Revencu v. Sessions

• Decision Date: 12 July 2018
• Docket Number: No. 16-60851,16-60851
• Parties: Victor REVENCU, Petitioner v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

895 F.3d 396

Victor REVENCU, Petitioner

v.Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent

No. 16-60851

United States Court of Appeals, Fifth Circuit.

Filed July 12, 2018

REVISED August 2, 2018

Victor Revencu, Pro Se.

Liza S. Murcia, Esq., Janette Louise Allen, Esq., Trial Attorney, Office of Immigration Litigation, Anthony Cardozo Payne, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before KING, SOUTHWICK, and HO, Circuit Judges.

KING, Circuit Judge:

Victor Revencu, a native and citizen of Moldova, petitions for review of the decision of the Board of Immigration Appeals, upholding the immigration judge's denial of his application for withholding of removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3). The immigration judge concluded—and the Board of Immigration Appeals affirmed—that Revencu had not demonstrated that he was persecuted on account of his actual or imputed political opinion or membership in a particular social group. We DISMISS the petition for review with respect to Revencu's arguments that we lack jurisdiction to review. In all other respects, the petition is DENIED.

I.

Victor Revencu is a native and citizen of Moldova. In April 2010, he was removed to Moldova after attempting to enter the United States with an invalid B1/B2 visitor visa. About five years later, on May 9, 2015, Revencu illegally entered the United States. On the same day, the Department of Homeland Security ("DHS") issued a decision to reinstate his April 2010 removal order pursuant to 8 U.S.C. § 1231(a)(5). However, Revencu was not immediately deported, as he expressed fear of returning to Moldova. After interviewing Revencu, an asylum officer found that Revencu had a reasonable fear of persecution in Moldova. Subsequently, Revencu submitted an application for withholding of removal under 8 U.S.C. § 1231(b)(3) and for protection pursuant to the Convention Against Torture ("CAT").¹

In April 2016, an immigration judge ("IJ") held a hearing to determine the merits of his application. In a decision issued in June 2016, the IJ found that Revencu's claim of fear of return to Moldova was based on four incidents. The first two involved only his then-future wife. The third and fourth involved Revencu himself and occurred in December 2014. On December 15, the police summoned him to the local station. At the station, several officers questioned Revencu. One officer stated that Revencu was seen driving people to various protests organized by Renato Usati, the leader of a recently formed opposition party. The officers demanded that Revencu tell them about Usati. Revencu denied knowledge of Usati, explaining that he was merely a bus driver and not a supporter of Usati. The officers then asked Revencu to join Usati's party so that he could inform them about the party's activities. Revencu told them that he did not want to get involved. After advising him to consider their request, the officers permitted him to leave.

Four days later, Revencu was pulled over by several officers. One officer directed the others to "get to work." The officers then searched Revencu's car and produced a package of white powder and a knife. Though Revencu denied ownership of those items, he was taken to the police station. Revencu was then placed in a cell with only a chair. He was beaten by the officers and suffered a fractured finger

, fractured arm, and head injury. The next day, he was taken to the room in which he had been questioned about Usati. An officer told Revencu that the knife allegedly found in his car had been used in two murders. Revencu stated that he had neither seen the knife before nor had the knife been in his car. The officers then told Revencu that his troubles would "go away" if he agreed to be their informant in Usati's party. Though he had no intention of actually being their informant, Revencu agreed because he knew Usati was out of the country at that time and the police were planting evidence on and arresting members of Usati's party. The officers then released him. About a month later, they called to tell him that Usati was returning and that he needed to get ready to be an informant. To avoid becoming an informant, Revencu left for the United States with his then-wife a few months later.

Based on these factual findings, the IJ denied Revencu's application for withholding of removal and CAT protection. With respect to withholding of removal, the IJ agreed with DHS's concession that the harm Revencu suffered would constitute persecution if it was motivated by—as Revencu claimed—his political opinion or membership in a particular social group. However, the IJ concluded that Revencu never expressed a political opinion nor did the police impute to Revencu any political opinion. The IJ also stated that Revencu failed to identify his membership in a particular social group and, to the extent that the group was family members of Roma (since his wife is of Roma ethnicity), the record contained no evidence that the persecution his wife suffered was directed at him. Finally, the IJ concluded that the harm Revencu suffered did not amount to torture under the CAT.

Revencu then appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), arguing that withholding of removal was warranted because the harm suffered was based on his political opinion or membership in a particular social group. The BIA found that the IJ did not clearly err with respect to its determinations regarding political opinion and membership in a particular social group and dismissed his appeal. Subsequently, Revencu filed a petition for review of the BIA's decision in this court.

II.

On appeal, Revencu makes four arguments. First, he contends that he was persecuted based on political views imputed to him by the police. Second, he argues that he will be persecuted for being in the particular social group of family members of Roma. Third, he challenges the IJ's determination that his mistreatment was not torture under the CAT. Finally, he asks this court to remand to the BIA so that the BIA can consider a derivative asylum claim based on his wife's recent grant of asylum.

We do not have jurisdiction over his last two contentions. "[W]e have jurisdiction to determine our own jurisdiction." Omari v. Holder , 562 F.3d 314, 318 (5th Cir. 2009). We have jurisdiction to review a final order of removal only if the petitioner has exhausted all administrative remedies available. See 8 U.S.C. § 1252(a)(1), (d). A petitioner fails to exhaust such remedies "as to an issue if [he] do[es] not first raise the issue before the BIA." Omari , 562 F.3d at 318. "[F]ailure to exhaust an issue deprives this court of jurisdiction over that issue." Id. at 319. Here, Revencu did not contest the IJ's determination regarding torture under the CAT to the BIA. Nor did he present his derivative asylum claim based on his wife's grant of asylum to the BIA. Thus, "[h]is failure to do so is a failure to exhaust, jurisdictionally barring us from addressing the merits" of his last two arguments. Id.

As Revencu exhausted his first two contentions, we have jurisdiction to address them. "We review the BIA's decision and only consider the IJ's decision to the extent that it influenced the BIA." Shaikh v. Holder , 588 F.3d 861, 863 (5th Cir. 2009). We review questions of law de novo and factual findings under the substantial evidence standard. Id. Whether the petitioner has proven eligibility for withholding of removal or CAT protection is a factual finding that we review under the substantial evidence standard. See Chen v. Gonzales , 470 F.3d 1131, 1134 (5th Cir. 2006). The substantial evidence standard "requires only that the BIA's decisions be supported by record evidence and be substantially reasonable." Shaikh , 588 F.3d at 863 (quoting Omagah v. Ashcroft , 288 F.3d 254, 258 (5th Cir. 2002) ). Under this standard, "reversal is improper unless we decide ‘not only that the evidence supports a contrary conclusion, but also that the evidence compels it.’ " Chen , 470 F.3d at 1134 (quoting Zhao v. Gonzales , 404 F.3d 295, 306 (5th Cir. 2005) ). "[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Arif v. Mukasey , 509 F.3d 677, 679 (5th Cir. 2007) (per curiam) (quoting Consolo v. Fed. Mar. Comm'n , 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) ). "The applicant has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Chen , 470 F.3d at 1134.

"Under 8 U.S.C. § 1231(b)(3)(A), withholding of removal is a mandatory form of relief if an alien's life or freedom would be threatened in the country of removal because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Shaikh , 588 F.3d at 864. As Revencu filed his application for withholding of removal in 2015, the REAL ID Act applies. Pub. L. 109-13, 119 Stat. 231 (2005) (codified in parts of 8 U.S.C. §§ 1229a(c), 1158(b) ). "[U]nder the REAL ID Act, an alien must ‘establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.’ " Shaikh , 588 F.3d at 864 (quoting 8 U.S.C. § 1158(b)(1)(A) ). The statutorily protected ground cannot be "incidental, tangential, superficial, or subordinate to another reason for harm." Id. (quoting Matter of J–B–N & S–M– , 24 I. & N. Dec. 208, 212 (B.I.A. 2007) ). "Persecution has been construed as requiring a showing that ‘harm or suffering will be inflicted upon [the petitioner] in order to punish [him] for possessing a belief or characteristic a persecutor sought to overcome.’ " Roy v. Ashcroft , 389 F.3d 132, 138 (5th Cir. 2004) (per curiam) (second alteration in original) (quo...