JOHANA DEL CARMEN HERRERA MORALES, also known as Johana del Carmen, Petitioner
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent
for Review of an Order of the Board of Immigration Appeals
DAVIS, JONES, and SOUTHWICK, Circuit Judges.
EUGENE DAVIS, Circuit Judge:
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.
jurisdiction to decide this appeal pursuant to 8 U.S.C.
§ 1252(b). Our review encompasses both "the
BIA's decision and . . . the IJ's decision to the
extent that it influenced the BIA."
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. A "well-founded fear"
is both subjectively genuine and objectively
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.
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.
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.
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."
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.
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. 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
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, " but the persecutor must be said to have
engaged in "extreme conduct." 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
receipt of a "single threat . . . does not constitute
past persecution." "Persecution . . . is an extreme
concept that does not include every sort of treatment our
society regards as offensive." To that end, persecution
generally "requires more than a few isolated incidents
of verbal harassment or intimidation."
we affirm the BIA's holding that Menjivar has not
instilled in ...