Summary
The Fifth Circuit denied review of a BIA decision rejecting asylum, withholding of removal, and CAT relief for Honduran petitioners fearing MS-13. The court held that the challenge to immigration court jurisdiction based on a defective Notice to Appear was unexhausted and that untranslated words in the transcript caused no substantial prejudice. The court found substantial evidence supported the BIA's rejection of a well-founded fear based on imputed political opinion or membership in a particular social group (rejecting "child soldiers from Honduras" and citing precedent that young men resisting gang recruitment is not a cognizable group). The CAT claim failed because petitioners did not show it was more likely than not they would be tortured by or with the acquiescence of Honduran officials.
Topics
Practice areas
Questions Presented
- Whether the petitioners' due process rights were violated by untranslated words in the hearing transcript.
- Whether the petitioners established a well-founded fear of future persecution on account of an imputed political opinion or membership in a particular social group.
- Whether the petitioners qualified for relief under the Convention Against Torture.
Holdings
- This court lacks jurisdiction to consider the argument because the petitioners failed to exhaust it before the BIA.
- The petitioners failed to show substantial prejudice because the meaning of the eight untranslated words was clear from context.
- The petitioners failed to establish that the record compels the conclusion that the gang would persecute them because of that political opinion, rather than because of refusal to fight.
- The rejection of the proposed social group was supported by substantial evidence because the petitioners made no argument that Ochoa-Castillo was an actual child soldier.
- The IJ's and BIA's findings that the petitioners failed to show it was more likely than not they would be tortured were supported by substantial evidence.
Key quotations
“this court may not reverse the BIA's factual findings unless the evidence compels it.” (2)
“has to establish that the record . . . compels the conclusion that he has a well-founded fear that the [gang] will persecute him because of that political opinion, rather than because of his refusal to fight with them.” (3)
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (4)
“Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.” (4)
Factual background
Maria De La Paz Castillo-Cruz and Kevin Abimael Ochoa-Castillo, natives of Honduras, petitioned for review of a BIA order denying their application for asylum, withholding of removal, and relief under the Convention Against Torture. They claimed a well-founded fear of persecution based on an imputed political opinion (anti-gang) and membership in a particular social group (child soldiers from Honduras). The IJ and BIA found that they failed to establish a well-founded fear and that the evidence did not compel a finding of past persecution or a clear probability of future torture.
Procedural history
The Board of Immigration Appeals (BIA) affirmed the Immigration Judge's denial of relief from removal. Petitioners challenge the denial on four grounds: defective notice to appear, due process violation from untranslated transcript, failure to establish well-founded fear of persecution, and failure to qualify for relief under the Convention Against Torture.