LESLY ODELIA CABRERA v. JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL
No. 15-60711
United States Court of Appeals, Fifth Circuit
May 7, 2018
Lyle W. Cayce, Clerk
Petition for Review of an Order of the Board of Immigration and Appeals
Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.
On May 27, 2014, Lesly Odelia Cabrera, a native citizen of Honduras, fled to the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT“). The Immigration Judge (“IJ“) denied all relief and Cabrera appealed to the Board of Immigration Appeals (“BIA“), alleging the IJ misapplied the law in determining her refugee status and denying relief. The BIA summarily dismissed the appeal. Cabrera now brings this petition for review. We deny in part and grant in part the petition for review.
I. BACKGROUND
Petitioner fled to the United States without authorization in 2014 fearing, according to her, that her political activism posed a threat to her life and that of her teenage son, Edwuard.1 Prior to coming to the United States, Cabrera lived in a poor, crime-afflicted neighborhood in Choloma, Honduras. As in much of the country, Honduras‘s large and powerful gangs—including MS-13 or “the Maras” and their rivals, Barrio 18—are ubiquitous in Choloma. According to Cabrera, the Maras murdered several members of her family, including her cousin, nephew, and two brothers-in-law.
Cabrera says that she became politically active against the gangs and the governing political party in March 2012. That month, the Maras approached then-fifteen-year-old Edwuard as he
After Edwuard‘s assault, Cabrera joined a parents’ group at his school. The group began staging public protests in front of the police station and in the central park, demanding that the police provide protection at the school. Although the police eventually agreed to send a patrol car, their presence lasted only a week or two, after which the parents’ group stood watch throughout the day. Cabrera testified that she guarded the school twice a week from 2012 until the time she left Honduras in 2014.
In addition to organizing protests with the parents’ group, Cabrera joined the Libertad y Refundacion Party (“LIBRE“), a political party opposed to the Maras and current government inaction and corruption. According to one study Cabrera presented to the IJ, the “LIBRE party pre-candidates, candidates, their
In 2014, gang members robbed Cabrera. Fearing she and Edwuard “may be harmed as a result of [her] protests against the Maras’ actions” and her “denouncement of the government‘s inaction and corruption,” she decided that they “would just stay home.” Eventually, Cabrera grew “tired of feeling like a prisoner in [her] own home” and traveled to the United States with Edwuard in May of 2014.
After arriving in the United States, Cabrera applied for asylum, withholding of removal, and relief under the CAT. Her claims were based on her political opinion and her membership in a particular social group (“PSG“) described as female human rights defenders from Honduras. Cabrera testified that she was “afraid that if [she goes] back [to Honduras], [she] would be immediately identified and . . . harmed, [kidnapped] or even killed by the Maras.” She also explained that returning to Honduras and relocating within the country is not a possibility because she would always be in danger.2
In addition to her own testimony, Cabrera presented unchallenged testimony from Dr. Thomas Boerman, a recognized expert on Honduran gangs, including “their culture, sociology, and psychology . . . and factors that affect the Honduran government‘s ability and willingness to respond to crime and violence.” Dr. Boerman has traveled to Choloma on several occasions and describes it as “a community that has been ravaged by gang violence.” He testified that the government is unable and unwilling to prevent gang violence against “activists and human rights defenders” or others who challenge the gangs. Dr. Boerman explained that violent criminal gangs and related government corruption are pervasive in Honduras and asserted that Cabrera‘s participation in public protests, her support of the LIBRE party, and her gender put her at a particular risk of harm. According to Dr. Boerman, “[t]he Honduran government acknowledges that organized criminal groups have infiltrated state institutions—includ[ing] the police, military and judiciary.” The Vice-President of the Honduran National Congress disclosed that “[forty] percent of the country‘s police officers are directly linked to organized crime.”3
Dr. Boerman concluded
Although the IJ made no adverse findings regarding Cabrera‘s credibility, he denied all relief and ordered Cabrera removed to Honduras, concluding that Cabrera “ha[d] not been persecuted in the past” where “one central reason” for the persecution was “either her activities against the gangs or against the violation of human rights.” The IJ also found no indication that “one central reason” for Cabrera‘s being robbed in 2014 was her “activity against the gangs . . . or her participation in any political demonstrations or groups.” He instead found that her fear and her attackers’ motivations were both based in the general criminality of Honduras. Accordingly, the IJ concluded Cabrera had not suffered past persecution on account of any factor that would qualify her for asylum.
As to the likelihood of future persecution, the IJ noted “that gangs can be expected to react viciously and violently against anyone who defies them.” The IJ then determined – despite her own claim – Cabrera‘s group was actually “those who might defy gangs” and those people do not form a PSG. The IJ reasoned that “[t]o simply pick out one way in which a specific individual has defied a gang or disobeyed it and indicate that this has created a particular social group does not constitute evidence of such a group as distinct in Honduran society.” The IJ thus concluded that Cabrera had “not demonstrated that the fear she has of the gangs in Honduras would be on account of any qualifying cause.”
The IJ similarly rejected Cabrera‘s claim for withholding of removal on the ground that she had not “shown a clear probability of future persecution on account of any . . . qualifying cause.” As to Cabrera‘s CAT claim, the IJ found no evidence to establish a “clear probability that she would be tortured by the government of Honduras or with its acquiescence.”
Cabrera appealed to the BIA. The BIA – in a single member, two-page order – agreed with the IJ that Cabrera had not established the requisite likelihood of persecution based on a protected classification as was needed for asylum or withholding of removal. The BIA also adopted the IJ‘s reasoning that Cabrera was not entitled to CAT relief. Cabrera filed a timely petition for review.
II. DISCUSSION
We review the BIA‘s findings of fact for substantial evidence. Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). That review includes the IJ‘s judgment to the extent it influenced the BIA‘s decision. Id. When the BIA summarily affirms the IJ‘s opinions, we review the factual findings and legal conclusions of the IJ. Id. Although we review factual findings for substantial evidence, questions of law are reviewed de novo. Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016). “Substantial evidence is lacking only if the petitioner establishes that the record [is] ‘so compelling that no reasonable fact finder
A. Asylum
Cabrera challenges the IJ‘s denial of her asylum claim, arguing the IJ committed legal errors in determining her refugee status. The Immigration and Nationality Act authorizes the Attorney General to grant asylum to refugees.
Any person who is outside any country of nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself to the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. . . .
This circuit has interpreted this to mean asylum is “available where 1) a person is ‘unwilling to return to’ their home country ‘because of persecution or a well-founded fear of persecution‘; and 2) the applicant has demonstrated that ‘race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.‘” Tamara-Gomez v. Gonzales, 447 F.3d 343, 348 (5th Cir. 2006) (emphasis added) (quoting
The BIA agreed with the IJ‘s finding that Cabrera did not prove that her previous attack was on account of any of the five statutorily protected grounds. Cabrera did not challenge this finding. However, despite finding adversely on claims of past persecution, the IJ must determine whether the petitioner demonstrated a well-founded fear of future persecution if asserted. See Eduard, 379 F.3d at 188, 192. In the inquiry here, however, the IJ required Cabrera to show that she was persecuted in the past to establish that her fear was well-founded. It is well-established in this circuit that requiring a showing of past persecution to support a well-founded fear of future persecution is an erroneous application of the law. See id. (“[R]equiring an applicant to prove past targeting to establish a well-founded fear would effectively replicate the past persecution inquiry.“); see also Zhao v. Gonzales, 404 F.3d 295, 308 (5th Cir. 2005) (“[T]he test does not require [the petitioner] to prove that he had been personally targeted, because such an interpretation would render the future persecution inquiry redundant of the past persecution analysis.“).
“To show a well-founded fear of persecution, an alien must have subjective fear of persecution, and that fear must be
Proving that fear is objectively reasonable, as this circuit previously stated, “does not require an applicant to demonstrate that he will be persecuted in his native country; rather the applicant must establish, to a ‘reasonable degree,’ that return to his country of origin would be intolerable.” Eduard, 379 F.3d at 189 (emphasis added) (quoting Mikhael, 115 F.3d at 305); see also Zhao, 404 F.3d at 307 (“This standard, however, does not require [the petitioner] to demonstrate that he will be persecuted on returning to [his country of nationality]. It requires a lesser showing . . . .“). Furthermore, the plain language of the Code states that an IJ “shall not require” a petitioner to prove “she would be singled out individually” if:
(A) The applicant establishes that there is a pattern or practice in his or her country of . . . persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.
To prove her fear is objectively reasonable a petitioner must prove:
(1) [s]he possesses a belief or characteristic a persecutor seeks to overcome by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and[] (4) the persecutor has the inclination to punish the alien.
Eduard, 379 F.3d at 191 (citing Matter of Mogharrabi, 19 I. & N. Dec. 439, 446 (BIA 1987)). Cabrera asserted that she maintained a fear of future persecution on account of her political opinion and her membership in a particular social group.
“To demonstrate persecution ‘on account of political opinion, the burden is on the alien to prove [her] ‘political opinion was or will be at least one central reason for persecuting the applicant.‘” Milat v. Holder, 755 F.3d 354, 360 (5th Cir. 2014) (quoting
Cabrera pointed to multiple acts that she asserted established a pattern of persecution against others like her because of their political opinion. Cabrera became involved in LIBRE, a political party which opposed the current government, corruption, and gang activity. She claimed LIBRE members were specifically persecuted because of their political opinions. She asserted that the president of the parents’ group associated with LIBRE was robbed and his life was threatened for openly supporting LIBRE in the neighborhood. However, the record supported the finding that the man was not targeted because of his political affiliation but because, as Cabrera stated, “[the Maras] charged a war tax in the places . . . they controlled.”
Cabrera also provided a list of individuals who were killed or attacked as a result of their political activity. LIBRE was disproportionately represented; although it was one of eight political parties, fifty-five percent of the known attacks were against LIBRE members. However, the study accompanying the list acknowledged the list‘s limitations: the list was incomplete; it did not include those who were not candidates, but were deeply involved in the campaign; and fear of further persecution led to underreporting politically-motivated attacks. That those listed were candidates, pre-candidates, or their relatives undercuts Cabrera‘s claims. Cabrera was not, nor was she related to, a candidate or pre-candidate. Thus, this list does not show a pattern of persecution against those similarly situated to Cabrera because of their political opinion.
Lastly, Dr. Boerman provided testimony that his research illuminated that LIBRE party members expressed fear of retaliation as a result of their political opinion and had taken steps to further ensure their security. However, the expert‘s opinion fails to compel a different result because this subjective fear was insufficient to show a pattern of actual persecution against similarly situated LIBRE party members. Thus, substantial evidence supports the IJ‘s finding that Cabrera failed to establish a well-founded fear of persecution based on her political opinion.
2. Particular Social Group
Cabrera also asserted that she maintained a fear of future persecution on account of her membership in a particular social group. However, the IJ failed to consider the PSG of which Cabrera asserted she was a member. The IJ found that, although she had subjective fear, Cabrera
We review the BIA‘s decision “procedurally’ to ensure that the complain[ant] has received full and fair consideration of all circumstances that give rise to his or her claims.” Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996) (quoting Zamora-Garcia v. INS, 737 F.2d 488, 490 (5th Cir. 1984). The BIA‘s decision must reflect a meaningful consideration of all the relevant evidence supporting an asylum seeker‘s claims. See id. at 584–85; see also Woldu v. Gonzales, 209 F. App‘x 380, 381 (5th Cir. 2006) (unpublished). “We do not require the BIA to specifically address every piece of evidence put before it,” but it is error for the agency to “fail[] to address . . . key evidence.” See Abdel-Masieh, 73 F.3d at 585.
The IJ failed to consider whether Cabrera belonged to the PSG she alleged and whether she had a well-founded fear of persecution on account of that membership. In order to prove membership in a particular social group, the BIA established – and this circuit accepted – a test that questions: “(1) ‘whether the group‘s shared characteristic gives the members the requisite social visibility to make them readily identifiable in society’ and (2) ‘whether the group can be defined with sufficient particularity to delimit its membership.‘” Orellana-Monson, 685 F.3d at 519 (quoting In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 69 (BIA 2007)); see also Hernandez-De La Cruz, 819 F.3d at 786.
It is not usual that an IJ fails to evaluate the claim before it, and this circuit has not decided a case under these particular circumstances where instead of evaluating the presented PSG, the IJ posits and evaluates his own. However, similar facts can be found in other circuits. See Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015) (IJ erroneously evaluated the PSG as witnesses against gangs instead of a particular family that was targeted by gangs); Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011) (IJ erroneously evaluated the PSG as those who oppose gangs instead of those who suffer persecution because they are related to prosecutorial witnesses); Valdiviezo-Galdamez v. U.S. Att‘y Gen., 502 F.3d 285, 290–91 (3d Cir. 2007) (IJ “curious[ly]” failed to evaluate the PSG altogether, instead summarily concluding the petitioner‘s attacks had “no nexus to a protected ground“). In Crespin-Valladares, the petitioners claimed they feared persecution on account of their being family members of prosecutorial witnesses who agreed to testify against El Salvadorian gangs. 632 F.3d at 125. The BIA instead identified the group as “those who actively oppose gangs in El Salvador” and concluded that group did not constitute a cognizable social group. Id. The Fourth Circuit found that the BIA committed legal error in concluding that the petitioners were not members of a particular social group because “the family provides ‘a prototypical example of a “particular social group.‘“” Id. (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). That error, according to the court of appeals, flowed from the IJ‘s error in “reject[ing] a group different from that which the Crespins proposed.” Id.
Here, Cabrera identified her group as female activists or human rights defenders from Honduras who actively protest the Maras. The IJ instead identified her group as “those who might defy gangs.” The IJ did not consider her identified status as a woman and the role her gender played in her feared persecution. Dr. Boerman provided evidence that not only were individuals who opposed the governing party attacked,
The IJ never evaluated whether Cabrera described this group with particularity. The IJ did not analyze whether members of the group shared common immutable traits. The judge only stated that those who defy gangs are not a distinct group in Honduran society. This was erroneous and a failure to comply with the agency‘s own standards and responsibilities and provide a meaningful consideration of all the relevant and substantial evidence supporting Cabrera‘s fear of future persecution claim. See Abdel-Masieh, 73 F.3d at 585 (“[The BIA‘s] decision must reflect a meaningful consideration of the relevant substantial evidence supporting an alien‘s claims.“); see also In re Argueta, 2003 WL 23521910, at *1 (BIA Nov. 14, 2003) (unpublished) (finding the IJ erred in characterizing the applicant‘s claim as “related to . . . his sexual preference” when the applicant claimed membership in the social group “persons living with AIDS in Honduras,” but dismissing the appeal because the applicant – who was ineligible for asylum – could not prove the heightened requirements for withholding of removal (omission in original)). As such, we must remand for the agency to comply with its established responsibility. See Abdel-Masieh, 73 F.3d at 585 (“Where an agency has failed to comply with its responsibilities, we should insist on its compliance rather than attempt to supplement its efforts.” (quoting Sanon v. INS, 52 F.3d 648, 652 (7th Cir. 1995))); see also Rios, 807 F.3d at 1126 (“The IJ‘s characterization misapprehended [the petitioner]‘s complaint . . . . The BIA did not address this social group claim—a failure that constitutes error and requires remand.“); Valdiviezo-Galdamez, 502 F.3d at 290 (“[N]either the IJ nor the BIA decided whether the group of which [the petitioner] claims to be a member . . . is a ‘particular social group’ within the meaning of the Act. We decline to decide this question in the first instance.“).
B. Withholding of Removal & Convention Against Torture
The IJ rejected Cabrera‘s claim for withholding of removal on the ground that
Additionally, the IJ‘s conclusion that Cabrera is not entitled to relief under the CAT was substantially reasonable based upon the evidence presented. Although the evidence suggests that Cabrera faces some likelihood of persecution if she returns to Honduras, it is not sufficient to “compel” a different result. See Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); Roy, 389 F.3d at 137–38 (quoting
III. CONCLUSION
In sum, we hold that the BIA erred in requiring Cabrera to prove past persecution to establish a claim based on a well-founded fear of future persecution; and, second, in recharacterizing Cabrera‘s claimed social group. In all other respects, the decision of the BIA is affirmed.
Accordingly, Cabrera‘s petition for review is DENIED, in part, and GRANTED, in part, and the case is REMANDED for further proceedings not inconsistent with this opinion.
CARL E. STEWART
CHIEF JUDGE
Notes
Margaret Sekaggya, Report of the Special Rapporteur on the Situation of Human Rights Defenders, UNITED NATIONS 12–13 (Dec. 13, 2012), http://www.ecoi.net/file_upload/1930_1358957902_ahrc2247add-1-english.pdf.Owing to the exposed nature of their activities, human rights defenders and their families continue to be vulnerable to extrajudicial executions, enforced disappearance, torture and ill-treatment, arbitrary arrest and detention, death threats, attacks, surveillance, harassment, stigmatization, displacement and enforced exile. . . . Such violations are commonly attributed to law enforcement authorities. However, collusion and/or acquiescence has also reportedly been shown with regard to abuses committed by private actors, inter alia, criminal gangs and private security guards. The Special Rapporteur was repeatedly informed that impunity for such violations was a chronic problem.