d at 187–92. “[A]lthough a statutorily protected ground
need not be the only reason for harm, it cannot be incidental, tangential,
superficial, or subordinate to another reason for harm.” Sealed Petitioner, 829
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F.3d at 383 (alteration in the original) (quoting Sharma v. Holder, 729 F.3d
407, 411 (5th Cir. 2013)).
The BIA agreed with the IJ’s finding that Cabrera did not prove that her
previous attack was on account of any of the five statutorily protected grounds.
Cabrera did not challenge this finding. However, despite finding adversely on
claims of past persecution, the IJ must determine whether the petitioner
demonstrated a well-founded fear of future persecution if asserted. See
Eduard, 379 F.3d at 188, 192. In the inquiry here, however, the IJ required
Cabrera to show that she was persecuted in the past to establish that her fear
was well-founded. It is well-established in this circuit that requiring a showing
of past persecution to support a well-founded fear of future persecution is an
erroneous application of the law. See id. (“[R]equiring an applicant to prove
past targeting to establish a well-founded fear would effectively replicate the
past persecution inquiry.”); see also Zhao v. Gonzales, 404 F.3d 295, 308 (5th
Cir. 2005) (“[T]he test does not require [the petitioner] to prove that he had
been personally targeted, because such an interpretation would render the
future persecution inquiry redundant of the past persecution analysis.”).
“To show a well-founded fear of persecution, an alien must have
subjective fear of persecution, and that fear must be objectively reasonable.”
Eduard, 397 F.3d at 189. The subjective fear must have a nexus to one of the
five statutory grounds. See id. at 189. In determining whether the petitioner
has a valid subjective fear, the IJ “may weigh the credible testimony along with
other evidence of record.” See 8 U.S.C. § 1158(b)(1)(B)(ii). If the petitioner’s
testimony is credible and refers to sufficient specific facts, a petitioner’s
testimony may be sufficient to demonstrate she is a refugee. Id.; see also Zhao,
404 F.3d at 300, 309 (using the petitioner’s credited testimony to establish facts
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supporting fear of future persecution when the IJ made no adverse findings
regarding the petitioner’s credibility).
Proving that fear is objectively reasonable, as this circuit previously
stated, “does not require an applicant to demonstrate that he will be
persecuted in his native country; rather the applicant must ‘establish, to a
“reasonable degree,” that return to his country of origin would be intolerable.’”
Eduard, 379 F.3d at 189 (emphasis added) (quoting Mikhael, 115 F.3d at 305);
see also Zhao, 404 F.3d at 307 (“This standard, however, does not require [the
petitioner] to demonstrate that he will be persecuted on returning to [his
country of nationality]. It requires a lesser showing . . . .”). Furthermore, the
plain language of the Code states that an IJ “shall not require” a petitioner to
prove “she would be singled out individually” if:
(A) The applicant establishes that there is a pattern or practice in
his or her country of . . . persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and
identification with, such group of persons such that his or her fear
of persecution upon return is reasonable.
8 C.F.R. 208.13(b)(2)(iii). Thus, if a petitioner does not prove that she will be
“singled out individually” in the future, she may still be eligible for asylum if
she establishes there is a practice of persecution against a group of which she
is so identifiably included that fear of her own persecution is reasonable. See
id.; see also Zhao, 404 F.3d at 307 (“There are therefore two different ways for
[the petitioner] to prove the objectivity of his claim.”); Wakkary v. Holder, 558
F.3d 1049, 1060 (9th Cir. 2009) (“In the asylum context, the INA's
implementing regulations map out two routes by which an asylum-seeker can
show that the objective risk of future persecution is high enough to merit
relief.”); Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir. 2009) (“[A]n applicant
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need not provide evidence of a “reasonable possibility” of being “singled out
individually for persecution” in the event that the applicant establishes “a
pattern or practice” in her country of persecution of “a group of persons
similarly situated to the applicant” on account of a protected ground.” (quoting
8 C.F.R. 208.13(b)(2)(iii)(A))).
To prove her fear is objectively reasonable a petitioner must prove:
(1) [s]he possesses a belief or characteristic a persecutor seeks to
overcome by means of punishment of some sort; (2) the persecutor
is already aware, or could become aware, that the alien possesses
this belief or characteristic; (3) the persecutor has the capability of
punishing the alien; and[] (4) the persecutor has the inclination to
punish the alien.
Eduard, 379 F.3d at 191 (citing Matter of Mogharrabi, 19 I. & N. Dec. 439, 446
(BIA 1987)). Cabrera asserted that she maintained a fear of future persecution
on account of her political opinion and her membership in a particular social
group.
1. Political Opinion
“To demonstrate persecution ‘on account of’ political opinion, the burden
is on the alien to prove [her] ‘political opinion was or will be at least one central
reason for persecuting the applicant.’” Milat v. Holder, 755 F.3d 354, 360 (5th
Cir. 2014) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Cabrera defined her political
opinion as pro rule-of-law, anti-corruption, and anti-gang. The IJ determined
that Cabrera likely had a subjective fear of persecution but found that it was
not objectively reasonable for Cabrera to fear persecution given that she had
not been persecuted in the past for her political activism. In the IJ’s opinion,
Cabrera did nothing “during her time in Honduras for which she was
specifically retaliated against” and “there was no action taken against” her as
a result of her increased activity. Although the IJ misapplied the law in
requiring Cabrera to show past persecution, we affirm nonetheless; substantial
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evidence does not compel a different result because the record supports the
finding that there was no pattern of persecution against similarly situated
individuals because of their political opinion.
Cabrera pointed to multiple acts that she asserted established a pattern
of persecution against others like her because of their political opinion.
Cabrera became involved in LIBRE, a political party which opposed the
current government, corruption, and gang activity. She claimed LIBRE
members were specifically persecuted because of their political opinions. She
asserted that the president of the parents’ group associated with LIBRE was
robbed and his life was threatened for openly supporting LIBRE in the
neighborhood. However, the record supported the finding that the man was not
targeted because of his political affiliation but because, as Cabrera stated, “[the
Maras] charged a war tax in the places . . . they controlled.”
Cabrera also provided a list of individuals who were killed or attacked
as a result of their political activity. LIBRE was disproportionately
represented; although it was one of eight political parties, fifty-five percent of
the known attacks were against LIBRE members. However, the study
accompanying the list acknowledged the list’s limitations: the list was
incomplete; it did not include those who were not candidates, but were deeply
involved in the campaign; and fear of further persecution led to underreporting
politically-motivated attacks. That those listed were candidates, pre-
candidates, or their relatives undercuts Cabrera’s claims. Cabrera was not, nor
was she related to, a candidate or pre-candidate. Thus, this list does not show
a pattern of persecution against those similarly situated to Cabrera because of
their political opinion.
Lastly, Dr. Boerman provided testimony that his research illuminated
that LIBRE party members expressed fear of retaliation as a result of their
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political opinion and had taken steps to further ensure their security. However,
the expert’s opinion fails to compel a different result because this subjective
fear was insufficient to show a pattern of actual persecution against similarly
situated LIBRE party members. Thus, substantial evidence supports the IJ’s
finding that Cabrera failed to establish a well-founded fear of persecution
based on her political opinion.
2. Particular Social Group
Cabrera also asserted that she maintained a fear of future persecution
on account of her membership in a particular social group. However, the IJ
failed to consider the PSG of which Cabrera asserted she was a member. The
IJ found that, although she had subjective fear, Cabrera could not point to a
time where she was specifically retaliated against for her activism. He added
that her fear of retaliation was only speculative and simply indicative of the
characteristics of Honduras.
We review the BIA’s decision “’procedurally’ to ensure that the
complain[ant] has received full and fair consideration of all circumstances that
give rise to his or her claims.” Abdel-Masieh v. INS, 73 F.3d at 579, 585 (5th
Cir. 1996) (quoting Zamora-Garcia v. INS, 737 F.2d 488, 490 (5th Cir. 1984).
The BIA’s decision must reflect a meaningful consideration of all the relevant
evidence supporting an asylum seeker’s claims. See id. at 584–85; see also
Woldu v. Gonzales, 209 F. App’x 380, 381 (5th Cir. 2006) (unpublished). “We
do not require the BIA to specifically address every piece of evidence put before
it,” but it is error for the agency to “fail[] to address . . . key evidence.” See
Abdel-Masieh, 73 F.3d at 585.
The IJ failed to consider whether Cabrera belonged to the PSG she
alleged and whether she had a well-founded fear of persecution on account of
that membership. In order to prove membership in a particular social group,
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the BIA established – and this circuit accepted – a test that questions: “(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.’” Orellana-Monson, 685 F.3d at 519 (quoting In re A-M-E- & J-G-
U-, 24 I. & N. Dec. 69, 69 (BIA 2007)); see also Hernandez-De La Cruz, 819 F.3d
at 786.
It is not usual that an IJ fails to evaluate the claim before it, and this
circuit has not decided a case under these particular circumstances where
instead of evaluating the presented PSG, the IJ posits and evaluates his own.
However, similar facts can be found in other circuits. See Rios v. Lynch, 807
F.3d 1123, 1126 (9th Cir. 2015) (IJ erroneously evaluated the PSG as witnesses
against gangs instead of a particular family that was targeted by gangs);
Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011) (IJ erroneously
evaluated the PSG as those who oppose gangs instead of those who suffer
persecution because they are related to prosecutorial witnesses); Valdiviezo-
Galdamez v. U.S. Att’y Gen., 502 F.3d 285, 290–91 (3d Cir. 2007) (IJ
“curious[ly]” failed to evaluate the PSG altogether, instead summarily
concluding the petitioner’s attacks had “no nexus to a protected ground”). In
Crespin-Valladares, the petitioners claimed they feared persecution on account
of their being family members of prosecutorial witnesses who agreed to testify
against El Salvadorian gangs. 632 F.3d at 125. The BIA instead identified the
group as “those who actively oppose gangs in El Salvador” and concluded that
group did not constitute a cognizable social group. Id. The Fourth Circuit found
that the BIA committed legal error in concluding that the petitioners were not
members of a particular social group because “the family provides ‘a
prototypical example of a “particular social group.”’” Id. (quoting Sanchez-
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Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). That error, according to
the court of appeals, flowed from the IJ’s error in “reject[ing] a group different
from that which the Crespins proposed.” Id.
Here, Cabrera identified her group as female activists or human rights
defenders from Honduras who actively protest the Maras. The IJ instead
identified her group as “those who might defy gangs.” The IJ did not consider
her identified status as a woman and the role her gender played in her feared
persecution. Dr. Boerman provided evidence that not only were individuals
who opposed the governing party attacked, but the likelihood increased when
the person presenting opposition was a woman. He noted that unmarried
women were considered “low-hanging fruit,” so defiant women and girls were
raped by multiple gang members simultaneously, and their bodies or body
parts were put on display to send a message. 4 Additionally, Cabrera provided
reports from the U.S. State Department, the United Nations, and Human
Rights Watch supporting those assertions. However, the IJ did not consider
the expert’s evidence regarding politically active women. Instead, the IJ
determined that Cabrera feared the general gang activity that was consistent
4 Dr. Boerman explained that if a woman, particularly a single woman like Cabrera,
challenges a gang member[,] the gang will victimize [her] in ways not only to
punish her as an individual, but [to] send . . . horrifically graphic messages to
the larger community that says, if you women rebuff us, challenge us, confront
us, this is what you can expect[,] and in fact . . . one tactic that’s just hideous
beyond comprehension . . . that gangs very commonly employ is one . . . that I
call torture rape. Torture rape involves, number one, multiple assailants,
number two . . . extremes of cruelty and very often ends in the murder and the
dismemberment of the victim with her body parts scattered around soccer
fields or on her family’s door step. It’s done, and it’s done quite frequently, as
means of conveying this message that if you woman challenge us, this is what
you can expect. So, there are some unique risks that . . . relate very specifically
to [Cabrera’s] status as a woman and a single unprotected woman in
particular.
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in various Central American countries and stated he did “not believe that this
would create a particular social group encompassing all of those who might
defy gangs.”
The IJ never evaluated whether Cabrera described this group with
particularity. The IJ did not analyze whether members of the group shared
common immutable traits. The judge only stated that those who defy gangs are
not a distinct group in Honduran society. This was erroneous and a failure to
comply with the agency’s own standards and responsibilities and provide a
meaningful consideration of all the relevant and substantial evidence
supporting Cabrera’s fear of future persecution claim. See Abdel-Masieh, 73
F.3d at 585 (“[The BIA’s] decision must reflect a meaningful consideration of
the relevant substantial evidence supporting an alien’s claims.”); see also In re
Argueta, 2003 WL 23521910, at *1 (BIA Nov. 14, 2003) (unpublished) (finding
the IJ erred in characterizing the applicant’s claim as “related to . . . his sexual
preference” when the applicant claimed membership in the social group
“persons living with AIDS in Honduras,” but dismissing the appeal because
the applicant — who was ineligible for asylum — could not prove the
heightened requirements for withholding of removal (omission in original)). As
such, we must remand for the agency to comply with its established
responsibility. See Abdel-Masieh, 73 F.3d at 585 (“Where an agency has failed
to comply with its responsibilities, we should insist on its compliance rather
than attempt to supplement its efforts.” (quoting Sanon v. INS, 52 F.3d 648,
652 (7th Cir. 1995))); see also Rios, 807 F.3d at 1126 (“The IJ’s characterization
misapprehended [the petitioner]’s complaint . . . . The BIA did not address this
social group claim—a failure that constitutes error and requires remand.”);
Valdiviezo-Galdamez, 502 F.3d at 290 (“[N]either the IJ nor the BIA decided
whether the group of which [the petitioner] claims to be a member . . . is a
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‘particular social group’ within the meaning of the Act. We decline to decide
this question in the first instance.”).
B. Withholding of Removal & Convention Against Torture
The IJ rejected Cabrera’s claim for withholding of removal on the ground
that she had not “shown a clear probability of future persecution on account of
any . . . qualifying cause.” The “clear probability” standard requires a showing
that it is more likely than not that Cabrera’s life or freedom would be
threatened by persecution on a protected ground. See Roy v. Ashcroft, 389 F.3d
132, 138 (5th Cir. 2004). This is a higher standard than asylum. Id. The BIA’s
conclusion that Cabrera did not meet this higher standard was supported by
substantial evidence.
Additionally, the IJ’s conclusion that Cabrera is not entitled to relief
under the CAT was substantially reasonable based upon the evidence
presented. Although the evidence suggests that Cabrera faces some likelihood
of persecution if she returns to Honduras, it is not sufficient to “compel” a
different result. See Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); Roy,
389 F.3d at 137–38 (quoting 8 U.S.C. § 1252(b)(4)(B)).
III. CONCLUSION
In sum, we hold that the BIA erred in requiring Cabrera to prove past
persecution to establish a claim based on a well-founded fear of future
persecution; and, second, in recharacterizing Cabrera’s claimed social group.
In all other respects, the decision of the BIA is affirmed.
Accordingly, Cabrera’s petition for review is DENIED, in part, and
GRANTED, in part, and the case is REMANDED for further proceedings not
inconsistent with this opinion.
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