Rosa Sorto De Portillo, et al v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60480 Affirmed] Judge: RHB, Judge: ECP, Judge: PRO. Mandate pull date is 11/20/2017 [16-60480]

Case: 16-60480

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Date Filed: 09/27/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 16-60480
Summary Calendar

September 27, 2017
Lyle W. Cayce
Clerk

ROSA LINA SORTO DE PORTILLO; INMER ADONIAS PORTILLO-SORTO,
Petitioners
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A202 079 728
BIA No. A202 079 729
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
After conceding removability, Rosa Lina Sorto de Portillo, a native and
citizen of El Salvador, applied for asylum and withholding of removal, based
on threats and extortion attempts she and her family received in El Salvador.
She designated her minor son, Inmer Adonias Portillo-Sorto, as a derivative
beneficiary of the application. Sorto de Portillo and Portillo-Sorto seek review

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
*

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of the Board of Immigration Appeals’ (BIA) order dismissing their appeal from
the immigration judge’s (IJ) denial of their applications for relief.
Denials of asylum are reviewed for substantial evidence.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

Zhang v.

Under substantial-evidence

review, this court may not reverse a factual finding unless the evidence not
only supports a contrary conclusion, but compels it. Gomez-Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009). Because the BIA expressly agreed with the
IJ’s determinations regarding the petitioners’ eligibility for relief, both
decisions are reviewable. E.g., Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir.
2007) (“When the IJ’s ruling affects the BIA’s decision . . . we also review the
decision of the IJ”).
The IJ and BIA determined, inter alia, petitioners were not entitled to
asylum based on past persecution because they failed to establish the harm
suffered in El Salvador rose to the level of persecution; they were members of
a protected social group; or the harm they suffered was based on their
membership in a protected social group. As discussed below, and contrary to
the contentions raised by petitioners, those findings are supported by
substantial evidence.
Petitioners contend they were subject to past persecution. Along that
line, they were sent two isolated letters, nine years apart, containing threats
and extortion demands.

Petitioners also point to a rock-throwing incident,

which did not result in any physical harm and was not tied clearly to the
extortion attempts and threats against them. These incidents, without more,
do not compel a finding of persecution. E.g., Castillo-Enriquez v. Holder, 690
F.3d 667, 668 (5th Cir. 2012) (refusing to recognize economic extortion as
persecution); Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004) (declining

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to find persecution even though alien was “struck in the head with a rock while
walking to church” and exposed to “denigration, harassment, and threats”).
Nor did petitioners show they, as “small business owners who had fled
El Salvador after being extorted by gangs”, were members of a protected group.
E.g., Castillo-Enriquez, 690 F.3d at 668 (refusing to recognize persons
connected by economic status as a protected group). As an initial matter, our
court has held “business owners subject to extortion and persons antagonistic
to gangs are not protected groups under immigration law”. Mejia v. Lynch, 633
F. App’x 269, 270 (5th Cir. 2016) (citing Castillo-Enriquez, 690 F.3d at 668).
Moreover, even if small-business owners were a protected group, petitioners
did not demonstrate they were harmed based on their membership in that
group. The record shows petitioners were targeted for criminal and financial
reasons, not to punish them for their status as business owners. E.g., Garcia
v. Holder, 756 F.3d 885, 890 (5th Cir. 2014).
For those same reasons, the IJ and BIA’s ruling petitioners failed to
establish a well-founded fear of future persecution also is supported by
substantial evidence. Petitioners alleged a fear of future persecution based on
the same facts they alleged in support of their claim of past persecution, and
those facts did not show they were members of a protected group.
In addition, petitioners did not challenge the immigration courts’
determination that they could not establish a well-founded fear of persecution
because they: (1) could safely relocate within El Salvador; and (2) failed to
show the El Salvadoran government was unwilling or unable to protect them.
E.g., Singh v. Gonzales, 156 F. App’x 714, 715–16 (5th Cir. 2005) (no wellfounded fear of persecution if applicant can reasonably relocate to another part
of his country).

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Finally, the BIA and IJ’s determination that petitioners are not eligible
for withholding of removal is supported by substantial evidence. Petitioners’
failure to establish a well-founded fear of persecution upon their return to El
Salvador for purposes of asylum necessarily means they did not satisfy the
“higher standard of proof” for withholding of removal. Eduard, 379 F.3d at 186
n.2.
DENIED.

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