Ramirez Rojas v. Garland

Case: 20-61172 Document: 00516349045 Page: 1 Date Filed: 06/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-61172 June 8, 2022
Lyle W. Cayce
Clerk
Mario Rene Ramirez Rojas,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 969 956
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam:*
Petitioner Mario Rene Ramirez Rojas seeks review of an order from
the Board of Immigration Appeals (“BIA”) affirming the decision of the
Immigration Judge (“IJ”) denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”).
For the following reasons, the petition is denied in part and dismissed in part.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-61172 Document: 00516349045 Page: 2 Date Filed: 06/08/2022
No. 20-61172
I. FACTUAL & PROCEDURAL BACKGROUND
Ramirez Rojas, a native and citizen of Guatemala, entered the United
States illegally in 1999. In September 2014, the Department of Homeland Se-
curity served Ramirez Rojas with a Notice to Appear (“NTA”) charging him
with removability as an alien present in the United States without being ad-
mitted or paroled in violation of 8 U.S.C. § 1182(a)(6)(A)(i).
In April 2016, Ramirez Rojas appeared with counsel before an IJ, ad-
mitted to the allegations in the NTA, and conceded that he was removable as
charged. He also indicated that he intended to pursue a previously filed ap-
plication for asylum, withholding of removal, and protection under the CAT.
He sought withholding of removal based on his membership in a particular
social group (“PSG”) that he identified as “community commissioners tar-
geted by gangs for assisting the government[] and attempting to curtail gang
activity.” In June 2017, he appeared with counsel at a hearing on the merits
of his I-589 application. There, his counsel confirmed the previously identi-
fied PSG of community commissioners targeted by gangs and added another
PSG—“former members of the military.”
Ramirez Rojas testified that while living in Guatemala, he worked as a
“military commissioner” and assisted the Guatemalan army in capturing
members of the guerrilla movement and other criminals. He retired from his
position in 1998, and by the end of that year, two of his former colleagues had
been killed. Ramirez Rojas testified that he believed that they were killed be-
cause of their work as military informants. One month after the killings, an
anonymous note was left at Ramirez Rojas’s home that said, “you also are
going to go visit your friends” and he interpreted the note to mean that he
would be killed based on his prior work as a military commissioner. He testi-
fied that he did not report the threatening note to the police because he be-
lieved that they could not be trusted based on their reputation for accepting
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bribes. Four days after receiving the note, Ramirez Rojas left Guatemala for
the United States.
Though Ramirez Rojas feared being harmed if removed to Guatemala,
he conceded that he had never been physically harmed while residing there.
Additionally, he admitted that he had not received any threats since he came
to the United States and that there was no indication that anyone was looking
for him in Guatemala. He also confirmed that his daughter continued to live
in Guatemala and had not received any threats. He further testified that, even
though he had retired from his position as a military commissioner 20 years
ago, “there [were] people [in Guatemala] who hate[d] [him]” because of the
information that he had provided to the military and the police. When asked
why he waited until 2014 to file his asylum application, Ramirez Rojas re-
sponded that he was afraid that he would be deported.
The IJ issued an oral decision denying Ramirez Rojas’s application for
asylum, withholding of removal, and CAT protection. The IJ determined
that the application was untimely because it was not filed within one year of
Ramirez Rojas’s arrival to the United States but nonetheless considered the
merits of the application. In doing so, it concluded that the one anonymous
threat that Ramirez Rojas received did not rise to the level of past persecu-
tion. Alternatively, the IJ determined that even if Ramirez Rojas had suffered
harm rising to the level of past persecution, he had failed to meet his burden
of showing that he was persecuted based on his membership in a PSG.
The IJ likewise concluded that Ramirez Rojas had failed to show a
well-founded fear of future persecution that was objectively reasonable. This
is because the anonymous threat that he received did not mention his former
position as a military commissioner, and his testimony did not suggest that
he would be harmed as a former member of the military. The IJ also reasoned
that Ramirez Rojas had failed to show that the Guatemalan government was
unwilling or unable to protect him because he often worked with the police
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to apprehend criminals and this belied any claim that the police would not
have helped him if he had reported the letter.
Because Ramirez Rojas had not shown past persecution or a well-
founded fear of future persecution based on a statutorily protected ground,
the IJ determined that he was not eligible for asylum. Further, he was not
entitled to withholding of removal given his failure to meet the lower stand-
ard to be eligible for asylum. Finally, he was not eligible for CAT protection
because he had not shown that it was more likely than not that he would be
tortured if he returned to Guatemala.
Ramirez Rojas appealed the IJ’s decision to the BIA which affirmed
the IJ’s decision without a written opinion. He then filed this petition for re-
view.
II. Standard of Review
“When the BIA affirms the IJ’s decision without an opinion, as is the
case here, the IJ’s decision is the final agency decision for purposes of judicial
review on appeal.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). We
review the IJ’s factual findings for substantial evidence, while legal questions
are reviewed de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
The factual determination that an alien is not eligible for asylum, withholding
of removal, or CAT protection is reviewed under the substantial evidence
standard. Chen, 470 F.3d at 1134.
“The substantial evidence standard requires only that the [IJ’s]
decision be supported by record evidence and be substantially reasonable.”
Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). Under that standard,
we may not reverse an IJ’s factual findings unless the evidence compels a
contrary conclusion. Chen, 470 F.3d at 1134. “The applicant has the burden
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of showing that the evidence is so compelling that no reasonable factfinder
could reach a contrary conclusion.” Id.III. DISCUSSION
As a preliminary matter, we note that Ramirez Rojas has failed to raise
any type of substantive challenge to the IJ’s holdings on his claims for asylum
and CAT protection. Consequently, he has abandoned these claims on appeal
and we need only address his claims related to withholding of removal. See
Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (explaining that when an appellant fails to identify any error in the dis-
trict court’s analysis, it is as if the appellant had not appealed); see also
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (applying Brinkmann
in the immigration context).
An applicant for withholding of removal must show a “clear probabil-
ity” that his life or freedom would be threatened by persecution on account
of the protected grounds of race, religion, nationality, membership in a PSG,
or political opinion. See Mwembie v. Gonzales, 443 F.3d 405, 410 n.9 (5th Cir.
2006) (internal quotation marks and citation omitted); 8 C.F.R. § 208.16(b).
If past persecution based on a protected ground is established, future perse-
cution on the same basis “shall be presumed.” § 208.16(b)(1)(i). Absent past
persecution, an applicant may be granted withholding of removal if he estab-
lishes “that it is more likely than not” that he would be persecuted based on
a protected ground. § 208.16(b)(2).
“Persecution is an extreme concept that does not include every sort
of treatment our society regards as offensive.” Eduard v. Ashcroft, 379 F.3d
182, 187 n.4 (5th Cir. 2004) (internal quotation marks and citation omitted).
It “requires more than a few isolated incidents of verbal harassment or intim-
idation, unaccompanied by any physical punishment, infliction of harm, or
significant deprivation of liberty.” Id. (citation omitted). Persecution cannot
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be based on “mere denigration, harassment, and threats.” Id. at 188. This
court has previously stated that receipt of a “single threat . . . does not con-
stitute past persecution.” Morales v. Sessions, 860 F.3d 812, 816 (5th Cir.
2017). Moreover, we have held that death threats, without more, do not rise
to the level of persecution. Pirmuhammad v. Ashcroft, 122 F. App’x 132, 133
(5th Cir. 2005) (holding that multiple death threats, without physical abuse,
police detention, or interrogation, are not persecution); Chamorro v. Ashcroft,
119 F. App’x 608, 609 (5th Cir. 2004) (same); Zapeta v. Ashcroft, 103 F.
App’x 857, 858 (5th Cir. 2004) (same); Torres v. Ashcroft, 88 F. App’x 706,
707 (5th Cir. 2004) (same).
Here, Ramirez Rojas has proven at most that he received a single,
anonymous death threat while living in Guatemala that was unaccompanied
by any physical harm or deprivation of liberty. See Eduard, 379 F.3d at 187
n.4. This evidence does not compel the reversal of the IJ’s determination that
Ramirez Rojas had not established harm rising to the level of persecution. See
Chen, 470 F.3d at 1134.
We also reject Ramirez Rojas’s argument that the killings of his two
coworkers should be considered persecution against him. First, we do not
have jurisdiction to hear this argument because he failed to exhaust his ad-
ministrative remedies by presenting it to the immigration court. 8 U.S.C.
§ 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); see also Omari
v. Holder, 562 F.3d 314, 321 (5th Cir. 2009). Accordingly, we dismiss this part
of his petition for lack of jurisdiction. Second, even if we could reach the mer-
its of this claim, “[n]either [this court] nor the BIA has ever held that an alien
can seek asylum based upon the alleged past-persecution of another.” Mo-
rales, 860 F.3d at 816.
Ramirez Rojas has also failed to show that the anonymous threat that
he received was based on his membership in the PSG of former members of
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the military.1 To be eligible for withholding of removal on these grounds, he
must show that his membership in a PSG was or will be at least one of the
central reasons behind his persecution. See Shaikh v. Holder, 588 F.3d 861,
864 (5th Cir. 2009). While his membership in a PSG does not have to be the
only reason for harm, “it cannot be incidental, tangential, superficial, or sub-
ordinate to another reason for harm.” Id. (internal quotation marks and cita-
tion omitted).
The anonymous threatening note that Ramirez Rojas received did not
mention his former position as a military commissioner. He assumes that be-
cause the note referenced his former colleagues, their shared military service
must have been the motivation for the threat. This speculation, however, is
insufficient to make the required showing. See Milat v. Holder, 755 F.3d 354,
364 (5th Cir. 2014) (rejecting petitioner’s speculation as a basis for reversing
the BIA’s denial of immigration relief).
Moreover, he has provided no evidence that the author of the threat-
ening note was motivated by animus against former members of the military
as opposed to a desire for retribution against him personally for reporting
criminal activity to the police. As this court has held, “[p]ersecution moti-
vated by a personal vendetta or desire for revenge is not persecution ‘on ac-
count of’ a protected ground.” Martinez Manzanares v. Barr, 925 F.3d 222,
227 (5th Cir. 2019) (citation omitted). Because Ramirez Rojas has failed to
show that he was persecuted based on his membership in a PSG, the IJ cor-
rectly determined that he was not entitled to withholding of removal. See
Shaikh, 588 F.3d at 864.
1
He does not challenge the IJ’s rejection of his other PSG of “community
commissioners targeted by gangs for assisting the government and attempting to curtail
gang activity.” As such, he has abandoned any such argument by failing to brief it.
See Soadjede, 324 F.3d at 833.
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We also agree with the IJ that Ramirez Rojas has failed to carry his
burden of demonstrating a well-founded fear of future persecution based on
a protected ground. “To show a well-founded fear of persecution, [the peti-
tioner] must have a subjective fear of persecution, and that fear must be ob-
jectively reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.
2001). Although, “[t]he well-founded fear standard does not require an ap-
plicant to demonstrate that he will be persecuted if returned to his native
country, [it] requires that he establish persecution as a reasonable possibil-
ity.” Chen, 470 F.3d at 1135 (internal quotation marks and citations omitted).
While Ramirez Rojas claims that he would continue to receive death
threats if he returned to Guatemala, there is no record evidence to support
his claim. To the contrary, he testified that since he left Guatemala 20 years
ago, he has not received any additional death threats, and there is no indica-
tion that the author of the threatening note or anyone else is looking for him.
Accordingly, he has failed to demonstrate a well-founded fear of future per-
secution based on a protected ground. See Lopez-Gomez, 263 F.3d at 445.
IV. CONCLUSION
For the foregoing reasons, the petition for review is DENIED in part
and DISMISSED in part.
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