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Gonzales-Veliz v. Barr

United States Court of Appeals, Fifth Circuit

September 10, 2019

MARIA SUYAPA GONZALES-VELIZ, Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent.

          Petitions for Review of Orders of the Board of Immigration Appeals

          Before ELROD and WILLETT, Circuit Judges. [*]

          JENNIFER WALKER ELROD, CIRCUIT JUDGE.

         Maria Suyapa Gonzales-Veliz, a Honduran citizen, petitions for review of the denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). While her initial petition for review was pending before us, Gonzales-Veliz also filed a motion for reconsideration with the Board of Immigration Appeals (BIA), which subsequently denied reconsideration by invoking an intervening decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). Gonzales-Veliz also petitions for review of the denial of reconsideration. We deny both petitions for review.

         I.

         Gonzales-Veliz is a native and citizen of Honduras. In August 2014, Gonzales-Veliz entered the United States without inspection, was apprehended at the United States border, and was removed to Honduras under an expedited removal order. In a sworn statement, Gonzales-Veliz stated that she entered the United States "to look for employment" and that she had no fear of harm or returning to Honduras. Later in April 2015, Gonzales-Veliz once again entered the United States illegally and was apprehended. The Department of Homeland Security reinstated the 2014 removal order and sought to remove her, but this time, Gonzales-Veliz claimed that she feared returning to Honduras due to widespread gang violence there. An asylum officer referred the matter to an immigration judge (IJ).

         After hearing testimony, the IJ denied Gonzales-Veliz's application for asylum, withholding of removal, and CAT protection. Citing controlling Fifth Circuit cases, the IJ held that Gonzales-Veliz was ineligible to apply for asylum because she unlawfully reentered the United States and had her previous removal order reinstated. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015) ("[A]liens whose removal orders are reinstated may not apply for asylum."). The IJ further concluded that Gonzales-Veliz failed to demonstrate that she was harmed on account of a membership in a particular social group- Honduran women unable to leave their relationship. The IJ also determined that Gonzales-Veliz failed to demonstrate that the Honduran government was unable or unwilling to protect her because her testimony showed that the police took actions to protect her. Moreover, the IJ found her not credible. As to her application for CAT protection, the IJ found that the Honduran government would not acquiesce in torture that she was allegedly expecting at the hands of another individual with whom she had previously been in a relationship. Alternatively, the IJ denied Gonzales-Veliz CAT relief because she lacked credibility.

         Gonzales-Veliz appealed to the BIA, which dismissed the appeal. The BIA found that, even if Gonzales-Veliz was credible, she did not belong to her proffered particular social group because her own testimony showed that she was able to leave her relationship. The BIA further found that Gonzales-Veliz was not harmed on account of belonging to that group. The BIA denied Gonzales-Veliz's asylum and withholding of removal claims based on these grounds, and it did not rely on other grounds offered by the IJ in denying relief, such as the reentry bar for asylum and Gonzales-Veliz's lack of credibility. As to the IJ's denial of CAT relief, the BIA found insufficient evidence to disturb the IJ's finding that the Honduran government would not acquiesce in torture. Gonzales-Veliz petitioned for review of the BIA's denial of asylum, withholding of removal, and CAT protection.

         After filing her initial petition for review, Gonzales-Veliz also filed a motion for reconsideration before the BIA. See Espinal v. Holder, 636 F.3d 703, 705 (5th Cir. 2011) ("In addition to filing a petition for review in this court, an alien may simultaneously seek reconsideration by the BIA."). While Gonzales-Veliz's motion for reconsideration was still pending, then-Attorney General Sessions issued his decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), holding that "married women in Guatemala who are unable to leave their relationship" did not constitute a particular social group and clarifying other points of law pertaining to asylum and withholding of removal claims. The BIA denied Gonzales-Veliz's motion for reconsideration by invoking the Attorney General's A-B- decision. Gonzales-Veliz filed a second petition for review, challenging the denial of reconsideration.

         II.

         We first turn to Gonzales-Veliz's initial petition for review concerning the denial of asylum, withholding of removal, and CAT relief. We review factual findings for substantial evidence and "may not reverse the BIA's factual findings unless the evidence compels it." Wang v. Holder, 569 F.3d 531, 536- 37 (5th Cir. 2009); 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."). We hold that substantial evidence supports the BIA's denial of asylum, withholding of removal, and CAT relief.

         A.

         To qualify for asylum, an alien must show "that he is 'unable or unwilling to return to . . . [and] avail himself . . . of the protection of [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.'" Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir. 2019) (alterations in original) (quoting 8 U.S.C. § 1101(a)(42)(A)). To qualify for withholding of removal, the alien must make the same showing but must establish that persecution is "more likely than not," which is "a higher bar than the 'well-founded fear' standard for asylum." Id. (quoting Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002)). "If an applicant does not carry his burden for asylum, he will not qualify for withholding of removal." Id.

         For both asylum and withholding-of-removal claims, the alleged persecutor's motive-whether the persecutor acted against the alien on account of her membership in a particular social group-is crucial. Thus, an alien must show that a protected ground (e.g., membership in a particular social group) was "at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i). "[A]lthough a statutorily protected ground need not subordinate to another reason for harm.'" Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting Matter of J-B-N & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)).

         Here, the BIA found that Gonzales-Veliz failed to show that she was harmed on account of her membership in a particular social group-i.e., that her ex-boyfriend harmed her for being a Honduran woman unable to leave her relationship. Substantial evidence supports this finding. Gonzales-Veliz's own testimony belies her claim. Gonzales-Veliz testified before the IJ that she and her ex-boyfriend had no problem after she left him and that "problems began" only after she sued her ex-boyfriend for child support. Gonzales-Veliz argues that the machismo culture and her ex-boyfriend's desire to sexually dominate her were additional reasons that her ex-boyfriend harmed her.[1] However, the BIA found that her ex-boyfriend was "motivated only by retribution after she sued him," and the record does not compel a contrary conclusion. See Wang, 569 F.3d at 536-37.

         B.

         "To obtain protection under the CAT, an alien must demonstrate that, if removed to a country, it is more likely than not [she] would be tortured by, or with the acquiescence of, government officials acting under the color of law." Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010). Acquiescence by the government includes "willful blindness of torturous activity." Id.

         Gonzales-Veliz argues that the BIA failed to provide a reasoned explanation in denying her CAT relief. Because the Chenery doctrine restricts a reviewing court to evaluate the propriety of an agency's decision on the grounds invoked by the agency, "that basis must be set forth with such clarity as to be understandable." SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). "It will not do for a court to be compelled to guess at the theory underlying the agency's action." Id. at 196-97. The central question under Chenery is whether the BIA's decision "deprive[s] [us] of a reasoned basis for review." Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003). The BIA does not implicate Chenery if it adopts the IJ's opinion such that "the [IJ's] opinion provides the basis for review." Id. Here, the BIA observed that "there [was] insufficient reason to disturb the denial of the applicant's request for protection under the [CAT], on the basis of the [IJ's] conclusion that she did not meet her burden . . . ." The BIA's statement can fairly be read as incorporating the IJ's opinion. The IJ denied CAT relief because Gonzales-Veliz failed to show that the Honduran government would consent to or acquiesce in her torture and because she lacked credibility.

         Substantial evidence supports the IJ's finding that the Honduran police did not and would not acquiesce to Gonzales-Veliz's alleged torture by her ex-boyfriend. Gonzales-Veliz testified that when her ex-boyfriend came to her house to threaten her, the police came and stopped the harassment. Against this record evidence, Gonzales-Veliz simply speculates that her ex-boyfriend called someone higher-up in the police ranks who ordered the police officer to return the gun to her ex-boyfriend and let him go and that her ex-boyfriend later murdered that police officer. However, speculation alone is insufficient to compel a conclusion that is contrary to the IJ's finding. See Milat v. Holder, 755 F.3d 354, 363-64 (5th Cir. 2014) (rejecting an alien's speculation as the basis for reversing a BIA's finding under the substantial evidence standard). Furthermore, although Gonzales-Veliz testified that the police also told her that they could not help her as they lacked the personnel, to the extent that this statement is to be believed, it points to a lack of resources and funding, not consent or acquiescence, on the part of the police force. Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006) (holding that "the [alien's home government's] lack of financial resources to eradicate the threat or risk of torture" is insufficient to warrant CAT relief).

         * * *

         Because substantial evidence supports the denial of asylum, withholding of removal, and CAT relief, we deny Gonzales-Veliz's first petition for review.

         III.

         We now turn to Gonzales-Veliz's second petition for review concerning the BIA's denial of her motion for reconsideration. As discussed above, Gonzales-Veliz filed her motion for reconsideration with the BIA while her first petition for review was pending before us. On June 11, 2018, while Gonzales-Veliz's motion for reconsideration was still pending before the BIA, Attorney General Sessions issued Matter of A-B-, overruling the BIA's precedential decision in Matter of A-R-C-G-, which Gonzales-Veliz cited in crafting her asylum and withholding of removal claims. Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), vacated in part, Grace v. Whitaker, 344 F.Supp.3d 96 (D.D.C. 2018), appeal filed sub nom. Grace v. Barr, No. 19-5013 (D.C. Cir. filed Jan. 30, 2019). On June 29, 2019, the BIA denied reconsideration, holding that Gonzales-Veliz "has not demonstrated that reconsideration is warranted." In particular, the BIA invoked A-B- in denying reconsideration of its previous denial of asylum and withholding of removal.[2]

         We review the BIA's denial of a motion for reconsideration under a highly deferential abuse-of-discretion standard. Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017). To succeed on a motion for reconsideration, the petitioner must "identify a change in the law, a misapplication of the law, or an aspect of the case that the BIA overlooked." Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). Gonzales-Veliz puts forth a comprehensive challenge against the BIA's decision not to reconsider its denial of asylum and withholding of removal. First, she argues that the BIA misinterpreted A-B-. Second, assuming arguendo that the BIA correctly interpreted A-B-, she contends that the A-B-decision was arbitrary and capricious. Third and alternatively, she asks us to remand her matter to the immigration judge so that she can have a fresh start under the A-B- standard. The government responds that we lack jurisdiction to entertain Gonzales-Veliz's arguments relating to A-B- because Gonzales-Veliz failed to exhaust all available administrative remedies.

         Adding to the complexity of the A-B- issue, while Gonzales-Veliz's second petition for review was pending before us, the District Court for the District of Columbia enjoined and vacated in part the A-B- decision. Grace, 344 F.Supp.3d at 146. The government in that case appealed the decision, and the appeal is currently pending before the D.C. Circuit. However, because the district court denied the stay of the injunction, the injunction still stands. Grace v. Whitaker, No. 18-1853, 2019 WL 329572 (D.D.C. Jan. 25, 2019).

         We hold that: (1) we have jurisdiction to entertain Gonzales-Veliz's arguments concerning A-B-; (2) the Grace injunction does not affect our ability to review A-B-, nor could it, as it does not bind courts in this circuit; (3) the BIA correctly interpreted A-B-; (4) A-B- was not arbitrary and capricious; and (5) remand to the immigration judge is not warranted. We address each issue in turn.

         A.

         We first turn to the government's argument that we lack jurisdiction to entertain Gonzales-Veliz's arguments concerning A-B-. "[F]ailure to exhaust an issue deprives this court of jurisdiction over that issue." Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009). "Petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA . . . ." Id. at 318. "This exhaustion requirement applies to all issues for which an administrative remedy is available to a petitioner 'as of right.'" Id. A remedy is available as of right if: (1) the ...


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