Mejia-Alvarenga v. Garland

90 F.4th 348

Marta Alicia MEJIA-ALVARENGA, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.

No. 22-60554

United States Court of Appeals, Fifth Circuit

FILED January 3, 2024

Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX XX7 825

David J. Kline (argued), Alexandria, VA, for Petitioner.

Michelle Regina Slack, Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC, Robert Dale Tennyson, Jr., Ph. D., Trial Attorney (argued), U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.

Before Higginbotham, Smith, and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Marta Alicia Mejia-Alvarenga petitions for review of the Board of Immigration Appeals' denial of her application for asylum. We DENY her petition in part, and we DISMISS her petition in part because we lack jurisdiction.

I

Marta Alicia Mejia-Alvarenga, a native and citizen of El Salvador, was detained while attempting to cross the Rio Grande into the United States near Laredo, Texas. She was then charged with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because she did not possess valid documentation at the time of her entry. She conceded removability as charged. Mejia-Alvarenga then filed an application with the immigration court for statutory withholding of removal and protection under the Convention Against Torture.¹ She later amended her application to seek asylum.

Mejia-Alvarenga based her claims for relief on threats that she received from a man named Rigoberto Nelson and others associated with him. In her application for asylum, Mejia-Alvarenga stated that Nelson raped her while driving her home from a friend's gathering. She further stated that, immediately after raping her, Nelson threatened to kill Mejia-Alvarenga to prevent her from reporting the rape to the police. Nevertheless, Mejia-Alvarenga reported the rape to law enforcement. Shortly after, Nelson was arrested and government officials began his prosecution.

Thereafter, the police sent Mejia-Alvarenga multiple notices to attend court hearings. After attending two hearings, Mejia-Alvarenga was visited by a series of individuals connected with Nelson who pressured her to drop the case. First, Nelson's attorney offered Mejia-Alvarenga money to drop the case. Mejia-Alvarenga reported this to the judge, who removed the attorney from the case. Then, Nelson's second attorney engaged in the same behavior. Once again, Mejia-Alvarenga reported the behavior to the judge, and the judge removed Nelson's attorney from the case. Thereafter, Nelson's mother and sister began visiting Mejia-Alvarenga and offering her money to drop the case. Mejia-Alvarenga stated that they told her "Rigoberto was going to [be] free[d]" regardless of whether she dropped the case, which frightened her because she perceived it as a threat.

Mejia-Alvarenga further alleged that Nelson sent other men to threaten and intimidate her while he was in jail. For example, Mejia-Alvarenga stated that her friend received a phone call telling the friend to warn Mejia-Alvarenga that she needed to be careful because Nelson had been set free and that "something was going to happen" to her. She also stated that random men, whom she believed to be members of the MS-13 gang with Nelson, began showing up to the stand where she sold fruit to threaten her and to tell her to "be careful." In addition, Mejia-Alvarenga stated that her brother-in-law once found a note next to their home stating that Mejia-Alvarenga should leave if she "owed something" and instructing her not to say anything to the police. Nonetheless, Mejia-Alvarenga reported the note to the police, who stated that they could not do anything because the note was anonymous and did not contain "blood or anything else like that."

Mejia-Alvarenga testified that Nelson made his final threat to her roughly seven years after the rape, when Nelson approached Mejia-Alvarenga and said, "you're going to pay for what you did to me." Mejia-Alvarenga contends that she did not report this threat to the police because she feared for her safety. Instead, she traveled to the United States—first by train and then by crossing the Rio Grande.

II

The immigration judge denied Mejia-Alvarenga's application for relief and ordered her to be removed to El Salvador. While the immigration judge found Mejia-Alvarenga to be a credible witness and observed that she had suffered past harm rising to the level of persecution, the immigration judge determined that she had not been harmed on account of a political opinion or her membership in a particular social group. The immigration judge also concluded that Mejia-Alvarenga did not establish a well-founded fear of future persecution because she did not show that the government would be unable or unwilling to control a future persecutor.

Mejia-Alvarenga appealed this decision to the BIA. In addition, she filed a motion asking that the BIA refer her appeal to a three-member panel and seeking summary reversal and remand. In a reasoned order, a single-member panel of the BIA affirmed the immigration judge's decision and denied Mejia-Alvarenga's motion. With respect to her application for asylum and withholding of removal, the BIA determined that Mejia-Alvarenga failed to show that Salvadoran authorities were unable or unwilling to protect her. The BIA's order also rejected Mejia-Alvarenga's arguments that her due process rights were violated; that her appeal should be granted because the government did not file a brief; and that the immigration judge was biased, applied the wrong burden of proof, and overlooked material evidence. Finally, the BIA responded to Mejia-Alvarenga's motion seeking referral to a three-member panel. In doing so, the BIA ruled that it lacked authority to review challenges to its regulatory referral procedures and that the appeal otherwise did not require a three-member panel under 8 C.F.R. § 1003.1(e)(6). Mejia-Alvarenga filed a timely petition for review in this court.

III

We review the BIA's factual findings under the substantial evidence standard and its legal conclusions de novo. Bertrand v. Garland, 36 F.4th 627, 631 (5th Cir. 2022). Where the immigration judge's decision impacted the BIA—as is the case here—we consider the immigration judge's decision to the extent it influenced the BIA. Hernandez-Castillo v. Sessions, 875 F.3d 199, 204 (5th Cir. 2017).

IV

Mejia-Alvarenga contends that the BIA erred in denying her relief because: (1) her petition for asylum established that the Salvadoran government was unable or unwilling to protect her from private persecutors; (2) the BIA adjudicator failed to act as an impartial adjudicator in violation of 8 C.F.R. § 1003.1(d)(1); (3) the BIA violated her constitutional rights when it allowed a single BIA member to render its decision, without referral to a three-member panel; and (4) the BIA committed an abuse of discretion by not referring her case to a three-member panel pursuant to 8 C.F.R. § 1003.1(e)(6).

A

We begin by considering whether the BIA erred when it determined that Mejia-Alvarenga failed to establish that the Salvadoran government was unable or unwilling to protect her from private persecutors, as would be required for her to obtain asylum. We hold that it did not.

To be eligible for asylum, an applicant must establish that she is a "refugee." 8 U.S.C. § 1158(b)(1)(B)(i). To qualify as a refugee, the applicant must show 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." Id. "Persecution refers to harm inflicted either by the government or by private actors whom the government 'is unable or unwilling to control.' " Bertrand, 36 F.4th at 631 (quoting Sanchez-Amador v. Garland, 30 F.4th 529, 533 (5th Cir. 2022)). To prove that a government is unable or unwilling to protect against private persecution, an applicant for asylum "must show that the government condoned the private violence 'or at least demonstrated a complete helplessness to protect the [applicant.]' " Id. at 631-32 (quoting Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006)). The BIA appropriately applied this standard when determining whether the Salvadoran government would be unwilling or unable to control Mejia-Alvarenga's persecutors.

Although Mejia-Alvarenga argues that the "complete helplessness" standard is inapposite because it was adopted in Matter of A-B-, 27 I&N Dec. 316, 337 (A.G. 2018) (A-B-I), which has since been vacated by Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (A-B-III), our precedent forecloses that argument. Bertrand, 36 F.4th at 632 n.5. The complete helplessness standard was the law of this circuit prior to A-B-I, and it continues to serve as the law of this circuit even after the vacatur in A-B-III. Id. In addition, the standard that Mejia-Alvarenga proposes—that she must prove that there is at least a ten percent chance that the Salvadoran government is unable or unwilling to protect her from her persecutors—is without support. Mejia-Alvarenga cites INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), in support of her claim. However, Cardoza-Fonseca is inapposite here because that case did not concern the element of a government's ability or willingness to protect against private persecution. Instead, Cardoza-Fonseca evaluated what is required to establish a "well-founded fear of persecution." Id.

Mejia-Alvarenga further argues that the BIA failed to show meaningful consideration of the relevant substantial evidence supporting her claims because its decision focused on persecution by Nelson alone and did not address the Salvadoran government's ability and willingness to protect her from the MS-13 gang. A decision by the BIA is deficient if it fails to reflect "meaningful consideration of the relevant substantial evidence supporting [an] alien's...