611 F. App'x 813
5th Cir.2015Background
- Jeaneth Guadalupe Lemus, an El Salvadoran national, appealed the BIA’s dismissal of her asylum, withholding of removal, and CAT claims after an IJ denied relief.
- Lemus filed asylum late and argued the deadline should be excused due to changed country conditions (increased gang violence) in El Salvador.
- Lemus alleged past domestic violence by a former partner (Salazar) and a well-founded fear he would resume abuse; she also asserted a pattern or practice of persecution of domestic-violence victims in El Salvador.
- Record facts: Lemus ceased her relationship with Salazar in 1995 (married another in 1995); the last alleged abuse by Salazar occurred in 1999; no evidence Salazar currently seeks to harm her or that she cannot relocate within El Salvador.
- The BIA found the asylum claim time-barred, and denied withholding of removal and CAT relief; the Fifth Circuit reviewed factual questions for jurisdictional limits and applied the substantial-evidence standard for the BIA’s findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum filing delay excused by changed country conditions | Lemus: increased gang violence in El Salvador excuses late asylum filing | BIA: factual determination that changed-conditions claim not established | Dismissed for lack of jurisdiction to review factual challenge to BIA’s changed-conditions finding |
| Whether Lemus is entitled to withholding of removal based on past persecution/well-founded fear | Lemus: past domestic abuse by Salazar and fear he will resume abuse; pattern/practice against domestic-violence victims | BIA: insufficient evidence of likelihood of future persecution, no current threat from Salazar, internal relocation possible, no pattern/practice shown | Denied — evidence does not compel finding of well-founded fear or pattern/practice |
| Whether the government in El Salvador condones widespread persecution of domestic-violence victims | Lemus: country conditions demonstrate government acquiescence or failure to protect victims | BIA: government has implemented measures; record does not show organized, pervasive persecution | Denied — substantial evidence supports BIA that government does not countenance such persecution |
| Whether Lemus is eligible for CAT relief | Lemus: more likely than not to be tortured by Salazar and government would acquiesce | BIA: no showing nonstate actor would torture her to level of CAT or that government would acquiesce | Denied — substantial evidence supports BIA that CAT standard not met |
Key Cases Cited
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (standard for reviewing BIA and IJ decisions; reversal only if evidence compels)
- Nakimbugwe v. Gonzales, 475 F.3d 281 (5th Cir. 2007) (factual questions about changed country conditions not reviewable for jurisdictional claims)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (substantial-evidence review for CAT and withholding decisions)
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir. 2004) (well-founded fear and withholding standards)