Esteban Poscual-Jimenez v. Jeff Sessions
678 F. App'x 191
| 5th Cir. | 2017Background
- Petitioner Esteban Poscual-Jimenez, a Mexican national, sought withholding of removal and protection under the Convention Against Torture (CAT).
- The BIA affirmed the immigration judge’s denial; this appeal reviews the BIA decision (IJ considered only as it influenced the BIA).
- Petitioner’s brief to this court largely mirrored his BIA brief, lacked record citations, and contained conclusory assertions; court deemed issues waived for inadequate briefing.
- Alleged persecution involved extortion threats by the Zetas directed at petitioner’s family, tied to perceived taxi association membership, land ownership, and taxi businesses.
- The BIA found petitioner failed to show membership in a cognizable particular social group or evidence of past or likely future torture involving government acquiescence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is eligible for withholding of removal based on membership in a particular social group | Poscual-Jimenez: targeted because he and family are perceived as taxi association members and business/land owners | Gov: alleged targeting was economic extortion, not persecution of a protected group; employment/economic status not immutable | Denied — group not cognizable; employment/economic status not protected; extortion not persecution of a protected group |
| Whether petitioner established social visibility and particularity for a particular social group | Poscual-Jimenez: family’s association and business ownership mark them as a discrete group | Gov: characteristics are economic/professional and not immutable or sufficiently particular | Denied — group lacks immutability, social visibility, and particularity |
| Whether petitioner proved eligibility for CAT protection due to past or future torture | Poscual-Jimenez: threatened by violent cartel; risk of torture on return | Gov: no evidence of past torture or likelihood of government instigation/acquiescence | Denied — no evidence of past torture or likelihood of government acquiescence to torture |
| Whether petition should be considered despite briefing deficiencies | Poscual-Jimenez: substantive review of claims warranted | Gov: inadequate briefing and failure to cite record waives issues | Court: deemed waived for inadequate briefing; alternatively, claims fail on merits |
Key Cases Cited
- Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) (standard of review of BIA decisions)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (substantial-evidence standard; petitioners must show evidence so compelling no reasonable factfinder could disagree)
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir. 2004) (standard for withholding of removal and protected grounds)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (definition of particular social group: immutability, social visibility, particularity)
- Castillo-Enriquez v. Holder, 690 F.3d 667 (5th Cir. 2012) (declining to recognize business owners/economic status as protected group)
- Mwembie v. Gonzales, 443 F.3d 405 (5th Cir. 2006) (employment generally not an immutable characteristic)
- Garcia v. Holder, 756 F.3d 885 (5th Cir. 2014) (economic extortion is not persecution on account of a protected ground)
- Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) (CAT requires showing it is more likely than not applicant would be tortured on return)