Rosa Martinez-Lopez v. William Barr, U. S.
943 F.3d 766
| 5th Cir. | 2019Background
- Martinez-Lopez and her minor son, Honduran nationals, entered the U.S. without documents in October 2015 and received NTAs that initially omitted date/time but later a hearing notice supplied that information.
- They conceded inadmissibility, applied for asylum, withholding of removal, and CAT protection, and testified about family members murdered in Honduras and repeated gang harassment (including threats at her workplace demanding SIM cards); police inaction was alleged though one gang member was arrested in a later murder.
- The IJ found Martinez-Lopez credible but denied all relief, concluding her harms did not rise to past persecution, she failed to show nexus to a protected ground or likelihood of future persecution, and she failed to show government acquiescence for CAT relief; the BIA affirmed without opinion.
- Martinez-Lopez challenged jurisdiction under Pereira (invalid NTA), argued asylum/withholding based on membership in her brother’s family and political opinion (rule of law), and sought CAT relief based on alleged police acquiescence.
- The Fifth Circuit treated Pierre-Paul as controlling on jurisdiction, reviewed IJ factual findings for substantial evidence, and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under Pereira (defective NTA) | NTA lacking time/place is invalid, so IJ lacked jurisdiction | Subsequent hearing notice cured any defect; regulations differ from stop-time rule | Court followed Pierre-Paul: regulation-based notice valid; jurisdiction proper |
| Past persecution (asylum/withholding) | Family murders, threats, and being followed amount to past persecution | Harassment/threats and economic loss do not necessarily reach persecution | Substantial evidence supports IJ: harms did not rise to past persecution |
| Nexus to protected ground (family membership / political opinion) | Persecutors targeted her as member of brother’s family and for rule-of-law views | Record lacks evidence linking harms to protected grounds; threats were criminal/financially motivated | Held: Martinez-Lopez failed to show persecution or future persecution on account of a protected ground |
| CAT claim (torture and government acquiescence) | Police routinely fail to protect victims; therefore government will acquiesce to torture | Arrest of a gang member and government efforts to combat gangs/corruption cut against acquiescence; no prior torture alleged | Substantial evidence supports denial: petitioner did not show likelihood of torture or official acquiescence |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defective NTA lacking time/place affects stop-time rule)
- Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (notice lacking date/time does not defeat immigration-court jurisdiction; subsequent hearing notice can cure)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) (persecution is more than harassment or threats)
- Revencu v. Sessions, 895 F.3d 396 (5th Cir. 2018) (withholding requires "clear probability"—more likely than not—of persecution)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (government acquiescence requires willful blindness by officials)
- Majd v. Gonzales, 446 F.3d 590 (5th Cir. 2006) (victim must be a "special target" to establish persecution on account of a protected ground)
- Shaikh v. Holder, 588 F.3d 861 (5th Cir. 2009) (persecutor’s generalized criminal demands undercut individualized nexus)
- Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003) (BIA summary affirmances adopt IJ decision for review)