United States Court of Appeals
Fifth Circuit
F I L E D
In the July 3, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-61169
_______________
PUANGSUK HONGYOK,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of a Decision of
the Board of Immigration Appeals
m A79 733 664
______________________________
Before GARWOOD, SMITH, and DEMOSS, I.
Circuit Judges. Hongyok is an adult female native and citi-
zen of Thailand. In 1999 or 2000 she entered
JERRY E. SMITH, Circuit Judge: the United States at or near Los Angeles, Cali-
fornia, either without inspection or as a tourist.
Puangsuk Hongyok seeks review of a deci- In February 2003 she was charged with being
sion of the Board of Immigration Appeals removable as an alien illegally present in the
(“BIA”) denying withholding of removal under United States. She appeared before an immi-
8 U.S.C. § 1231(b)(3) and protection under gration judge (“IJ”), who found that she was in
the Convention against Torture (“CAT”), the United States illegally and thus was remov-
8 C.F.R. §§ 1208.16 through -18. We deny able.
the petition.
Because she was unable to establish that
she had sought asylum within one year of en-
tering the United States, Hongyok sought Yok will kill her if she returns to Thailand, and
withholding of removal and relief under the there is nowhere in Thailand where she would
CAT in lieu of asylum. She contended that she be safe from the traffickers.
would be subject to persecution and torture
because she is a member of a “particular social Hongyok does not believe the Thai govern-
group” composed of victims of sex trafficking ment will protect her from Kim and Yok or
who have escaped.1 their gang, because the Thai police have been
thoroughly corrupted by sex traffickers. She
Hongyok testified that she had intended to also presented documentary evidence report-
leave Thailand to come to the United States ing a widespread sex trade in Thailand and
with people who had promised her a job. In- southeastern Asia and the Thai government’s
stead, her passport was taken away from her, toleration of and complicity in sex trafficking.
and she was taken to New York and forced to
work as a prostitute to repay a $45,000 debt II.
owed to the people who had brought her to Although the IJ granted withholding of re-
the United States. She was confined inside a moval and relief under the CAT, the BIA
New York brothel for six months by persons reversed. The BIA declined to categorize es-
she identified as Kim and Yok. caped sex trafficking victims as a particular
social group and found that Hongyok’s fears
At the end of her time in New York, Hong- of persecution were based on an outstanding
yok was told she had paid off $30,000 of the debt. The BIA further determined that Hong-
debt and was taken to Chicago and then to yok had failed to meet her burden to prove
Atlanta. Apparently her stay in Atlanta was that persecution on her return to Thailand was
unprofitable for the traffickers, and she was “more likely than not.” See INS v. Cardoza-
told to return to New York. Fonseca, 480 U.S. 421, 423 (1987). The BIA
pointed out that Hongyok had not specified
Instead, Hongyok used money she had re- when the alleged threatening phone calls to her
ceived in Atlanta to fly to Los Angeles. She mother had been made; it concluded that the
went from Los Angeles to Philadelphia, Atlan- callers “seemed more interested in having the
tic City, and Houston. She was arrested for debt repaid than in seeking [Hongyok].”
prostitution in all three of the latter cities.
III.
Hongyok testifies that she still owes Kim We review the BIA’s decision, not that of
and Yok $5,000, and they are still looking for the IJ. See Mikhael v. INS, 115 F.3d 299, 302
her and have called her mother in Thailand (5th Cir. 1997). Where the BIA has not
“about five times” to say Hongyok still owed adopted the IJ’s conclusion or findings, the
them money and was in “big danger” of being IJ’s determinations are irrelevant to our re-
hurt. Hongyok believes associates of Kim and view. See id.; Chun v. INS, 40 F.3d 76, 78
(5th Cir. 1994).
1 The government argues that we lack even
See § 1231(b)(3) (providing relief for aliens
the authority to review the BIA’s decision,
subject to removal who, if removed, would be sub-
ject to persecution on the basis of membership in a
because Hongyok has failed to exhaust her
particular social group).
2
administrative remedies.2 We disagree. have been entitled to defend itSSshe is not
conclusively barred from judicial relief; she
The government emphasizes that Hong- presents the court with the same definition she
yok’s proposed group of “sex trafficking vic- originally proposed to the agency, and that de-
tims who escape from a sex trafficking ring” finition does not significantly differ from the
was not adopted by the IJ and thus was not be- one considered on appeal by the BIA. She has
fore the BIA on the government’s appeal. In- adequately presented her proposed ground for
stead the IJ defined the protected social group relief to the administrative agency in the first
as “sex slaves from foreign countries who are instance. See id. at 452.
brought to the United States under false pre-
tenses and forced at the threat of death and IV.
destruction to participate in sexual activities.” We need not and do not address the BIA’s
legal conclusion that escaped sex slaves are
This disparity, however, does not implicate not a protected social group; the BIA’s factual
the straightforward requirement that a peti- conclusion that Hongyok has failed to meet
tioner present her ground for relief to the ad- her burden to prove that she personally would
ministrative agency in the first instance in or- more likely than not be subject to persecution
der to avoid waiver. Wang v. Ashcroft, 260 in Thailand is supported by substantial evi-
F.3d 448, 452 (5th Cir. 2001). Hongyok has dence.3 No alien is entitled to statutory with-
asked for the same reliefSSwithholding of re- holding of removal unless the Attorney Gen-
moval because of membership in a protected eral finds that there is a “clear probability,”
social group and protection under the CATSS i.e., “[u]nless it is more likely than not,” that
at every agency and judicial level involved in the alien will be subjected to persecution on
this case and has done so with the same pro- account of race, religion, membership in a par-
posed formulation of the social group. The ticular social group or political opinion if she
government fails to point to any material dif- is returned to her country of origin. INS v.
ference between Hongyok’s proposed social Stevic, 467 U.S. 407, 424, 430 (1984). Under
group and the one adopted by the IJ. the substantial evidence standard, the BIA’s
finding is “conclusive unless any reasonably
We are aware of no case conditioning fed- adjudicator would be compelled to conclude to
eral court jurisdiction on the absence of insig- the contrary.”4
nificant semantic differences between a peti-
tioner’s proposed social group and the defini- The BIA’s finding is supported by its ob-
tion formulated by the agency, and we decline servations that Hongyok did not specify
to announce such a condition here. Although whether the calls to her mother were made
the IJ’s formulation of the social group might recently and did not otherwise indicate how
be somewhat more legally precise than that
proposed by HongyokSSand Hongyok would
3
See Efe v. Ashcroft, 293 F.3d 899, 906 (5th
Cir. 2002) (reviewing BIA factual determinations
for substantial evidence).
2
See 8 U.S.C. § 1252(d)(1); see also Townsend
4
v. INS, 799 F.2d 179, 181 (5th Cir. 1984) (stating 8 U.S.C. § 1252(b)(4)(B); see also Ontunez-
that § 1252(d)(1)’s administrative exhaustion re- Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir.
quirement implicates the court’s jurisdiction). 2002).
3
the people she fears would harm her would bility for relief under the CAT are independent.
find her in Thailand, given that she need not Tamara-Gomez v. Gonzales, 447 F.3d 343,
declare to anyone why she was returning or 350 (5th Cir. 2006). The BIA’s finding, how-
discuss her experiences in the United States. ever, discussed above and supported by sub-
Because a reasonable finder of fact would not stantial evidence, that Hongyok failed to
have been compelled to find that it is more demonstrate that she would probably be sub-
likely than not that Hongyok would be perse- ject to persecution is sufficient to support its
cuted on her return to Thailand, we are ob- ruling that she was not eligible for protection
liged to affirm the BIA’s conclusion.5 See Efe, under the CAT because she has failed to dem-
293 F.3d at 906. onstrate that she will likely suffer “pain and
suffering” at anyone’s hands and thus has
V. failed to demonstrate that she would be subject
Withholding of removal pursuant to the to torture. Id. at 350-51.
CAT requires a finding not merely of probable
persecution, but also that the persecution Accordingly, we DENY the petition for
would amount to torture. 8 C.F.R. § 1208.18- review.
(a)(1); Efe, 293 F.3d at 907. A determination
of “torture” requires, inter alia, that the requi-
site degree of “pain or suffering is inflicted by
or at the instigation of or with the consent or
acquiescence of a public official or other per-
son acting in an official capacity.” § 1208.18-
(a)(1). The torture need not be inflicted as a
result of membership in a social group. Efe,
293 F.3d at 907.
Analyses of an alien’s eligibility for statu-
tory withholding of removal and of his eligi-
5
Hongyok’s counsel contended at oral argu-
ment that the BIA was obliged to review the IJ’s
findings of fact for clear error, rather than de novo.
See 8 C.F.R. § 1003.1(d)(3)(i). Hongyok’s proce-
dural right to the application of a particular stan-
dard of review is reviewable. See 5 U.S.C. § 704
(“A preliminary, procedural, or intermediate agen-
cy action or ruling not directly reviewable is sub-
ject to review on the review of the final agency ac-
tion.”). We need not evaluate whether the BIA
used an incorrect standard of review, however,
because Hongyok’s failure to raise this contention
in her opening brief waived the issue. See United
States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000).
4