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Morales v. Sessions

United States Court of Appeals, Fifth Circuit

June 27, 2017

JOHANA DEL CARMEN HERRERA MORALES, also known as Johana del Carmen, Petitioner

         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 review asking us to reverse the BIA. For the reasons set out below, the petition for review is DENIED.


         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]



         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.


         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, 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 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 ...

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