Johana Herrera Morales v. Jefferson Sessions, III
2017 U.S. App. LEXIS 11460
| 5th Cir. | 2017Background
- Petitioner Johana Del Carmen Herrera Morales, a ten-year-old Salvadoran national, admits removability and applied for asylum, withholding of removal under the INA, and protection under the CAT.
- Petitioner alleges persecution by two individuals: gang member Rene Menjivar Garcia (assault and nine months of extortion targeting Petitioner's mother) and Antonio Campos (mother's ex-boyfriend who allegedly threatened to harm Petitioner).
- The IJ denied relief based on findings that Menjivar’s conduct did not constitute past persecution and that portions of the mother’s testimony about Campos were not credible; the BIA affirmed.
- Petitioner challenged the BIA’s application of circuit precedent concerning family as a “particular social group,” the adverse credibility finding about Campos, and the denial of CAT protection for lack of state acquiescence evidence.
- The Fifth Circuit reviews legal questions de novo and factual/credibility findings for substantial evidence; it affirmed the BIA on all claims.
Issues
| Issue | Petitioner’s Argument | Government/BIA Argument | Held |
|---|---|---|---|
| Whether Petitioner has a well‑founded fear of persecution (asylum) based on family membership and the assaults/extortion | Family (nuclear/immediate) is a cognizable particular social group; mother’s prior assault should support Petitioner’s claim | Circuit precedent treats gang extortion as criminal purpose, not protected ground; past persecution of mother cannot be imputed to child; Menjivar’s conduct was isolated and not extreme | Denied — Menjivar’s conduct not past persecution; social‑group argument fails under binding circuit precedent |
| Credibility of mother’s testimony about Campos and whether Campos persecuted Petitioner | Mother’s omission of Campos from asylum application was due to focus on Menjivar; her later testimony is credible | Omission is a significant inconsistency undermining credibility; IJ’s adverse credibility finding supported by record | Denied — IJ’s adverse credibility finding sustained under substantial‑evidence review; no established past persecution by Campos |
| Withholding of removal under INA (higher standard than asylum) | Same facts supporting asylum sufficed for withholding | Petitioner failed asylum showing; withholding requires even higher standard | Denied — because asylum relief denied, INA withholding also denied |
| CAT protection (torture more likely than not with state acquiescence) | Country‑condition reports and violence toward women/children support likelihood of torture | Reports are general; Petitioner offered no evidence of state acquiescence or that officials know or would target her | Denied — petitioner failed to show torture more likely than not or sufficient state action |
Key Cases Cited
- Castillo-Enriquez v. Holder, 690 F.3d 667 (5th Cir. 2012) (gang extortion viewed as criminal purpose, not protected ground for asylum)
- Thuri v. Ashcroft, 380 F.3d 788 (5th Cir. 2004) (treatment by criminals for criminal motives not asylum persecution)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (well‑founded fear and withholding standards explained)
- Rui Yang v. Holder, 664 F.3d 580 (5th Cir. 2011) (de novo review whether prior incidents constitute past persecution)
- Fei Mei Cheng v. Attorney Gen. of U.S., 623 F.3d 175 (3d Cir. 2010) (examples and limits of what constitutes persecution)
- Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) (court’s jurisdiction under INA review)
- Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (standards for CAT relief and burden)