Giron-Giron v. Garland

• Decision Date: 25 January 2022
• Docket Number: 21-3472
• Parties: JOSE ENMANUEL GIRON-GIRON, aka Jose Emanuel Giron-Giron, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

JOSE ENMANUEL GIRON-GIRON, aka Jose Emanuel Giron-Giron, Petitioner,
v.
MERRICK B. GARLAND, Attorney General, Respondent.

No. 21-3472

United States Court of Appeals, Sixth Circuit

January 25, 2022

NOT RECOMMENDED FOR PUBLICATION

ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

Before: SUTTON, Chief Judge; GUY and DONALD, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge.

Petitioner, a native and citizen of El Salvador, entered the United States unlawfully after two encounters with gang members. During removal proceedings, the Immigration Judge (IJ) denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals (BIA) affirmed, without an opinion. Because petitioner has not identified anything that compels a contrary result, the petition for review is denied.

I.

In May 2016, petitioner entered the United States through Texas without a valid entry document. Three months later, the Department of Homeland Security (DHS) served petitioner with a Notice to Appear (NTA) and filed it with the immigration court. Petitioner was charged in the NTA with removal from this country for failure to possess a valid entry document and travel

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document at the time of application for admission, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). The NTA stated the place petitioner was to appear and noted that the date and time would be set later.

In August 2016, petitioner appeared before an IJ, without counsel. The IJ offered to continue the case to allow petitioner to retain counsel, but petitioner responded that he wished "to proceed [with] the case right now." During the hearing, petitioner admitted that he received the NTA and had entered this county unlawfully. The IJ thus sustained the charge of removal. Petitioner then applied for asylum and withholding of removal in October 2016.

Petitioner retained counsel and submitted an updated application in November 2016, adding a request for protection under the Convention against Torture (CAT). Petitioner then filed his written pleading, in which he conceded the charges against him. Petitioner submitted his second updated application for asylum, withholding of removal, and protection under the CAT in March 2019. In his application, petitioner represented that neither he nor any family members have ever been associated with a political party, student group, labor union, religious organization, military or paramilitary group, ethnic group, human rights group, or the media in El Salvador.

Nevertheless, at the hearing held on April 4, 2019, petitioner argued he was entitled to relief because he belonged to two social groups: (1) "persons who are prosperous in El Salvador"; and (2) "persons who resist[] the gangs in El Salvador." Before testifying, petitioner signed his application for relief.

Petitioner then testified about past threats and fear of future harm. When he lived in Ocoro, Morazon, El Salvador, he worked in mail and receiving at a store. He was paid $500 (USD) per month, which was more money than other people made in El Salvador. He testified that people in his community knew that he was "prosperous" because they would "watch [him] at work and [he]

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had more things than other people," such as a motorcycle. As a result, petitioner explained that on two occasions, in March and April of 2016, gang members approached him on his way home from work, pointed a gun to his head, and threatened to kill him if he did not pay the gang members $100 per month. He allegedly went to the police in March of 2016, but a police report was not filed. To initiate the investigation process, the police asked petitioner for more information, such as names, pictures, telephone numbers, or the addresses where the gang members lived. Petitioner did not have any of that information, so he left and never returned to the police because, in his view, he "saw that they were not doing anything for [him]."

Because of the gang encounters, a doctor in El Salvador allegedly prescribed petitioner medication in April 2016. Petitioner paid the gang members for two months (March and April), and then fled to the United States in May 2016. Since leaving El Salvador, his family and former boss have allegedly told him that the gang members continue to look for him at his former job, and his family also reported that gang members have called his old telephone number. Petitioner claimed that he would be harmed if he returned to El Salvador because he did not continue to pay the gang.

At the end of the hearing, the IJ issued an oral decision denying the relief petitioner requested. First, the IJ found petitioner did not experience "persecution" in El Salvador. Second, the IJ found that, even if the "isolated threats" he received constitute persecution, the threats were not on account of his membership in a protected, cognizable group. Thus, although petitioner had a subjective fear of future persecution if he returned to El Salvador, the IJ concluded that his fear is not objectively reasonable. Third, the IJ found petitioner failed to show that, if removed to El Salvador, it is more likely than not that he will be tortured at the hands of the Salvadoran government or someone acting with their consent or acquiescence.

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Petitioner appealed to the BIA. The BIA affirmed the IJ's decision without opinion in April 2021. See 8 C.F.R. § 1003.1(e)(4). The instant petition for review followed.

II.

"Where the BIA affirms without opinion the decision of the IJ," as in this case, "this court directly reviews the decision of the IJ" as the final agency decision. Sanusi v. Gonzales, 474 F.3d 341, 345 (6th Cir. 2007). "Questions of law are reviewed de novo, but substantial deference is given to the BIA's interpretation of the [Immigration and Nationality Act (INA)] and accompanying regulations." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). "[F]indings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

In the end, we must uphold the immigration court's ultimate determination on the relief requested if it is supported by "substantial evidence." Kukalo v. Holder, 744 F.3d 395, 399-400 (6th Cir. 2011); Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004). Substantial evidence "means-and means only-'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). That is, we may reverse only if the decision was "manifestly contrary to law," 8 U.S.C. § 1252(b)(4)(C), such that "the evidence not only supports a contrary conclusion, but indeed compels it," Haider v. Holder, 595 F.3d 276, 281 (6th Cir. 2010)...