Case: 19-60707 Document: 00516109324 Page: 1 Date Filed: 11/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 29, 2021
No. 19-60707
Lyle W. Cayce
Clerk
Gibrann A. Valdez Coria,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 549 406
Before Jones, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
The petitioner entered the United States from Mexico without au-
thorization. The Board of Immigration Appeals ordered his removal, reject-
ing all his claims, including that authorities in Mexico have been unable or
unwilling to prevent his persecution for being homosexual. We conclude that
no error has been shown and DENY the petition for review.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60707
FACTUAL AND PROCEDURAL BACKGROUND
Gibrann Valdez Coria is a native and citizen of Mexico. He and his
male partner lived in the Mexican city of Morelia. He testified at the hearing
before an Immigration Judge (“IJ”) that he and his partner had revealed their
relationship to their families but remained discreet in public to avoid harass-
ment. Still, Valdez Coria claims he was harassed multiple times in his
hometown for being homosexual.
Once, in 2014, while Valdez Coria and his partner were playing bas-
ketball, two armed men approached them and attempted to rob them. Valdez
Coria recalled that the armed men called them “young ladies,” which he be-
lieves supports they were targeted for being gay. They were able to escape.
Despite neighbors calling the police, the police never came. Earlier that same
year, another event took place at a local bus terminal. There, a woman har-
assed the two men because they were holding hands. She called them “fags,”
told them they could not hold hands there, and asked them to leave. The
woman then called the police. The police escorted the men out of the termi-
nal, despite Valdez Coria’s protesting they had done nothing wrong. Valdez
Coria believed this was indicative of the police being unwilling to help.
In March 2018, Valdez Coria and his partner were leaving a movie
theater when a vehicle containing four armed men wearing bulletproof vests
stopped them, calling them “young ladies.” One of the four men said, “well
now you’re f***ed because you just ran into the Michoacana Family,” which
is a criminal cartel. They physically forced Valdez Coria and his partner into
the vehicle, compelled them to state their address, and then drove there. Af-
ter entering the home, the four men searched the premises and found photos
of the couple holding hands on a beach. Two of the attackers then raped Val-
dez Coria and his partner. When the attackers left, they stole documents
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containing personal information. They threatened that if the two reported
the incident, they would be physically harmed or killed.
Despite suffering injuries from the attack, Valdez Coria and his part-
ner chose not to go to the hospital for fear that a report would be created.
The two first stayed with a friend in Morelia for a couple weeks. Then, they
fled to Tijuana. In Tijuana, they sought to report the attack. They spoke to
several government agencies, both state and federal, but because the attack
occurred in Morelia and not Tijuana, those agencies stated they could not
assist them. Valdez Coria and his partner then spoke to a human-rights
agency in Tijuana, where an attorney took their statements and offered to file
a complaint. Once the men learned that the complaint could not be filed
anonymously, though, they decided not to proceed.
Eventually, Valdez Coria and his partner disclosed the details of the
events in Morelia to the person with whom they were staying in Tijuana. The
host asked them to leave her home. The two men then went to the San Ysidro
port of entry into the United States, beginning their encounter with this
country’s immigration laws. Valdez Coria’s partner received asylum as a re-
sult of his individual proceedings. We are reviewing the denial of similar re-
lief to Valdez Coria.
After applying for admission in May 2018, Valdez Coria underwent a
credible-fear interview in early June. He was then served with a notice to
appear charging that he was removable. At his first appearance before an IJ,
Valdez Coria admitted the factual allegations in the notice to appear and
sought asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). He submitted documents in support of his ap-
plication, including country reports, news articles, and his own declaration.
The IJ conducted an evidentiary hearing in November 2018 in which
Valdez Coria testified. The IJ determined that Valdez Coria was credible
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when he described the deplorable events that led him to flee Morelia. The IJ
concluded that the elements of past persecution had been shown except for
the requirement that the Mexican government was unable or unwilling to
help him. For that reason, the IJ then denied Valdez Coria’s application.
Valdez Coria appealed to the Board of Immigration Appeals (“BIA”).
The BIA agreed with the IJ that Valdez Coria failed to establish that the Mex-
ican government was unable or unwilling to control the private actors who
harmed him in the past or who may harm him in the future. Valdez Coria
timely filed a petition for review with this court.
DISCUSSION
This court reviews the final decision of the BIA. Sealed Petitioner v.
Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016). We will consider the
IJ’s decision only where it influenced the decision of the BIA. Zhu v. Gonza-
les, 493 F.3d 588, 593 (5th Cir. 2007). Review of the IJ’s decision can occur
even when the BIA did not expressly adopt the IJ’s decision, provided that
the BIA opinion cites the IJ’s ruling favorably while adding very little reason-
ing of its own to affirm the IJ’s decision. Id. at 594. Here, the BIA reiterated
the IJ’s reasoning throughout its opinion and provided little original analysis.
Thus, we also review the IJ’s opinion. See id. at 594.
The IJ’s and the BIA’s factual findings are reviewed for substantial
evidence. Id. The substantial evidence standard requires that the decision
(1) be based on the evidence presented and (2) be substantially reasonable.
Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013) (citations omitted). Un-
der the substantial evidence standard, this court may not reverse a factual
finding unless the evidence “compels” such a reversal — i.e., the evidence
must be “so compelling that no reasonable factfinder could conclude against
it.” Wang v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009). It is the peti-
tioner’s burden to demonstrate that the evidence compels a contrary
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conclusion. Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). Legal ques-
tions are reviewed de novo. Zhu, 493 F.3d at 594.
Valdez Coria challenges both levels of the agency’s legal analysis re-
garding past persecution. He alternatively argues that the record compels
reversal. We separately address the issues.
I. Legal errors
We first identify the elements of a claim of persecution. Asylum may
be granted by the Attorney General to refugees. 8 U.S.C. § 1158(b). A refu-
gee is someone outside the “country of such person’s nationality . . . and who
is unable or unwilling to return to . . . 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.” 8 U.S.C. §
1101(a)(42)(A). The alien has the burden to prove a nexus between the per-
secution and one of those five reasons for persecution. Sharma, 729 F.3d at
412. In addition, the persecution must be by the government or by those
whom the government of that country could not or would not control. Gon-
zales-Veliz v. Barr, 938 F.3d 219, 231 (5th Cir. 2019).
Once past persecution has been shown, there is a presumption that the
alien has a well-founded fear of future persecution were the alien to return to
his or her country. 8 C.F.R. § 208.13(b)(1). Regardless of whether past per-
secution was proven, though, the applicant may show that there is a reason-
able fear of persecution in his or her “country of nationality” on account of
one of the five reasons should the applicant return, that relocating to another
part of that country would not avoid the persecution, and the fear makes the
applicant unwilling or unable to return. Id. § 208.13(b)(2)(i)–(ii). The Gov-
ernment has the burden of rebutting the reasonableness of a fear of persecu-
tion by showing a “fundamental change” in country conditions such that
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persecution could be avoided by the alien’s “relocating to another part of the
applicant’s country.” Id. § 208.13(b)(1)–(3).
The first of Valdez Coria’s two arguments about past persecution is
that the IJ found in his oral statement that Valdez Coria had been persecuted
but then did not shift the burden to the Government to show if he could re-
locate within Mexico to avoid future persecution. The argument is based
primarily on this statement by the IJ at the hearing: “The Court would find
as a matter of law that the respondent suffered persecution. The rape and
harassment in that incident certainly would constitute persecution. The
Court would further find there was persecution on account of a particular
social group, homosexual men.”
The Government argues that the IJ’s use of the word “persecution”
only meant that the IJ found the level of harm inflicted on Valdez Coria was
sufficiently severe to satisfy that element of the claim, but the IJ was not find-
ing that all the elements of a claim of past persecution had been met. That
characterization surely is accurate, as immediately following those sentences,
the IJ stated that the issue remained of “whether or not [] the government of
Mexico [was] unable or unwilling to help him, and that is where I think that
this case fails.”
We hold that the IJ accurately explained the multi-element test for
showing past persecution. The IJ never concluded that all elements neces-
sary to show past persecution were satisfied. Instead, the IJ explained that
Valdez Coria satisfied most of the requirements for asylum but did not prove
the Mexican government was unwilling or unable to protect him. As the IJ
stated, the “case fails” due to that element of the claim. Imprecise use of the
word “persecution” in the oral opinion still leaves the IJ’s meaning clear.
Valdez Coria next posits that the BIA and IJ essentially committed the
same legal error by combining consideration of whether the government was
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unable or unwilling to help him with the internal-relocation analysis which
applies to reasonable fear of future persecution. The argument is based on
the flawed premise that the IJ held that all the elements of the persecution
claim were proven.
Leaving the premise behind, we address the specific point that the BIA
erred when it considered the national government as relevant for the unable-
or-unwilling analysis. Valdez Coria argues that the relevant focus is the local
government, i.e., whether the government of Morelia, where Valdez Coria
was harmed, could control the criminal cartel. His position is that no mean-
ingful burden shifting occurs if he must prove that the national government
is unable or unwilling to control his persecutors in order to receive the pre-
sumption of future persecution. “Put another way,” Valdez Coria argues
that “when an individual is seeking asylum on a claim of past persecution, .
. . the BIA must assess the ability and willingness of the government in the
applicant’s home jurisdiction to protect the applicant, otherwise there is no
meaningful burden to shift [for the internal-relocation analysis] after the find-
ing of past persecution.” 1
The Government responds that the relevant regulation does not pro-
vide a geographical limitation. See 8 C.F.R. § 208.13(b)(1). The regulation
provides that an applicant must show that he or she “is unable or unwilling
to return to, or avail himself or herself of the protection of, that country owing
to such persecution” as one of the elements of past persecution. Id. (empha-
sis added).
1
Valdez Coria did not raise this argument to the IJ during the hearing. He pre-
sented it for the first time in his briefing to the BIA. The BIA did not identify this argument
as waived, but it also did not explicitly reference it. Instead, the BIA commented that the
human-rights agency in Tijuana’s assistance “suggest[s] that the government is not unable
or unwilling to protect him from persecution.”
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The IJ correctly concluded that Valdez Coria failed to show past per-
secution. Further, he has not carried his burden for proving fear of future
persecution of showing that he would be unable to relocate upon returning to
his home country, his claim necessarily fails. See Lopez-Gomez v. Ashcroft,
263 F.3d 442, 446 (5th Cir. 2001); 8 C.F.R. § 208.13(b)(2)(iii).
Accordingly, no error occurred when the IJ and the BIA considered all
of Mexico when evaluating whether the Mexican government was able or
willing to protect Valdez Coria from his persecutors.
II. Factual findings
Valdez Coria also argues that various factual errors compel the grant-
ing of relief. He first argues the IJ’s characterization of his attackers as “low
level” and the IJ’s explanation that the cartel’s power did not extend to Ti-
juana are not supported by substantial evidence. Valdez Coria claims that
these statements are unsupported because he was not running from the cartel
simply because he was a homosexual man but because of the prior assault and
threats for future harm after cartel members stole their victims’ identification
information. 2 He explains that nothing in his testimony supports that his at-
tackers were low-level cartel members.
The Government responds that regardless of whether Valdez Coria
did not identify his attackers as cartel members, common-sense inferences
may be drawn from the evidence. See Rivera-Cruz v. INS, 948 F.2d 962, 967
(5th Cir. 1991). We do not decide whether this was a reasonable inference,
though it is not obviously unreasonable. Instead, we agree with the
2
Valdez Coria also argues error in the BIA’s failure to acknowledge that the cartel
members stole his identity and threated future harm if they “did not continue to be the
cartel’s ‘sex slave[s].’” He argues this failure created error by “disregard[ing] the exist-
ence of an active threat on Valdez Coria’s life.”
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Government’s alternative proposition that the IJ and the BIA correctly relied
on other record evidence to support their conclusions.
The controlling question is whether the BIA’s finding that the Mexi-
can government was able and willing to protect Valdez Coria is supported by
substantial evidence. An agency decision will not be overturned if substantial
evidence supports the decision. Singh v. Barr, 920 F.3d 255, 258–59 (5th Cir.
2019). The record must compel a different result, not just support an alter-
native conclusion. Zhu, 493 F.3d at 594.
Valdez Coria contends that evidence of the Mexican government’s
apathy towards homosexual persecution compels reversal. He argues that
the IJ and BIA based their decisions on mostly irrelevant evidence, such as
the presence of gay bars and pride parades, as well as the existence of hate-
crime legislation. He contends that he presented evidence to counter the ex-
istence of gay bars, noting that they are often the target of violence and that
the parades occurred infrequently due to violence. He also cites to Ninth
Circuit caselaw to say that the existence of hate-crime legislation does not
show an ability or willingness to control the cartel. See Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1075 (9th Cir. 2017). The Government, on the other
hand, relies on record evidence that supports the Mexican government’s at-
tempt to control gang crime.
In a recent unpublished opinion, a panel of this court dealt with a sim-
ilar argument in the context of an individual from El Salvador who claimed
that his government lacked the ability or the willingness to protect him. See
Perez-Tobar v. Garland, 841 F. App’x 716, 717 (5th Cir. 2021). Both “the IJ
and BIA [had] explained that the Salvadoran police accepted [the appli-
cant’s] report of an assault; they further explained that there is no evidence
that the police refused or failed to investigate.” Id. The BIA had also con-
sidered a country report identifying that the country had recently held a
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signing ceremony for a policy to protect members of the applicant’s social
group. Id. Even though the applicant argued that other evidence in the rec-
ord supported that gay individuals were mistreated, the court held that the
evidence did not compel the opposite result. Id. We find that panel’s expla-
nation of substantial-evidence review to be persuasive. The instances Valdez
Coria identify similarly do not compel reversal.
Of some relevance, neither Valdez Coria nor his partner made any of-
ficial report of the kidnapping and rape. They approached no authorities
within Morelia. When the human-rights agency in Tijuana offered to help
them file a complaint, both men declined. Valdez Coria explains that such
reports would have been futile based on other experiences, but the evidence
is not compelling about futility. Valdez Coria describes two other events to
support the claim of futility. First, the bus incident where the police were
called and asked both him and his partner to leave the bus station after homo-
phobic slurs were used. Second, he indicates that law enforcement’s failure
to respond to the neighbor’s report of the 2014 attack while playing basketball
similarly supports his position.
This court has considered such arguments before. A panel of this
court held that the “subjective belief that it would have been futile to report
the abuse to authorities, based on [the applicant’s] testimony that the police
can be bribed and because her partner had connections in the government, is
not sufficient to compel a conclusion that the Honduran government was un-
able or unwilling to protect her.” Arevalo-Velasquez v. Whitaker, 752 F.
App’x 200, 202 (5th Cir. 2019). In that case, the applicant, like Valdez Coria,
had traveled away from the location of the incident and talked about the inci-
dent with someone who could help. Id. at 201. The police sergeant outside
of the city where the incident occurred encouraged the applicant to make a
formal complaint or seek other legal protection, but neither occurred. Id. We
agree with that analysis.
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There is contrary evidence in the record about the benefits of filing a
report of such treatment. Valdez Coria was encouraged to file a complaint
when he spoke to the human-rights agency in Tijuana, but he chose not to. 3
The BIA explained that Valdez Coria “has not shown that the failure of the
police to respond to the neighbor’s report of the attack . . . was tied in any
way to their homosexuality, as opposed to a more benign reason such as gen-
eral ineffectiveness.” Finally, Valdez Coria testified that there was a human-
rights attorney ready and willing to help the couple file a complaint against
the attackers. It was their choice not to pursue that opportunity.
The record does not compel reversal of the denial of relief based on
the challenged fact-findings. The petition for review is DENIED.
3
We acknowledge that a report need not always have been filed to succeed in a
claim for asylum. See, e.g., Matter of S-A-, I. & N. Dec. 1328, 1333 (BIA 2000); Arevalo-
Velasquez, 752 F. App’x at 201–02. Our point is only that the evidence does not compel a
conclusion that the report would have been futile.
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