Filed: Sep. 17, 2020
Latest Update: Sep. 17, 2020
Summary: Case: 18-60813 Document: 00515568517 Page: 1 Date Filed: 09/17/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 17, 2020 No. 18-60813 Lyle W. Cayce Clerk Luz Del Socorro Cerritos-Quintanilla; Wilmer Arnoldo Gomez-Cerritos, Petitioners, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals BIA No. A206-797-134 BIA No. A206-797-135 Before Higginbotham, Elr
Summary: Case: 18-60813 Document: 00515568517 Page: 1 Date Filed: 09/17/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 17, 2020 No. 18-60813 Lyle W. Cayce Clerk Luz Del Socorro Cerritos-Quintanilla; Wilmer Arnoldo Gomez-Cerritos, Petitioners, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals BIA No. A206-797-134 BIA No. A206-797-135 Before Higginbotham, Elro..
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Case: 18-60813 Document: 00515568517 Page: 1 Date Filed: 09/17/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 17, 2020
No. 18-60813 Lyle W. Cayce
Clerk
Luz Del Socorro Cerritos-Quintanilla; Wilmer
Arnoldo Gomez-Cerritos,
Petitioners,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A206-797-134
BIA No. A206-797-135
Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Petitioners Luz Del Socorro Cerritos-Quintanilla and her son, Wilmer
Arnoldo Gomez-Cerritos, natives and citizens of El Salvador, petition this
court to review the decision of the Board of Immigration Appeals, which
affirmed the order of the immigration judge denying their request for asylum
*
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opinion should not be published and is not precedent except under the limited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: 18-60813 Document: 00515568517 Page: 2 Date Filed: 09/17/2020
No. 18-60813
and withholding of removal. Because there is not substantial evidence to
compel the conclusion that Cerritos-Quintanilla’s family status was one
central reason for her alleged present or future persecution, we DENY
Cerritos-Quintanilla and Gomez-Cerritos’s petition for review.
I.
In 2014, petitioner Luz Del Socorro Cerritos-Quintanilla and her
then-minor son, Wilmer Arnoldo Gomez-Cerritos, natives and citizens of El
Salvador, received notices to appear issued by the U.S. Department of
Homeland Security. The Department charged them with entering the
United States without being admitted or paroled. They admitted the
allegations and conceded the charges against them. Cerritos-Quintanilla
applied for asylum and withholding of removal, and she included Gomez-
Cerritos as part of her application. See 8 U.S.C. § 1158(b)(3)(A) (“A spouse
or child . . . of an alien who is granted asylum under this subsection may . . .
be granted the same status as the alien if accompanying . . . such alien”). In
her application, Cerritos-Quintanilla alleged that she left El Salvador because
the “gangs” threatened her and her son if they did not pay them money. She
later clarified in briefing that she was referring to the “transnational criminal
gang syndicate known as the Mara Salvatrucha,” also known as “MS-13.”
Cerritos-Quintanilla testified that MS-13 told Gomez-Cerritos on two
occasions that if he did not join or pay the gang, he would be killed. Cerritos-
Quintanilla further testified that the gang told her on two occasions that if
Gomez-Cerritos did not join the gang, she would be killed. According to
Cerritos-Quintanilla, she did not report the threats to police due to fear of
retaliation. Her daughter, Fatima, remains in the same town in El Salvador
where Cerritos-Quintanilla previously lived. Gomez-Cerritos did not testify
because his counsel and the Department stipulated that his testimony would
be identical to that of Cerritos-Quintanilla.
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No. 18-60813
At the hearing, Cerritos-Quintanilla’s counsel argued that the basis of
her asylum and withholding of removal applications was persecution by
threats as a member of a particular social group—specifically, the immediate
family of her son, Gomez-Cerritos, “consisting of his mother and his . . .
brother and sisters.” The Department countered that Cerritos-Quintanilla’s
application was “simply not based on a protected ground.”
Although the immigration judge found Cerritos-Quintanilla to be a
credible witness, she denied her request for relief. According to the
immigration judge, the threats that Cerritos-Quintanilla and Gomez-Cerritos
received did not rise to the level of persecution because “[d]iscrimination or
a few isolated incidents of harassment or intimidation unaccompanied by
physical punishment, infliction of harm or significant deprivation of liberty is
not persecution.” Thus, she failed to establish a claim of asylum based on
past persecution.
Cerritos-Quintanilla also, according to the immigration judge, failed
to establish a well-founded fear of future persecution based on a protected
ground because her family membership was “not at least one central reason”
that she and Gomez-Cerritos were threatened. For purposes of her ruling,
the immigration judge assumed that Cerritos-Quintanilla’s family
membership constituted a particular social group. The immigration judge
further noted that “gang recruitment or general resistance to joining a gang
is not a sufficient characteristic to establish [Cerritos-Quintanilla] or a person
as a member of a particular social group.” Overall, the immigration judge
found that “any violence, extortion or harassment suffered by [Cerritos-
Quintanilla and Gomez-Cerritos] stemmed from criminal motives rather
than any political persecution.” The immigration judge did not analyze
whether Cerritos-Quintanilla’s fear of future persecution was objectively or
subjectively well founded.
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The immigration judge also noted that Cerritos-Quintanilla’s
daughter, Fatima, remained in El Salvador unharmed and that evidence was
lacking that the El Salvadoran government or authorities were unable or
unwilling to control the gangs. As a result, the immigration judge concluded
that Cerritos-Quintanilla had not satisfied the requirements for obtaining
asylum, and thus she also had not met the higher burden of obtaining
withholding of removal.
The Board of Immigration Appeals dismissed her appeal, determining
that she was not eligible for asylum or withholding of removal because
“[n]either extortion nor resistance to gang recruitment is a basis for asylum.”
Furthermore, the Board held that Cerritos-Quintanilla did not establish a fear
of persecution on account of membership in a group because “targeting
family members as a means to an end is not sufficient to establish a claim.”
II.
We review the Board of Immigration Appeal’s decision on a
substantial-evidence standard, meaning that we may not reverse the factual
findings of the Board unless the evidence compels it. Zhang v. Gonzales, 432
F.3d 339, 343-44 (5th Cir. 2005). That is, the evidence must be “so
compelling that no reasonable factfinder could conclude against it.” Wang v.
Holder,
569 F.3d 531, 537 (5th Cir. 2009).
“Generally, we review only the final decision of the” Board. Sealed
Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). However,
we include in our review the immigration judge’s decision when it affects the
Board’s decision. Pena Oseguera v. Barr,
936 F.3d 249, 250 (5th Cir. 2019).
Here the Board adopted “the reasons provided in the [immigration judge’s]
decision,” and so we review both decisions.
Cerritos-Quintanilla challenges two factual findings of the Board and
the immigration judge: (1) that Cerritos-Quintanilla did not suffer past
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persecution; and (2) that Cerritos-Quintanilla’s fear of a future persecution
was not “on account of” her being a member of her son’s family. Cerritos-
Quintanilla, however, has not demonstrated that the evidence is so
compelling that either of these factual findings is unreasonable.
Cerritos-Quintanilla’s argument that she has suffered past
persecution centers around MS-13’s efforts to recruit Gomez-Cerritos by
threatening her, but these threats do not rise to the level of persecution that
would merit either asylum or cancellation of removal. “Persecution cannot
be based on ‘mere denigration, harassment, and threats.’” Tesfamichael v.
Gonzales, 469 F.3d 109, 116 (5th Cir. 2006). Cerritos-Quintanilla does not
allege that MS-13’s death threats were accompanied by violence, and,
without something more, the evidence does not compel the conclusion that
Cerritos-Quintanilla has suffered persecution. Trochez Castellanos v. Barr,
816 Fed. Appx. 929, 933 (5th Cir. 2020).
Furthermore, this case simply does not implicate an issue of conflation
like the one we addressed in Pena Oseguera. See 936 F.3d at 251. Cerritos-
Quintanilla is the primary asylum applicant, and she included her son
Gomez-Cerritos as part of her application. 8 U.S.C. § 1158(b)(3)(A). As a
result, Cerritos-Quintanilla and Gomez-Cerritos’s applications for asylum
and cancellation of removal, as well as their appeals, both rise and fall on
Cerritos-Quintanilla’s eligibility for asylum. MS-13’s reasons for threatening
Gomez-Cerritos must not be conflated with its reasons for threatening
Cerritos-Quintanilla. Cf. Pena
Oseguera, 936 F.3d at 251. They have not been
conflated in this case. Counsel for Cerritos-Quintanilla explicitly recognized
this point in oral argument, saying “we are also not claiming anything like
Pena-Oseguera that there was a conflation of facts between the mother and
the son.”
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Unfulfilled death threats, nevertheless, also raise the issue of future
persecution. Cf. Trochez Castellanos, 816 Fed. Appx. at 933–34. To prove a
well-founded fear of future persecution, an applicant must show “(1) a
subjectively genuine and objectively reasonable fear of persecution that is (2)
on account of a protected ground.” See Zhao v. Gonzales,
404 F.3d 295, 307
(5th Cir. 2005); 8 C.F.R. 1208.13. In her brief, Cerritos-Quintanilla identifies
the relevant protected ground as “membership in a particular social group”
consisting of the “immediate family members of Wilmer Gomez[-
]Cerritos,” her son. For purposes of argument, we assume, without
deciding, that a nuclear family can be a social group for purposes of asylum
applications.
The immigration judge concluded that Cerritos-Quintanilla “failed to
demonstrate or establish that there is a requisite nexus between any
persecution, past or future, and a protected ground.” The evidence does not
compel a contrary conclusion, especially considering the situation of
Cerritos-Quintanilla’s family remaining in El Salvador. The record indicates
that Cerritos-Quintanilla’s daughter still lives in El Salvador in the same
town where Cerritos-Quintanilla and her son were threatened by MS-13. In
a letter filed under Federal Rule of Appellate Procedure 28(j), Cerritos-
Quintanilla urges us to consider the circumstances in Gonzalez Ruano v. Barr
to determine that Cerritos-Quintanilla’s membership in her son’s family is
“one central reason” for her fear of future persecution. 922 F.3d 347 (7th
Cir. 2019); see also Shaikh v. Holder,
588 F.3d 861, 864 (5th Cir. 2009). In
Gonzalez Ruano, the petitioner was kidnapped and tortured by gang members
after the gang leader claimed ownership of petitioner’s wife; Petitioner’s
sons were also
threatened. 922 F.3d at 349–51, 356. Petitioner, his wife, and
his sons fled to the United States.
Id. at 351. Petitioner’s sister did not leave
the country, and, in the five months after Petitioner fled, she was approached
twenty times by unknown men asking about Petitioner’s location.
Id.
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While the facts of Gonzalez Ruano and this case share loose
similarities—in each instance, the petitioner’s alleged persecution arose
from a gang’s interest in a family member, and some family remained in the
home country following the petitioner’s flight—Cerritos-Quintanilla’s
situation lacks evidence that would compel a finding that the alleged
persecution is “on account of” her membership in a family. There is no
evidence in the record that any family members other than Cerritos-
Quintanilla were threatened. There is no evidence that the daughter
remaining in El Salvador has been harmed, threatened, or even approached
by MS-13 members there.
Our precedent binds us to a deferential review of the Board’s factual
determinations. Zhang, 432 F.3d at 343-44. To reverse the Board on an issue
of fact, the evidence must be “so compelling that no reasonable factfinder
could conclude against it;” reasonable disagreement as to the result simply
will not suffice.
Wang, 569 F.3d at 536–37. Absent from the record is
evidence sufficient to compel the conclusion that “one central reason”
Cerritos-Quintanilla received death threats from MS-13 is that she is part of
Gomez-Cerritos’s family. See 8 U.S.C. § 1158(b)(1)(B)(i). The lack of
evidence of others in Gomez-Cerritos’s family being similarly threatened
subjects that conclusion to reasonable disagreement and prevents us from
disturbing the Board’s decision denying the application for asylum.
Because Cerritos-Quintanilla failed to meet her burden for
establishing eligibility for asylum, she also failed to meet her burden for
cancellation of removal. As the immigration judge correctly noted, the “clear
probability” standard for cancellation or removal is higher than the well-
founded fear” standard for eligibility for asylum. Efe v. Ashcroft, 293 F.3d
899, 906 (5th Cir. 2002). Failure to meet the lower standard for asylum
eligibility necessarily means failure to meet the higher standard for
cancellation or removal.
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Cerritos-Quintanilla and Gomez-Cerritos’s petition for review is
DENIED.
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