Ramirez-Mejia v. Lynch

• Citation: 794 F.3d 485
• Decision Date: 21 July 2015
• Docket Number: No. 14–60546.,14–60546.
• Parties: Fany Jackeline RAMIREZ–MEJIA, also known as Fany Ramirez, also known as Fany Ramirez de Quinteros, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

794 F.3d 485

Fany Jackeline RAMIREZ–MEJIA, also known as Fany Ramirez, also known as Fany Ramirez de Quinteros, Petitioner

v.Loretta LYNCH, U.S. Attorney General, Respondent.

No. 14–60546.

United States Court of Appeals, Fifth Circuit.

July 21, 2015.

Andrea Lauren Penedo (argued), Foster, L.L.P., Alexandre I. Afanassiev, Esq., Quan Law Group, P.L.L.C., Houston, TX, for Petitioner.

Carmel Morgan, Esq. (argued), Trial Attorney, Tangerlia Cox, Tangerlia Cox, for Respondents.

Petition for Review of an Order of the Board of Immigration Appeals.

Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.

Opinion

LESLIE H. SOUTHWICK, Circuit Judge:

Fany Jackeline Ramirez–Mejia's removal order was reinstated following her illegal reentry into the United States. The Board of Immigration Appeals ruled she may not apply for asylum and is ineligible for withholding of removal or protection under the Convention Against Torture. We agree and DENY the petition for review.

In March 2006, Ramirez–Mejia, a native and citizen of Honduras, was apprehended while illegally entering the United States. She was subsequently removed from the country. She returned to the United States the next month.

In January 2012, Ramirez–Mejia was arrested for theft. Her removal order was reinstated the following day. When questioned by an immigration officer, she expressed a fear of returning to Honduras. In an interview with an asylum officer, she explained that she feared she would be killed by the same individuals who killed her brother. Based on this testimony, the asylum officer referred her case to an immigration judge (“IJ”) for a hearing. At the hearing, Ramirez–Mejia testified that her brother had been murdered in May 2003. She asserted that her family attempted to file a police report, but that the police told them to “leave things the way they are....” She also alleged that, in November 2005, she began receiving anonymous notes demanding that she disclose information her brother had supposedly revealed to her. Ramirez–Mejia claimed that her failure to respond led the individuals responsible for the murder to open fire on her father's business while she was present in February 2006. The police subsequently captured one of the assailants. While in custody, the assailant allegedly threatened Ramirez–Mejia and questioned her about her brother when she went to the police station to file a report.

Ramirez–Mejia maintained that she fled Honduras in response to these events.

She also asserted that the individuals sought extortion money from her father after her departure and renewed their anonymous threats when she returned to Honduras in March 2006 following her removal from the United States.

The IJ noted that Ramirez–Mejia's testimony did not “seem plausible” but accepted it as credible. Nevertheless, the IJ concluded that Ramirez–Mejia was ineligible for withholding of removal or protection under the Convention Against Torture (“CAT”). The IJ noted that she had not demonstrated persecution based on membership in a protected group and rejected her argument that her nuclear family constituted a protected group. The IJ also concluded that Ramirez–Mejia failed to show that the Honduran government would allow her to be tortured. In January 2013, the Board of Immigration Appeals (“BIA”) dismissed Ramirez–Mejia's appeal. In February, she was removed to Honduras.

In March, Ramirez–Mejia moved to reopen her case based on the discovery of previously unavailable evidence. This evidence included: (1) an affidavit in which the wife of her brother stated that he had been a gang member and was killed by a rival gang, and that she had received threatening notes following his murder; (2) her brother's death certificate; (3) affidavits in which her parents described their extortion at the hands of the gang; (4) a criminal complaint from February 2006 describing the robbery of her father's business and subsequent capture of one of the perpetrators (no mention of gunfire is made); (5) a psychological report for Ramirez–Mejia; (6) a declaration from an expert on Central American gangs; (7) a statement in which a witness to the 2006 robbery stated that the perpetrator captured by police threatened to kill Ramirez–Mejia; (8) articles about gang violence in Honduras; (9) anonymous threatening notes; and (10) a notarized statement in which Ramirez–Mejia asserted that the Honduran public ministry advised her to return to the United States after she filed a complaint about the notes.

In May, the BIA granted the motion to reopen and remanded the case so that an IJ could determine Ramirez–Mejia's eligibility for withholding of removal and CAT protection in light of the new evidence. In June, Ramirez–Mejia applied for parole so that she could be present for the presentation of her case. The Department of Homeland Security (“DHS”) granted the request, and Ramirez–Mejia was paroled into the United States in December 2013.

In February 2014, Ramirez–Mejia presented her case. She testified about her brother's murder, the incident at her father's business, and the threats. Additionally, an expert on Central American gangs testified about gang violence in Honduras and the government's inability to control their actions. He stated that Ramirez–Mejia would face a high risk of harm or death upon returning to the country. Finally, Ramirez–Mejia's husband testified that when he visited her in Honduras after her most recent removal they rarely ventured outside due to fear.

The IJ denied withholding of removal and CAT protection. The IJ assumed the credibility of Ramirez–Mejia and her witnesses, but held that her family did not constitute a protected group, and that she had not been targeted on the basis of her familial status. The IJ also held that Ramirez–Mejia had not demonstrated that she would be tortured by the gang with the government's acquiescence. Finally, the IJ declined to consider Ramirez–Mejia's eligibility for asylum because her removal order had been reinstated. See 8 U.S.C. § 1231(a)(5) ; 8 C.F.R. § 241.8(a).

The BIA dismissed Ramirez–Mejia's appeal. She timely filed a petition for review with this court.

DISCUSSION

This court has jurisdiction to review the lawfulness of a reinstatement order but not the underlying removal order. See Ojeda–Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir.2002). We consider the BIA's order and any findings or conclusions it adopted from the IJ. Hakim v. Holder, 628 F.3d 151, 153 (5th Cir.2010). We review questions of law de novo and findings of fact for substantial evidence. Id. Under the substantial-evidence standard, reversal requires the applicant to demonstrate “that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.2006).

Ramirez–Mejia claims that she is eligible for asylum, and that the BIA erred by ruling that she could not apply for asylum due to the reinstatement of her removal order. Alternatively, she claims that her parole into the country following the reopening of her case rendered the reinstatement statute inapplicable to her. She also argues that she is eligible for withholding of removal and CAT protection.

I. Effects of Ramirez–Mejia's Reinstatement Order

An alien who illegally reenters the country after removal “is not eligible and may not apply for any relief under this chapter” and “shall be removed under the prior order at any time after the reentry.” 8 U.S.C. § 1231(a)(5). The alien is not entitled to a hearing prior to reinstatement but may make a statement before an immigration officer. 8 C.F.R. §§ 241.8(a), (b). If the alien expresses a fear of persecution or torture upon return to the country of removal, the alien is referred to an asylum officer. § 241.8(e). The involvement of asylum officers is not because of eligibility for asylum but for another purpose, i.e., consideration for “withholding of removal only” once an asylum officer determines that the fear is reasonable. Id.; § 208.31(e).

Ramirez–Mejia argues that the BIA erred by concluding that Section 1231(a)(5) and its accompanying regulations precluded her from applying for asylum following the reinstatement of her removal order because asylum is not a form of “relief” under the statute. Thus, since she is physically present in the United States and none of the limiting exceptions or conditions governing asylum apply to her, she maintains that she must be allowed to apply for asylum.See 8 U.S.C. §§ 1158(a), (b)(2).

The immigration statutes do not define the word “relief.” Nevertheless, “its familiar meaning encompasses any ‘redress or benefit’ provided by a court.” United States v. Denedo, 556 U.S. 904, 909, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009) (quoting Black's Law Dictionary 1317 (8th ed.2004)). Asylum is a form of redress from removal because, if granted, it prevents the removal from going forward. Courts routinely refer to asylum as a form of relief from removal and frequently employ the phrase “asylum relief.” See, e.g., Jama v. ICE, 543 U.S. 335, 337, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) ; Wang v. Holder, 569 F.3d 531, 540 (5th Cir.2009) ; Morales–Izquierdo v. Gonzales, 486 F.3d 484, 491 (9th Cir.2007). On the other hand, we agree with the government's statement at oral argument that withholding of removal and application of the CAT are often referred to as forms of protection, not relief. See, e.g., Wang, 569 F.3d at 535.

Under Section 1231(a)(5), an alien whose removal order is reinstated is ineligible “for any relief under this chapter....” 8 U.S.C. § 1231(a)(5) (emphasis added). “Read naturally, the word ‘any’ has an expansive meaning....” United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). When the word is not qualified by restrictive language, “there is no basis in the text for limiting” the word or clause it modifies. Id. Thus, Section 1231(a)(5), read plainly, broadly denies all forms of redress from removal, including asylum. This...