Garcia Rojas v. Garland

Case: 19-60602 Document: 00515790662 Page: 1 Date Filed: 03/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60602 March 22, 2021
Summary Calendar Lyle W. Cayce
Clerk
Yasiel Garcia Rojas,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 895 129
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Yasiel Garcia Rojas, a native and citizen of Cuba, petitions for review
of an order by the Board of Immigration Appeals (BIA) dismissing his appeal
from the denial of his application for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT).
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60602
In the petition for review, he presents claims that pertain only to
asylum, withholding of removal, and a violation of his right to due process.
Therefore, he has abandoned any challenge to the BIA’s determination that
he was not eligible for protection under the CAT. See Chambers v. Mukasey,
520 F.3d 445, 448 n.1 (5th Cir. 2008). Moreover, to the extent that Garcia
Rojas argues that he has a well-founded fear of future persecution based on
his membership in the particular social group of “opponents,” this claim has
not been exhausted, and therefore we lack jurisdiction to address it. See 8
U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d
220, 224 (5th Cir. 2018). Factual findings are reviewed for substantial
evidence and legal determinations are reviewed de novo. Lopez-Gomez
v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
To establish eligibility for asylum, an applicant must prove that he is
unwilling or unable to return to his home 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.” Sharma
v. Holder, 729 F.3d 407, 411 (5th Cir. 2013) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). The burden is on the applicant to present “specific,
detailed facts” to demonstrate past persecution or a well-founded fear of
future persecution. Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir.
2012) (quoting Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir. 1994)).
Persecution is not mere harassment or discrimination, and instead “is
a specific term that ‘does not encompass all treatment that our society
regards as unfair, unjust, or even unlawful or unconstitutional.’” Gjetani v.
Barr, 968 F.3d 393, 397 (5th Cir. 2020) (quoting Majd v. Gonzales, 446 F.3d
590, 595 (5th Cir. 2006)). While Garcia Rojas argues that he suffered
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persecution when he was detained by Cuban authorities for 72 hours and
when his restaurant was forcibly closed, these incidents are not extreme
enough to compel a finding of persecution. Although he was detained for 72
hours and he was questioned every two to three hours, this fails to rise to the
level of physical persecution because he was not physically injured in any
way. See Tesfamichael v. Gonzales, 469 F.3d 109, 117 (5th Cir. 2006).
Moreover, the economic hardship that that Garcia Rojas suffered because he
was forced to close his restaurant is not severe enough to constitute
persecution when he was able to find other work, and was eventually able to
acquire another restaurant license, in the past. See Eduard v. Ashcroft, 379
F.3d 182, 187 (5th Cir. 2004) (quoting Abdel-Masieh v. I.N.S., 73 F.3d 579,
583 (5th Cir. 1996)). Accordingly, there is no basis to overturn the BIA’s
determination that Garcia Rojas failed to demonstrate past persecution.
To demonstrate a well-founded fear of future persecution, an
applicant must demonstrate “a subjective fear of persecution, and that fear
must be objectively reasonable.” Gjetani, 968 F.3d at 399 (quoting Eduard,
379 F.3d at 189). Garcia Rojas has failed to demonstrate that his fear of
persecution based on his political opinion is objectively reasonable because
his wife, children, parents, and siblings still live in Cuba. See Gonzalez-Soto v.
Lynch, 841 F.3d 682, 683–84 (5th Cir. 2016). Moreover, although he asserts
that he will be targeted by the Cuban government because of his political
opinion, he has offered no evidence that he is politically active. In fact, he
testified that while he does not agree with the Cuban system, he is not
interested in politics. Finally, his fear of punishment for violating Cuba’s
travel restrictions is not a fear of persecution, but of prosecution, because no
evidence has been offered showing that the punishment was motivated
because of a protected ground. See Tesfamichael, 469 F.3d at 117.
Accordingly, substantial evidence supports the BIA’s determination that
Garcia Rojas did not have a well-founded fear of future persecution.
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Because Garcia Rojas “failed to establish the less stringent ‘well-
founded fear’ standard of proof required for asylum relief,” he cannot meet
the more stringent burden for obtaining withholding of removal. See Dayo
v. Holder, 687 F.3d 653, 658–59 (5th Cir. 2012) (quoting Anim v. Mukasey,
535 F.3d 243, 253 (4th Cir. 2008)).
When considering a petition for review, we review due process claims
de novo. Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020). To
prevail on a due process claim raised in removal proceedings, “an alien must
make an initial showing of substantial prejudice by making ‘a prima facie
showing that the alleged violation affected the outcome of the proceeding.’”
Arteaga-Ramirez v. Barr, 954 F.3d 812, 813 (5th Cir. 2020) (quoting Okpala
v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018)).
Garcia Rojas argues that his due process rights were violated because
he was unable to properly communicate with the immigration judge or the
interpreter, the interpreter translated poorly and inadequately, and the
presence of immigration officers in the room prevented him from fully
engaging with the court. But he has failed to identify any specific instances
where he did not understand the judge or interpreter, where the translator
mistranslated a statement, or where the immigration officials made him feel
uncomfortable. In any event, his assertions are not supported by the record
because he answered all the immigration judge’s questions, he did not ask the
immigration judge or counsel for the Department of Homeland Security to
repeat themselves, and he never expressed concern with the interpreter’s
translations. Because Garcia Rojas has failed to establish that he was
precluded from meaningfully presenting his case, he has failed to
demonstrate a due process violation. See Okpala, 908 F.3d at 971.
For these reasons, the petition for review is DENIED.
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