Ismael GONZALEZ-SOTO, also known as Ismael Gonzalez, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent
No. 14-60722
United States Court of Appeals, Fifth Circuit.
November 14, 2016
The Welch Firm‘s attempts to distinguish the causes of action and their damage amounts are unavailing. The Texas Supreme Court has held that a party bringing a claim under Chapter 541 premised on the failure to settle must meet the requirements of a Stowers claim. Rocor Int‘l, Inc. v. Nat‘l Union Fire Ins. Co., 77 S.W.3d 253, 260-62 (Tex. 2002). Not only do “the two causes of action have certain overlapping elements,” as the Welch Firm admits, but also the causes of action are also almost identical. Accepting the Welch Firm‘s understanding of the law, therefore, would allow for separate additional and exemplary damage assessments based on claims that almost always involve identical acts. Furthermore, many of the Welch Firm‘s arguments attempt to distinguish the claims and the jury‘s findings. But Berry requires that the awards be “based upon separate jury findings and upon different acts,” and the Welch Firm failed to show that OneBeacon‘s acts under each claim were materially different. 850 S.W.2d at 665-66 (emphasis added). As the district court aptly stated, “[w]hile the jury may have considered some of OneBeacon‘s actions in handling the settlement decision more when assessing the common law Stowers claim than in assessing the additional damages claim under Chapter 541, both claims related to essentially the same series of actions and the ultimate refusal to settle.” Therefore, the district court did not err in requiring the Welch Firm to choose between additional damages under Chapter 541 and exemplary damages under Stowers.
Gino Mario Mesa, Esq., Law Office of Gino M. Mesa, Houston, TX, for Petitioner.
W. Daniel Shieh, Esq., Trial Attorney, Office of Immigration Litigation, Enitan Otunla, Trial Attorney, Civil Division/OIL, U.S. Department of Justice, Washington, DC, for Respondent.
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:
Ismael Gonzalez-Soto petitions for review of the decision of the Board of Immigration Appeals (BIA), dismissing his appeal from the order denying his application for withholding removal under section 241(b)(3) of the Immigration and Nationality Act (INA),
The decision of an immigration judge is reviewed to the extent it influenced the BIA; legal conclusions are reviewed de novo and factual findings, for substantial evidence. Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016).
To qualify for withholding of removal, an alien “must demonstrate a ‘clear probability’ of persecution upon return“. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). Thus, Gonzalez was required to demonstrate his “life or freedom would be threatened by persecution on account of either his race, religion, nationality, membership in a particular social group, or political opinion“. Id. In that regard, Gonzalez contends his membership in two different social groups made him eligible for withholding of removal. His claims fail in each instance.
First, he maintains he will likely face persecution in Mexico because the family of a man murdered by his father more than two decades ago allegedly targets him for revenge. Gonzalez testified, however, that his mother, uncle, and siblings have continued to reside in Mexico since the murder. The BIA may conclude “the reasonableness of an alien‘s fear of persecution is reduced when his family
Second, Gonzalez maintains he will likely face persecution in Mexico because he will be perceived to have wealth for having lived in the United States. An alien‘s proffered social group must be sufficiently particular and socially visible to be cognizable for purposes of withholding of removal. Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786-87 & n.1 (5th Cir. 2016). “Particularity is determined by ‘whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.‘” Id. at 786-87 (internal citation omitted).
“We do not recognize economic extortion as a form of persecution under immigration law, nor do we recognize wealthy [citizens of a different nation] as a protected group.” Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012) (internal quotation marks and citation omitted). Further, persons believed to be wealthy because they are returning to their home country from the United States do not constitute a sufficiently particular social group to support an application for withholding of removal. E.g., Diaz v. Holder, 537 Fed.Appx. 357, 358 (5th Cir. 2013); Segovia v. Holder, 406 Fed.Appx. 930, 930-31 (5th Cir. 2011).
DENIED.