Edras Ordonez-Mejia v. Jefferson Sessions, III

Case: 17-60213 Document: 00514573978 Page: 1 Date Filed: 07/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60213 July 27, 2018
Summary Calendar
Lyle W. Cayce
Clerk
EDRAS ORDONEZ-MEJIA, also known as Edras Ordenez-Majia,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 224 880
Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Edras Ordonez-Mejia, a native and citizen of Guatemala, petitions for
review of a decision by the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ) denial of his applications for withholding
of removal and protection under the Convention Against Torture (CAT).
Ordonez-Mejia argues that (1) the BIA and IJ improperly excluded the
testimony of his expert witness by concluding that the testimony was hearsay
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-60213
and by making an adverse credibility determination, (2) the record established
a clear probability of persecution and demonstrated that he could not safely
relocate within Guatemala, and (3) the record established a clear probability
of torture upon return to Guatemala. Additionally, Ordonez-Mejia moves for
a stay of removal.
Generally, we have authority to review only the decision of the BIA but
will consider the IJ’s decision if it influenced the determination of the BIA.
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Because the BIA agreed
with the IJ’s findings and conclusions, the IJ’s findings are reviewable. See Efe
v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Findings of fact are reviewed for
substantial evidence and rulings of law are reviewed de novo. Zhu, 493 F.3d
at 594. Under the substantial evidence standard, the immigration decision
must be based upon the evidence presented and must be “substantially
reasonable.” Kane v. Holder, 581 F.3d 231, 236 (5th Cir. 2009) (internal
quotation marks and citation omitted).
Contrary to Ordonez-Mejia’s assertions, the IJ neither excluded the
expert witness’s testimony nor made an adverse credibility determination. The
IJ expressly accepted some of the expert witness’s testimony. However, the IJ
rejected the expert’s testimony that the gang Ordonez-Mejia feared had
recently been to his abandoned family home in Guatemala looking for family
members. The IJ concluded that the testimony was simply too tenuous and
speculative because it was not based on first-hand knowledge; instead, the
expert had gotten the information from Guatemalan police officers who had
gotten their information from Ordonez-Mejia’s former neighbors. As the BIA
noted, it was within the purview of the IJ to make any credibility
determinations and to accord the appropriate weight to be given to the
evidence and testimony presented, including hearsay. See Castillo-Lopez v.
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I.N.S., 437 F.2d 74, 75 (5th Cir. 1971). Aside from his conclusional assertion
that the BIA erred in affording diminished weight to the hearsay evidence,
Ordonez-Mejia does not provide any relevant case law to challenge the
determination regarding the proper weight of the evidence.
A grant of withholding of removal requires the demonstration of “‘a clear
probability’ of persecution upon return” to the petitioner’s native country. Roy
v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). A petitioner cannot establish a
well-founded fear of persecution if persecution could be avoided by relocating
to another part of his native country and, under the circumstances, it would be
reasonable to expect him to relocate. See Eduard v. Ashcroft, 379 F.3d 182,
194 (5th Cir. 2004); 8 C.F.R. § 1208.13(b)(2)(ii); see also Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001) (holding that where a petitioner
does not show past persecution and does not show that the national
government is the actual persecutor, the petitioner must show that the
persecution is pervasive and that relocation would be unreasonable).
The record reveals that the BIA’s denial of Ordonez-Mejia’s application
for withholding of removal based on his ability to relocate was “substantially
reasonable,” see Kane, 581 F.3d at 236, because testimony revealed that many
of his family members had remained unharmed in Guatemala. In particular,
the brother who set off the chain of events placing the Ordonez-Mejia family
on the gang’s radar had previously been deported from the United States and
had successfully relocated within Guatemala without being harmed. We
decline to address the issue of whether Ordonez-Mejia demonstrated a clear
probability of persecution because the BIA did not reach this issue. See INS v.
Bagamasbad, 429 U.S. 24, 25-26 (1976) (noting that generally, courts and
agencies are not required to make findings on issues the decision of which is
not necessary to the results reached).
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In order to obtain relief under the CAT, an alien has the burden of
demonstrating “that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.” Chen v. Gonzales, 470 F.3d
1131, 1139 (5th Cir. 2006) (citing 8 C.F.R. § 208.16(c)(2)) (emphasis in the
original). The CAT defines torture as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . .
by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). Ordonez-
Mejia does not provide any evidence to refute the determination that despite
evidence that the Guatemalan government might turn a blind eye to any
torture inflicted by the gang in question, there was no evidence that this was
a probability rather than a mere possibility, particularly given that Ordonez-
Mejia’s family had remained in Guatemala and had gone unharmed. See Kane,
581 F.3d at 236; Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir.
2006)
Ordonez-Mejia has not demonstrated that the evidence compels reversal
of the BIA’s conclusion that he was not entitled to withholding of removal or
protection under the CAT. See Chen, 470 F.3d at 1134. Accordingly, Ordonez-
Mejia’s petition for review is DENIED. His motion for a stay of removal is,
likewise, DENIED as moot. See Bolvito v. Mukasey, 527 F.3d 428, 438-39 (5th
Cir. 2008).
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