Ana Perez v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [13-60014 Affirmed ] Judge: WED , Judge: LHS , Judge: SAH Mandate pull date is 12/02/2013 [13-60014]
Date Filed: 10/10/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
October 10, 2013
Lyle W. Cayce
ANA C. PEREZ,
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 923 673
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
Ana C. Perez, a native and citizen of Guatemala, petitions this court for
review of an order of the Board of Immigration Appeals (BIA) dismissing her
appeal of the order of an immigration judge (IJ) denying asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). Perez avers
that she witnessed a murder and that the perpetrator, who was the leader of a
gang, persecuted her. She also contends that the BIA and IJ erred by finding
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 10/10/2013
her not credible and that she belongs to a social group consisting of those who
have witnessed crimes and fear retaliation.
We generally review only the decision of the BIA, but where the BIA
adopts the IJ’s decision or is affected by the IJ’s reasoning, as was the case
here,we review the IJ’s decision as well. See Wang v. Holder, 569 F.3d 531, 536
(5th Cir. 2009). Perez’s claims are reviewed under the substantial evidence
standard. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Reversal
under this standard is not warranted unless we decide “not only that the
evidence supports a contrary conclusion, but also that the evidence compels it.”
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (internal quotation marks
and citation omitted).
There is no need for us to review the challenged credibility finding
because, as the BIA noted, Perez’s claims fail even when her testimony is
believed. Perez testified that she witnessed a murder, that the perpetrator knew
that she witnessed it, and that he thereafter took actions that she perceived as
threatening. Specifically, he looked at her in a way that she found menacing, he
ran across her roof, and he stole small items from her store. These actions may
be “unfair, unjust, or even unlawful,” but they do not amount to the sort of
“extreme conduct” that constitutes persecution as that term is used in
immigration law. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
Consequently, substantial evidence supports a conclusion that Perez did not
suffer past persecution.
Substantial evidence likewise supports a conclusion that she has not
shown that she has a well-founded fear of being persecuted if she is returned to
Guatemala, as she has not shown a subjective fear of persecution that is
objectively reasonable. See Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005).
Rather, Perez has shown no more than an objectively reasonable fear of
treatment that is “unfair [or] unjust.” See Majd, 446 F.3d at 595 (5th Cir. 2006).
Perez has not shown that the record evidence compels a conclusion contrary to
Date Filed: 10/10/2013
that reached by the BIA and the IJ on the issue of whether she was entitled to
asylum. See Chen, 470 F.3d at 1134.
We reach the same result with respect to her claims for withholding of
removal and relief under the CAT. To demonstrate entitlement to withholding
of removal, the applicant must show “that it is more likely than not that [his] life
or freedom would be threatened by persecution on account of” an enumerated
factor, including his membership in a particular social group. Roy v. Ashcroft,
389 F.3d 132, 138 (5th Cir. 2004). The standard for receiving withholding of
removal is higher than that for receiving asylum. Id. Thus, because Perez has
“failed to prove [s]he was entitled to asylum, a fortiori, [s]he is ineligible for
withholding of deportation.” See Jukic v. INS, 40 F.3d 747, 750 (5th Cir. 1994).
In order to obtain CAT relief, an alien must show that it is more likely
than not that he will suffer torture if returned to his home country. 8 C.F.R.
§ 208.16(c)(2); Zhang, 432 F.3d at 344. The standard for making a showing of
torture presents a “higher bar” than that for making a showing of persecution.
Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002). Again, because Perez has not
shown the latter, she also cannot show the former. See id.
The petition for review is DENIED.
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