Case: 19-60355 Document: 00516160370 Page: 1 Date Filed: 01/10/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 10, 2022
No. 19-60355 Lyle W. Cayce
Clerk
Leon Santos-Zacaria, also known as Leon Santos-
Sacarias,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 372 949
Before Owen, Chief Judge, and Clement and Higginson, Circuit
Judges.
Priscilla R. Owen, Chief Judge:
Leon Santos-Zacaria (Santos), a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’s (BIA’s) decision
denying her application for withholding of removal and for relief under the
Convention Against Torture (CAT). We deny in part and dismiss in part
for lack of jurisdiction.
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I
Santos, who is a transgender woman and is attracted to men, alleged
that she was sexually assaulted by a neighbor in Guatemala at the age of 12
for being gay and asserted that she was likely to face persecution if she
returned to Guatemala due to her sexual orientation and gender identity. The
immigration judge (IJ) denied her application for withholding of removal,
concluding that Santos’s prior assault was insufficient to establish past
persecution. The IJ also denied Santos’s claim for relief under the CAT.
Santos appealed to the BIA.
The BIA dismissed her appeal. First, the BIA concluded that Santos’s
allegation of sexual assault was sufficient to establish past persecution on
account of membership in a particular social group. Consequently, Santos
was entitled to a presumption of future persecution. However, the BIA ruled
that the government had rebutted the presumption. The BIA also affirmed
the IJ’s ruling that Santos had not established eligibility for relief under the
CAT. Finally, the BIA rejected an argument that the IJ ignored or failed to
consider relevant evidence. Santos filed a timely petition for review.
II
Santos contests the BIA’s decision that she is not eligible for
withholding of removal. Whether an applicant is eligible for withholding of
removal is a factual determination that this court reviews under the
substantial evidence standard. 1 “The substantial evidence standard requires
only that the BIA’s decision be supported by record evidence and be
substantially reasonable.” 2 “[R]eversal is improper unless we decide ‘not
1
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
2
Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).
2
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only that the evidence supports a contrary conclusion, but [also] that the
evidence compels it.’” 3
“To be eligible for withholding of removal, an applicant must
demonstrate a ‘clear probability’ of persecution upon return.” 4 “A clear
probability means that it is more likely than not that the applicant’s life or
freedom would be threatened by persecution on account of either h[er] race,
religion, nationality, membership in a particular social group, or political
opinion.” 5 If an applicant proves past persecution, she is entitled to a
rebuttable presumption of future persecution. 6
A
As an initial matter, Santos argues for the first time on appeal that the
BIA engaged in impermissible factfinding. This court “may review a final
order of removal only if . . . the alien has exhausted all administrative
remedies available to the alien as of right.” 7 “[F]ailure to exhaust an issue
deprives this court of jurisdiction over that issue.” 8 “[A]llegations of
impermissible factfinding by the BIA must first be brought before the BIA in
a motion for reconsideration to satisfy exhaustion.” 9 Accordingly, because
3
Zhang, 432 F.3d at 344 (alteration in original) (quoting Zhao v. Gonzales, 404 F.3d
295, 306 (5th Cir. 2005)).
4
Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam) (quoting Faddoul
v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
5
Id.
6
8 C.F.R. § 1208.16(b)(1)(i).
7
8 U.S.C. § 1252(d)(1).
8
Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009).
9
Id. at 320.
3
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Santos did not present this argument before the BIA in a motion for
reconsideration, it is unexhausted, and we lack jurisdiction to consider it.
Judge Higginson’s dissenting opinion contends that this court
has jurisdiction because of a request for potential additional factfinding in
Santos’s brief appealing the IJ’s decision. 10 That request occurred before the
BIA ruled on Santos’s claims. It is unrelated to the factfinding Santos asserts
the BIA made. The first objection she made to the BIA’s alleged factfinding
was in her brief to this court. Because this objection was not made to the BIA,
Santos has not met the exhaustion requirement.
B
Next, Santos asserts that the BIA’s determination that the
government rebutted the presumption of future persecution is not supported
by substantial evidence. “The government may rebut th[e] presumption [of
future persecution] by demonstrating that there has been a fundamental
change in the circumstances of the country of removal, or that the applicant
could avoid a future threat to h[er] life or freedom by reasonably relocating
to a different part of the country of removal.” 11 Santos further argues that
the BIA erred by “lumping together Ms. Santos’ claim as a homosexual
Guatemalan and Ms. Santos’ claim as a transgender Guatemalan.”
The BIA accepted Santos’s “proposed particular social groups,
described as ‘gay’ and ‘transgender,’” but nevertheless found that “the
presumption of future persecution on account of [Santos’s] homosexuality
or transgender identity has been rebutted in this case.” In reaching its
conclusion, the BIA found that Santos acknowledged that she “would be able
10
Post at 8 (citing ROA.29).
11
Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir. 2007) (per curiam).
4
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to safely relocate within Guatemala.” Santos argues that the BIA
mischaracterized her statements and that she never stated that she could
safely relocate.
During cross-examination at a hearing before the IJ, the government
questioned Santos about cities in Guatemala that have pride parades and
where people participate in “gay and lesbian lifestyles.” The government
then asked, “[b]ut if you know of cities that are open to gay and lesbian and
transgender lifestyles you would rather move to those cities than the one you
lived in correct?” Santos replied, “[y]es, probably there is another place
where I can live down there but I don’t but I try to stay here to get this
protection because besides that I have a brother living here so I’m trying to
have him help me.” Because Santos agreed that there was probably a place
where she could safely relocate within Guatemala, the BIA’s determination
that the government rebutted the presumption of future persecution is
supported by substantial evidence for both of Santos’s particular social
groups.
Judge Higginson’s dissenting opinion views Santos’s statement
as “vague and equivocal” because it was made in response to a hypothetical
question and through an interpreter. 12 We do not agree with the
characterization of Santos’s statement as vague and equivocal. The BIA
reasonably interpreted her statement to mean that she did in fact know of a
city or cities in Guatemala where it was probably safe for gay and transgender
people to live. As the Supreme Court has explained, “[t]he BIA's
determination that [an alien] was not eligible for asylum must be upheld if
‘supported by reasonable, substantial, and probative evidence on the record
12
Post at 10.
5
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considered as a whole.’” 13 Such a determination “can be reversed only if the
evidence presented by [the alien] was such that a reasonable factfinder would
have to conclude that the requisite fear of persecution existed.” 14
“[A]n applicant cannot demonstrate that his or her life or freedom
would be threatened if the asylum officer or immigration judge finds that the
applicant could avoid a future threat to his or her life or freedom by relocating
to another part of the proposed country of removal and, under all the
circumstances, it would be reasonable to expect the applicant to do so.” 15
Because the BIA’s determination that Santos could reasonably relocate
within Guatemala is supported by substantial evidence, the BIA did not err
in concluding that Santos is ineligible for withholding of removal.
III
Santos also challenges the BIA’s determination that she is not eligible
for relief under the CAT. To be eligible for relief under the CAT, an
applicant bears the burden to “establish that it is more likely than not that he
or she would be tortured if removed to the proposed country of removal.”16
“Torture is defined as any act by which severe pain or suffering . . . is
intentionally inflicted on a person . . . for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by, or at the instigation
of, or with the consent or acquiescence of, a public official acting in an official
capacity or other person acting in an official capacity.” 17 Whether an
13
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citing 8 U.S.C. § 1105a(a)(4))
(current version at 8 U.S.C. § 1252).
14
Id.
15
8 C.F.R. § 1208.16(b)(2).
16
Id. § 1208.16(c)(2).
17
Id. § 1208.18(a)(1).
6
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applicant is eligible for relief under the CAT is a factual determination that
we review for substantial evidence. 18
First, Santos asserts that neither the IJ nor the BIA adequately
analyzed her CAT claim. We lack jurisdiction to review Santos’s challenge
to the adequacy of the BIA’s analysis because Santos could have raised this
argument in a motion for reconsideration before the BIA but failed to do so. 19
As to the IJ’s analysis, the IJ is merely required to show “that it consider[ed]
the issues raised, and [to] announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not merely
reacted.” 20 The IJ’s decision, which set out the pertinent law and relevant
facts surrounding Santos’s claim for relief under the CAT, adequately
conveyed the reasoning behind denying the claim.
Second, Santos challenges the merits of her CAT claim, arguing that
she faces a risk of torture from disparate groups in Guatemala, and that the
probability of torture from these groups should have been aggregated. Even
giving full weight to Santos’s evidence, the evidence does not compel a
finding that she will be tortured with the consent or acquiescence of a public
official in Guatemala. 21
* * *
For these reasons, Santos’s petition for review is DENIED in part
and DISMISSED in part for lack of jurisdiction.
18
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
19
See Omari v. Holder, 562 F.3d 314, 319-21 (5th Cir. 2009).
20
Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002) (quoting Becerra–Jimenez v.
INS, 829 F.2d 996, 1000 (10th Cir. 1987)).
21
See 8 C.F.R. § 1208.18(a)(1).
7
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Stephen A. Higginson, Circuit Judge, dissenting:
The Board exceeded its scope of review by engaging in impermissible
factfinding. The Immigration Judge concluded that Santos did not suffer past
persecution on account of a protected ground, so it did not reach the question
of whether DHS had rebutted the presumption of future persecution. When
the Board, in a single-member decision, determined that “the presumption
of future persecution . . . has been rebutted in this case,” it engaged in
factfinding not permitted by the regulations. 1 8 C.F.R. § 1003.1(d)(3)(iv); see
also Singh v. Barr, 920 F.3d 255, 259 (5th Cir. 2019) (BIA finding that DHS
has rebutted the presumption of future persecution is a factual finding
reviewed for substantial evidence). Santos adequately requested that the
Board remand her case for additional factfinding, 2 so we have jurisdiction to
review this claim. See Omari v. Holder, 562 F.3d 314, 324 (5th Cir. 2009). I
would remand.
Even if it were a valid exercise of its authority, the Board’s decision is
not supported by substantial evidence. The Government may rebut a
presumption of future persecution by “demonstrating that there has been a
fundamental change in the circumstances of the country of removal, or that
the applicant could avoid a future threat to his life or freedom by reasonably
relocating to a different part of the country of removal.” Arif v. Mukasey, 509
F.3d 677, 681 (5th Cir. 2007). The Government has not made either showing.
1
On appeal, the Government cites Enriquez-Gutierrez v. Holder, 612 F.3d 400,
409–10 (5th Cir. 2010) to suggest that administratively noticeable factfinding by the Board
is permissible. The decision in Enriquez-Gutierrez, however, is manifestly inapt, as it
pertains to appropriate administrative notice of a stipulated prior conviction, id. at 411, not
crediting a cross-examination remark over direct testimony the IJ found credible.
2
ROA.29.
8
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Regarding country conditions, the Government’s evidence suggests
that gay and transgender persons regularly face violence, harassment, and
discrimination in Guatemala. The United States Department of State 2017
Human Rights Report on Guatemala, submitted by the Government but not
discussed by the Board, lists one of “[t]he most significant human rights
issues” in Guatemala as “police violence against lesbian, gay, bisexual,
transgender, and intersex individuals.” The report also notes that “[t]here
was general societal discrimination against LGBTI persons in access to
education, health care, employment, and housing” and that “[t]he
government undertook minimal efforts to address this discrimination.” In
addition, Santos’s two return trips to Guatemala are not probative of changed
country conditions; she needed to conceal her transgender identity by
wearing male clothing and cutting her hair, hire private transportation, and
hide in her parents’ home for the duration of both visits. “The case law is
clear that an alien cannot be forced to live in hiding in order to avoid
persecution.” Singh v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018).
Regarding the possibility of relocation within Guatemala, the
Government makes much of Santos’s alleged “acknowledgement” that she
could safely relocate. This is a gross mischaracterization of the record. On
direct examination before the Immigration Judge, Santos categorically denied
that she could live safely anywhere within Guatemala:
[Santos’s Counsel]: And last question. Is there
anywhere that you think that you could safely live in
Guatemala?
[Santos]: No. That whole country Guatemala it’s going
to be the same for me because there is no police in—anywhere
that is going to protect me so I’m not going to get what I’m
looking for so that’s why I want to stay in this country because
I know I’m going to have that protection here.
9
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But the Government fixates instead on a fragment of a hypothetical
considered by Santos during cross-examination:
[Government]: And did you ever try to move to a city
that was more open and free than the one that you grew up in
as a child?
[Santos]: But I don’t know where to go down there. I
don’t know who would—kind—what kind of people I’m going
to get there to live there.
[Government]: But if you know of cities that are open to
gay and lesbian and transgender lifestyles you would rather
move to those cities than the one you lived in correct?
[Santos]: Yes, probably there is another place where I
can live down there but I don’t but I try to stay here to get this
protection because besides that I have a brother living here so
I’m trying to have him help me. 3
Santos’s vague and equivocal statement in response to the Government’s
hypothetical question 4 does not constitute an admission that she could safely
relocate within Guatemala, where she was twice raped.
I respectfully dissent.
3
Although it urged this court to rely on this hypothetical, the Government during
oral argument before our court could not “recall[] that specific snippet of the record” in
which Santos categorically denied being unable to relocate safely within Guatemala. U.S.
Court of Appeals for the Fifth Circuit, 19-60355 Santos-Zacaria v. Garland, April 28, 2021,
YouTube at 20:15 (May 18, 2021), https://youtu.be/zt3ssKgUtpQ?t=1215.
4
Throughout the exchange, Santos spoke in Kanjobal, a Mayan language spoken
in parts of Guatemala, through an interpreter.
10