Elsa Cornejo-Bonilla v. William Barr, U. S.

Case: 18-60443 Document: 00515203028 Page: 1 Date Filed: 11/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60443 November 18, 2019
Summary Calendar
Lyle W. Cayce
Clerk
ELSA MARISOL CORNEJO-BONILLA; JEYMI JOHANA SANTAMARIA-
CORNEJO,
Petitioners
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of Orders of the
Board of Immigration Appeals
BIA Nos. A208 537 326; A208 537 325
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Petitioners Elsa Marisol Cornejo-Bonilla and her daughter, Jeymi
Johana Santamaria-Cornejo, seek review of the Board of Immigration Appeals’
(BIA) summary affirmance of an Immigration Judge’s (IJ) opinion that
Petitioners did not qualify for asylum or withholding of removal. The issue of
statutory exhaustion is close, but we find jurisdiction and DENY the petition.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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The IJ found that Petitioners, a mother-daughter pair from El Salvador,
failed to establish past persecution or a well-founded fear of future persecution
on account of their membership in a particular social group. Their claim was
that MS 13 gang members repeatedly threatened then-16 year old Jeymi if she
refused to become the “girlfriend” of one of them and after two months,
threatened the mother as well. Further, when Cornejo-Bonilla approached the
police about this harassment, official help was denied. After the adverse IJ
ruling, Petitioners filed a notice of appeal with the BIA, stating:
The [IJ] erred in denying respondent’s application for Asylum
pursuant to INA sec. 208 and respondent’s request for
Withholding of Removal pursuant to INA sec. 241(b)(3).
Respondent through her written application and credible
testimony demonstrated that she suffered past persecution on
account of her membership in a particular social group which she
properly defined as “mother’s and daughter’s unable to escape
threats from gang members.”
Although the notice of appeal also indicated that Petitioners intended to file a
separate brief or statement in support of their appeal, they did not do so. 1
Instead, Petitioners requested an extension of the filing deadline on the date
the brief was due. The BIA did not rule on the extension request and,
approximately three months later, summarily affirmed the IJ’s decision
“without opinion” pursuant to 8 C.F.R. § 1003.1(e)(4). The IJ’s decision
therefore became the final agency determination. § 1003.1(e)(4)(ii).
Petitioners filed a timely petition for review.
1 “A petitioner seeking review of an IJ’s decision must file a notice of appeal with the BIA, see
8 C.F.R. § 1003.3(a)(1), but is not required to file a brief in support of the appeal, see 8 C.F.R.
§ 1003.38(f).” Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010). Nevertheless, the presence or
absence of a brief may affect petitioners’ rights. For example, some of our sister circuits have indicated
that issues raised in the notice of appeal but not addressed in the appellant’s brief are considered
waived and therefore not exhausted for the purposes of 8 U.S.C. § 1252(d)(1). See id. at 318 (discussing
the positions of the Third, Sixth, and Ninth Circuits).
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Petitioners contend that the BIA legally erred in affirming, without
opinion, the IJ’s determination that they failed to establish past persecution or
a well-founded fear of future persecution on account of their membership in a
particular social group. They argue that the IJ failed to consider the number
and intensity of the threats, specifically: (1) that the daily threats were not
only to recruit Jeymi, but also “because the gang wanted forced sexual
relations[,] . . . and not merely a relationship,” with Jeymi; and (2) that the
threats “were not mere harassment or discrimination . . . because they
threatened rape against [Jeymi] and death to both Petitioners if [Jeymi] did
not submit [to] the gang.” Petitioners also contend that the emotional harm
they suffered was on account of their membership in the particular social group
consisting of “mothers and daughters unable to escape threats from gang
members.” They assert that “as Salvadoran women unable to enlist the help
of police,” they shared a vulnerability that served as an immutable
characteristic of their particular social group. The Government counters that
this court lacks jurisdiction to consider these issues because Petitioners failed
to exhaust their administrative remedies.
Judicial review of a final removal order is available only where the
petitioner has exhausted all administrative remedies of right. 8 U.S.C.
§ 1252(d)(1). Because the exhaustion requirement is statutorily mandated, a
petitioner’s failure to exhaust an issue before the BIA is a jurisdictional bar to
this court’s consideration of the issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th
Cir. 2001). “An alien fails to exhaust his administrative remedies with respect
to an issue when the issue is not raised in the first instance before the BIA—
either on direct appeal or in a motion to reopen.” Id. at 452-53. To satisfy the
exhaustion requirement, the “petitioner must raise, present, or mention an
issue to the BIA” or otherwise take “some affirmative action” to present a
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“concrete statement before the BIA to which [the petitioner] could reasonably
tie [his] claims before this court.” Omari v. Holder, 562 F.3d 314, 318 (5th Cir.
2009) (internal quotation marks and citations omitted).
Although we conclude that Petitioners exhausted their administrative
remedies in this case, it is a close call. We have found that an issue was
adequately exhausted when raised before the BIA “in a less developed form,”
Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206 (5th Cir. 2007), and we
have held that general claims can encompass more specific claims. Burke v.
Mukasey, 509 F.3d 695, 696 (5th Cir. 2007). Likewise, “subsequent variations
in analysis or changes in the scope of an argument do not render an issue
unexhausted.” Vasquez v. Sessions, 885 F.3d 862, 868 (5th Cir.), cert. denied,
138 S. Ct. 2697 (2018). Nevertheless, conclusory statements are insufficient to
raise an issue before the BIA, thereby exhausting administrative remedies.
See Townsend v. INS, 799 F.2d 179, 181-82 (5th Cir. 1986) (holding that the
petitioner’s conclusory statement that he had “sufficiently established his well
founded fear of persecution according to present case law” was inadequate to
preserve his asylum claim for the BIA’s review).
Petitioners’ notice of appeal to the BIA only marginally rises above the
level of a conclusory statement. It at least provides the grounds on which
Petitioners believe the IJ erred and states the group in which they claim
membership. Arguably, the notice of appeal raised issues about whether the
threats rose to the level of persecution; whether the purported particular social
group was legally cognizable; and whether the harm they claim to have
suffered was on account of their membership in that particular social group.
Petitioners did not, however, address the immutability, particularity, or social
distinction of their purported particular social group before either the IJ or BIA
and rely wholly on its identification in the notice of appeal. That the BIA
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summarily affirmed pursuant to 8 U.S.C. Sec. 1003.1(e)(4), rather than
choosing to dismiss for lack of specificity or failing to file a brief,
Secs. 1003.1(d)(2)(i)(A), (E), seems to indicate the Board’s rejection of their
claims on the merits. Consequently, we may conclude that Petitioners
exhausted their claims to the BIA.
Nevertheless, Petitioners have failed to show that the evidence compels
a conclusion contrary to that reached by the IJ. The IJ’s factual findings are
reviewed under the substantial evidence standard, and legal questions are
reviewed de novo. Rui Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011).
Under the substantial evidence standard, a petitioner must show that “the
evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion.” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)
(internal quotation marks and citation omitted). This court “appl[ies] this
standard in reviewing an IJ’s factual conclusion that an applicant is not
eligible for asylum, withholding of removal, and relief under the Convention
Against Torture.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)
(citations omitted).
To be eligible for asylum as a refugee, the applicant must show that she
is a person who is outside of her country and is unable or unwilling to return
“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)(A). The applicant must show “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.” Cabrera v. Sessions, 890 F.3d 153, 159 (5th Cir. 2018); see also
8 C.F.R. § 1208.13(b)(1)-(2).
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Persecution is the “infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as offensive . . . , in a
manner condemned by civilized governments.” Abdel-Masieh v. INS, 73 F.3d
579, 583 (5th Cir. 1996) (internal quotation marks and citation omitted).
Although the harm need not be physical, id., mere denigration, harassment,
and threats do not amount to persecution. Eduard v. Ashcroft, 379 F.3d 182,
188 (5th Cir. 2004). Cornejo-Bonilla acknowledged that she was never
threatened personally and that Jeymi was never physically harmed.
Moreover, there is some discrepancy between Cornejo-Bonillia’s
characterization of the threats against Jeymi before this court and her
portrayal before the IJ. Thus, the IJ’s determination that the threats did not
rise to the level of persecution is supported by substantial evidence and
consistent with our precedent. See, e.g., Eduard, 379 F.3d at 188 (holding that
substantial evidence supported a finding that the harm did not rise to the level
of past persecution where the petitioner had experienced harassment, threats,
and one episode of minor violence).
Petitioners also cannot establish a well-founded fear of persecution on
account of a protected ground. An asylum applicant claiming membership in
a particular social group must show that she 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, 685 F.3d at 518
(internal quotation marks and citation omitted). A particular social group is
one that has (1) “social visibility,” meaning that members of the group are
“readily identifiable in society” based on their shared characteristics and
(2) “particularity,” meaning that the group can be defined in a manner
sufficiently distinct that it “would be recognized, in the society in question, as
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a discrete class of persons.” Id. at 519 (internal quotation marks and citation
omitted).
Petitioners point to Cornejo-Bonilla’s willingness to seek out the police
despite knowing the futility of the gesture and that the police associate with
the MS-13 gang members as evidence of the particularity and social distinction
of their social group. Particularly, they argue that their shared vulnerability
as “Salvadorian women unable to enlist the help of police” is an immutable
characteristic. These conclusional and unsupported allegations are
insufficient to show that their purported group was a legally cognizable
particular social group. See Orellana-Monson, 685 F.3d at 519-522. This court
has previously declined to recognize as particular social groups various
permutations of groups of individuals who are subjected to gang violence based
on their refusal to join gangs or accede to their demands. See, e.g., Hernandez-
Abregon v. Lynch, 667 F. App’x 487, 488 (5th Cir. 2016) (individuals who were
sexually assaulted by gangs and resisted gang recruitment); Salinas-Pacheco
v. Holder, 583 F. App’x 337, 337-38 (5th Cir. 2014) (young Honduran women
targeted for refusing to join gangs). We have also rejected claims that a group
consisting of “non-criminal witnesses who have reported crimes” qualified as a
particular social group. Soriano-Dominguez v. Holder, 354 F. App’x 886, 887-
88 (5th Cir. 2009). In light of these similar cases, Petitioners have failed to
show that the evidence compels a conclusion that they had a well-founded fear
of future persecution on account of their membership in a legally cognizable
particular social group.
Finally, because Petitioners could not satisfy the requirements for an
asylum claim, it follows that they could not establish entitlement to
withholding of removal. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir.
2012).
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For these reasons, the petition for review is DENIED.
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