Johana Herrera Morales v. Jefferson Sessions, III

Case: 15-60761 Document: 00514050756 Page: 1 Date Filed: 06/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fif h Circuit
FILED
June 27, 2017
No. 15-60761
Lyle W. Cayce
Clerk
JOHANA DEL CARMEN HERRERA MORALES, also known as Johana del
Carmen,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Johana Del Carmen Herrera Morales (“Petitioner”) is a ten-year-old
native and citizen of El Salvador, who is in the United States illegally, and who
admits that she is removable. However, in an effort to remain in the United
States, Petitioner has filed an application for asylum, withholding of removal
pursuant to the Immigration and Nationality Act (“INA”), and withholding of
removal pursuant to United Nations Convention Against Torture (CAT). An
Immigration Judge (IJ) denied Petitioner’s application, and the Board of
Immigration Appeals (BIA) affirmed. Petitioner has now filed a petition for
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No. 15-60761
review asking us to reverse the BIA. For the reasons set out below, the petition
for review is DENIED.
I.
We have jurisdiction to decide this appeal pursuant to 8 U.S.C.
§ 1252(b). 1 Our review encompasses both “the BIA’s decision and . . . the IJ’s
decision to the extent that it influenced the BIA.” 2
II.
A.
Both the Attorney General and the Secretary of Homeland Security have
the authority to grant asylum to aliens who possess a well-founded fear that,
if returned to their country of nationality, they will be persecuted on account
of race, religion, nationality, membership in a particular social group, or
political opinion. 3 A “well-founded fear” is both subjectively genuine and
objectively reasonable. 4
Petitioner claims to possess a well-founded fear that, if returned to El
Salvador, she will be persecuted by: (1) Rene Menjivar Garcia, and (2) Antonio
Campos. We address each potential persecutor separately and in turn.
1.
Petitioner raises two arguments as to Menjivar, who is an El-
Salvadorian gang-member, who assaulted Petitioner and her mother in
September 2013, and who extorted Petitioner’s mother for approximately nine
months thereafter.
First, Petitioner asserts that the BIA erroneously relied upon Castillo-
Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012), and Thuri v. Ashcroft,
1 See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
2 Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009).
3 See 8 U.S.C. §1158(b)(1)(A) (referring to 8 U.S.C. § 1101(a)(42)(A)).
4 See Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012); Eduard v.
Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004).
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380 F.3d 788, 792—93 (5th Cir. 2004), to hold that the “nuclear family” does
not constitute a cognizable “social group.” This assertion finds no basis in law
or fact. The BIA cited Castillo-Enriquez and Thuri for the proposition that a
“gang member’s demands for money reflect[] his pursuit of a criminal purpose,
which is not a protected ground for asylum.” That is an accurate reflection of
our holdings in Castillo-Enriquez and Thuri, and the BIA was bound to apply
our precedent in this case. 5
Second, Petitioner asserts that the BIA erred in failing “to consider the
uncontroverted evidence that Petitioner’s mother had been assaulted before
fleeing . . . El Salvador.” Neither we nor the BIA has ever held that an alien
can seek asylum based upon the alleged past-persecution of another. Yet
Petitioner apparently believes that if she can establish that her mother was
the victim of past-persecution, that past-persecution can be imputed to her
based upon the fact that she and her mother are a part of the same immediate
family, which the BIA has held “may constitute a particular social group.” 6
Petitioner’s reasoning is flawed. The alleged past-persecution of
Petitioner’s mother cannot be imputed to Petitioner. The only assault relevant
to Petitioner’s asylum application is the assault that Menjivar inflicted upon
Petitioner. And the facts surrounding that assault are undisputed.
Menjivar’s assault of Petitioner was an isolated, verbal threat of future
violence. When presented with evidence of past-persecution, we infer a well-
founded fear of future persecution. 7 The BIA held that Menjivar’s assault of
Petitioner did not rise to the level of past-persecution. Whether a prior assault
5 See Matter of Singh, 25 I. & N. Dec. 670, 672 (BIA 2012) (noting that the BIA applies
the law of the circuit in which the case arises).
6 See Matter of L-E-A-, Respondent, 27 I. & N. Dec. 40, 42 (BIA 2017).
7 See 8 C.F.R. § 1208.13(b)(1).
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rises to the level of past-persecution is a question of law that we review de
novo. 8
Persecution is the “infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as offensive . . . , [and] in
a manner condemned by civilized governments. The harm or suffering need not
be physical,” 9 but the persecutor must be said to have engaged in “extreme
conduct.” 10 Examples of persecution include, but are not limited to, “threats to
life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.” 11
Petitioner’s receipt of a “single threat . . . does not constitute past
persecution.” 12 “Persecution . . . is an extreme concept that does not include
every sort of treatment our society regards as offensive.” 13 To that end,
persecution generally “requires more than a few isolated incidents of verbal
harassment or intimidation.” 14
Accordingly, we affirm the BIA’s holding that Menjivar has not instilled
in Petitioner a well-founded fear of persecution.
2.
Petitioner raises one argument as to Campos, who is the ex-boyfriend of
Petitioner’s mother (“Morales”). Morales testified that Campos was devastated
when she broke up with him, and threatened to “take out” his anger on
Petitioner. Specifically, Morales recalled repeated conversations in which
8 See Rui Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011)
9 Abdel-Masieh v. U.S. I.N.S., 73 F.3d 579, 583 (5th Cir. 1996) (internal quotations
omitted).
10 Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006).
11 Fei Mei Cheng v. Attorney Gen. of U.S., 623 F.3d 175, 192 (3d Cir. 2010) (internal
quotations omitted).
12 Li v. I.N.S., 33 F. App'x 353, 354 (9th Cir. 2002) (unpublished).
13 Fei Mei Cheng, 623 F.3d at 192.
14 Mikhailevitch v. I.N.S., 146 F.3d 384, 390 (6th Cir. 1998).
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Campos described Petitioner as “very pretty, that she was growing up fast, and
that . . . if I did not want to be with him, that for me to be careful because he
might abuse her.”
The IJ found Morales’s testimony not “entirely credible,” based upon the
fact that Morales did not mention Campos in the asylum application that she
prepared for Petitioner. The IJ went on to write that “[e]ven if I were to
consider [Morales’s testimony credible], which I do not, the record does not
reflect that” Campos ever persecuted Petitioner.
The BIA affirmed, in part, because the IJ’s “adverse credibility finding
[was] not clearly erroneous” and “[w]ithout credible testimony, [Petitioner]
cannot establish” that Compos subjected her to past-persecution. Credibility
determinations are factual findings that we review for substantial evidence. 15
This deferential standard requires us to affirm unless it is clear, “from the
totality of the circumstances, . . . that no reasonable fact-finder could make
such an adverse credibility ruling.” 16
Petitioner raises, in this Court, the same argument that she raised
before the IJ and before the BIA: that Morales failed to mention Campos in
Petitioner’s asylum application because she was, at the time, entirely focused
on the threat posed by Menjivar. 17 This argument, even accepted as true, does
not warrant our reversal. Neither an IJ nor the BIA is required to accept a
petitioner’s “explanation for [the] plain inconsistencies in her story.” 18 And
“[t]his is not a situation where Petitioner[] failed to remember non-material,
15 Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007).
16 Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotations omitted).
17 Petitioner also asserts that the IJ failed to appreciate the “confusing, overwhelming,
and intimidating” nature of Morales’s initial interview. Pet. Br. at 19. However, Petitioner
has failed to explain how the conditions surrounding Morales’s initial interview impacted
what was ultimately written on Petitioner’s asylum application.
18 Zeqiri v. Mukasey, 529 F.3d 364, 371 (7th Cir. 2008) (internal quotations omitted).
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trivial details that [are] only incidentally related to [her] claim of
persecution.” 19 Petitioner’s asylum application fails to mention half of the
reason that she claims to possess a well-founded fear of persecution. This
omission, in and of itself, justifies the BIA’s refusal to overturn the IJ’s adverse
credibility determination.
Accordingly, we affirm the BIA’s holding that Campos has not instilled
in Petitioner a well-founded fear of persecution.
B.
Pursuant to the Immigration and Nationality Act (“INA”), the Attorney
General may not remove an alien to a country in which there is a clear
probability that the alien’s life or freedom will be threatened based upon the
alien’s race, religion, nationality, membership in a particular social group, or
political opinion. 20 This standard “is even higher than the standard for
asylum.” 21 Moreover, an alien who is ineligible for asylum is not entitled to
withholding of removal pursuant to the INA. 22
Accordingly, because we affirm the BIA’s holding that Petitioner is
ineligible for asylum, we also affirm the BIA’s holding that Petitioner is not
entitled to withholding of removal pursuant to the INA.
C.
Pursuant to the United Nations Convention Against Torture (“CAT”),
which “became binding on the United States in November of 1994,” 23 the
United States may not remove an alien to a country in which the alien is more
19 Kin v. Holder, 595 F.3d 1050, 1057 (9th Cir. 2010).
20 Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); see also 8 C.F.R. § 208.16(b);
8 U.S.C. § 1231(b)(3).
21 Orellana-Monson, 685 F.3d at 518.
22 See id.
23 See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003).
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likely than not to be tortured. 24 “Torture is defined as any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a
person” by a public official, at the instigation of a public official, with the
consent of a public official, or with the acquiescence of a public official. 25
The IJ denied Petitioner’s request for withholding of removal pursuant
to CAT, and the BIA affirmed. Specifically, the BIA held that Petitioner has
not demonstrated that she will more likely than not be tortured “by, or with
the acquiescence of, a public official” in El Salvador.
Petitioner argues that there is another “permissible view of the evidence”
and for that reason, we should reverse. We, however, review “[t]he BIA’s
conclusion that an alien is not eligible for withholding of removal . . . under . . .
CAT . . . for substantial evidence.” 26 And “[u]nder the substantial evidence
standard, reversal is improper unless” the evidence both supports and compels
a contrary result. 27
The evidence in this case does not compel a contrary result. Petitioner
has not presented any evidence that: (1) she will “more likely than not . . . be
tortured upon [her] return to” El Salvador, and (2) any such torture will involve
“sufficient state action.” 28 Petitioner’s presentation of various news articles
and reports describing El Salvador as particularly dangerous for unnamed
women and children warrants our “sympathy,” but the allegations contained
24 See Xiao Fei Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (citing 8 C.F.R. §
1208.16(c)(4)); see also 8 C.F.R. § 1208.16(d)(2) (recognizing an exception for those “convicted
of a particularly serious crime”);
25 See Roy v. Ashcroft, 389 F.3d 132, 140 (5th Cir. 2004) (quoting 8 C.F.R. §
208.18(a)(1)); see also Efe, 293 F.3d at 906–07 (noting that although an alien seeking relief
pursuant to CAT must meet a “higher [evidentiary] bar” than an alien seeking asylum, the
two claims are “separate . . . and should receive separate analytical attention”).
26 See Barbosa-Ferreira v. Holder, 526 F. App'x 411, 413 (5th Cir. 2013) (unpublished).
27 Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
28 Iruegas-Valdez v. Yates, 846 F.3d 806, 812 (5th Cir. 2017) (quoting Garcia, 756 F.3d
at 891).
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in those articles and reports are too general to warrant “relief under the
Convention Against Torture.” 29 Petitioner has not presented any evidence that
any public official in El Salvador knows who she is or would be willing to
acquiesce in her torture. Petitioner’s assertion that she – specifically – will
more likely than not be tortured “rests wholly upon surmise and speculation.” 30
Accordingly, we affirm the BIA’s holding that Petitioner is not entitled
to withholding of removal pursuant to CAT.
III.
The petition for review is DENIED. 31
29 See Tamara-Gomez v. Gonzales, 447 F.3d 343, 351—52 (5th Cir. 2006).
30 See Montgomery-Ward & Co. v. Sewell, 205 F.2d 463, 468 (5th Cir. 1953) (describing
a plaintiff’s burden under the preponderance of the evidence standard).
31 Petitioner’s motion to hold this appeal in abeyance is also DENIED. In Matter of L-
E-A-, Respondent, the BIA held that the immediate family “may constitute a particular social
group.” 27 I. & N. Dec. at 42. This is a question that we have not addressed, see Ramirez-
Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015) (“The IJ concluded that Ramirez–Mejia's
family did not meet the ‘particularity’ and ‘social visibility’ requirements of a ‘particular
social group.’ It also concluded that she did not establish that she was persecuted ‘on account
of’ her membership in her family. The BIA affirmed based on the latter rationale and declined
to address whether Ramirez–Mejia's family constituted a ‘particular social group.’ We agree
with that conclusion and likewise do not address whether her family was a particular social
group.”), and need not address where, as here, Petitioner has not demonstrated that she
possesses a well-founded fear of persecution irrespective of social group, see supra pp. 2—5.
8