Martinez v. Garland
| Decision Date | 08 December 2022 |
| Docket Number | 21-60033 |
| Parties | Ariana Reyes Martinez; Diego F. Suarez Reyes, Petitioners, v. Merrick Garland, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A206 912 298, A206 912 299
Before HIGGINBOTHAM, DUNCAN, and ENGELHARDT, Circuit Judges.
Petitioners Ariana Reyes Martinez and her minor child Diego F. Suarez Reyes (collectively, "Reyes Martinez"), natives and citizens of Mexico, petition for review of the Board of Immigration Appeals' ("BIA") dismissal of their appeal. That appeal challenged an Immigration Judge's ("IJ") denial of Reyes Martinez's application for asylum and withholding of removal under the Immigration and Nationality Act and the Convention Against Torture ("CAT"). We deny the petition.
Reyes Martinez entered the United States on or about October 17 2014. On October 31, 2014, the Department of Homeland Security ("DHS") served Reyes Martinez with a Notice to Appear, charging her with being inadmissible to and removable from the United States. Appearing before an IJ on November 12, 2014, Reyes Martinez admitted to the facts supporting removability. However, she requested asylum and withholding of removal, citing (1) her membership in a particular social group and (2) CAT.[1]
In support of these requests, Reyes Martinez asserted that while in Mexico, she received several phone calls from members of an armed gang. In one call, the gang members threatened to kill her or her son if she did not pay them 70,000 pesos. Eventually, after receiving a note threatening her if she did not pay, Reyes Martinez decided to leave Mexico. She did not believe she could go to another part of the country because she would have no family support and did not think the police would protect her. The night that Reyes Martinez planned to leave, she discovered that the phone line to her in-laws' home was dead and that the electricity was cut off to their home. Reyes Martinez ran to a neighbor's house and, once inside, saw men with flashlights looking into her in-laws' home.
According to Reyes Martinez, the gang members had demanded money from her because they knew her husband was sending her money from the United States. She asserted that women were vulnerable in Mexico and that gang members discriminate against them more readily. She also claimed fear of going to the police, citing stories of others killed by gang members or corrupt police officers, as well as the fact that her father-in-law, a government official, advised her not to report the threats. Moreover, if she returned to Mexico, she feared the gangs would kill her and harm her children because she had refused to comply with their demands. She cited the fact that her mother-in-law saw a truck outside, watching their home, after Reyes Martinez had left the country-surveillance that apparently stopped when the drivers realized Reyes Martinez was no longer living there. At the same time, Reyes Martinez conceded that nobody living with her had been physically harmed and that she had never been threatened face-to-face.
Although finding Reyes Martinez credible, the IJ concluded she was not entitled to relief on any ground. The instances of intimidation did not, in the IJ's view, rise to the level of harm requisite for persecution. But even if they did, the IJ found that Reyes Martinez would not have been persecuted as a member of a particular social group ("PSG"). See 8 U.S.C. 1231(b)(3)(A). Reyes Martinez argued that she belonged to two groups qualifying as PSGs: (1) mothers in Mexico with young children who have refused and do not comply with cartel extortion demands and (2) female homemakers in Mexico with young children who do not comply with cartel extortion demands. The IJ found neither proposed group was a valid PSG because they were not particular or readily identifiable as a group in society.
The IJ also determined that Reyes Martinez was not entitled to relief under CAT. While sympathizing with her plight, the IJ nevertheless found that the harm did not rise to the high level of extreme, cruel, and inhuman treatment needed to constitute torture. Combined with insufficient evidence that the harms were the result of the Mexican government's instigation or acquiescence, the IJ found that Reyes Martinez failed to show it was more likely than not that she would be tortured if returned to Mexico.
Upholding the IJ's rulings, the BIA agreed that Reyes Martinez's proposed social groups were not valid PSGs. And in any event, no nexus was shown between Reyes Martinez's harms and her proposed groups-rather, the IJ had found she was targeted for economic gain. The BIA also agreed no CAT claim was proven because the harms alleged did not rise to the level of torture, nor did they arise from the Mexican government's acquiescence.
Reyes Martinez now appeals the BIA's decision.
We conduct a de novo review of the BIA's conclusions of law. Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir. 2019). If such "a conclusion embodies the [BIA's] interpretation of an ambiguous provision of a statute that it administers," our review is deferential. Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). We review fact findings for substantial evidence. The agency need not "address evidentiary minutiae or write any lengthy exegesis" as long as its opinion reflects "meaningful consideration of the relevant substantial evidence supporting the alien's claims." Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996). Therefore, we will not disturb the factual findings "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252 (b)(4)(B); see also Qorane v. Barr, 919 F.3d 904, 909 (5th Cir. 2019).
Reyes Martinez argues that the BIA erred in rejecting her PSG and CAT claims. We address each claim in turn.
We begin with Reyes Martinez's claim based on her proposed PSGs. The term "particular social group" is not defined by statute or regulations.
Instead, the BIA has interpreted the term as containing three criteria. A PSG must be "(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." Matter of M-E-V-G-, 26 I.& N. Dec. 227, 237 (BIA 2014).
Reyes Martinez contends the BIA erred in concluding her proposed PSGs were invalid under these criteria. She argues the groups are based on her immutable characteristic as a female and a mother; sufficiently particular because they are defined by factors such as nationality and failure to comply with gang demands; and socially distinct in light of the widely held attitudes of machismo that pervade Mexican society and thus encourage gang members to target women. Reyes Martinez also rejects the idea that her proposed groups are defined exclusively by reference to harm, arguing they were based on her resistance to extortion and not the mere fact that she suffered extortion.
We disagree. Reyes Martinez has not shown that the record compels a conclusion that she has presented a valid PSG. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). As the BIA found, a PSG must be particular and readily identifiable as a group in society. See Orellana-Monson v. Holder, 685 F.3d 511, 519 (5th Cir. 2012). But Reyes Martinez's proposed groups- "mothers" and "female homemakers"-are substantially overbroad. See M-E-V-G-, 26 I. &N. Dec. at 239 (). Moreover, the one factor that distinguishes the groups-denying cartel demands-defines them by reference to the harm they suffer, rendering them impermissibly circular. See Orellana-Monson, 685 F.3d at 518-19 . Finally, we have consistently held that an antagonistic relationship with gangs is not a basis for establishing a PSG. See id. at 521-22 (); see also Morales-Duran v. Barr, 770 Fed.Appx. 200, 201 (5th Cir. 2019) (unpublished) (per curiam) ().
Because the evidence does not compel a conclusion contrary to the BIA's decision, we decline to disturb it. See Wang v. Holder, 569 F.3d 531, 536-37 (5th Cir. 2009).[2]
We turn to Reyes Martinez's CAT claim. To be eligible for CAT relief, she must show: "(1) 'it [is] more likely than not that [she] will be tortured upon return to [her] homeland'; and (2) 'sufficient state action involved in that torture.'" Tabora Gutierrez v. Garland, 12 F.4th 496, 503 (5th Cir. 2021) (quoting Iruegas-Valdez v. Yates, 846 F.3d 806, 812 (5th Cir. 2017)); see 8 C.F.R. § 1208.16(c)(2). "Torture" refers to the intentional infliction of severe physical or mental pain and suffering. 8 C.F.R. § 1208.18(a)(1). It includes "prolonged mental harm caused by or resulting from . . . [t]he threat of imminent death." Id. § 1208.18(a)(4)(iii).
Importantly, "the pain or suffering must be 'inflicted by or at the instigation of or with the...
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