Bertrand v. Garland ( 2022 )


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  • Case: 19-60620      Document: 00516343740        Page: 1     Date Filed: 06/03/2022
    United States Court of Appeals
    for the Fifth Circuit                                  United States Court of Appeals
    Fifth Circuit
    FILED
    No. 19-60620                             June 3, 2022
    Lyle W. Cayce
    Clerk
    Lamy Bertrand,
    Petitioner,
    versus
    Merrick Garland, U.S. Attorney General,
    Respondent.
    Petition for Review of the Order of the
    Board of Immigration Appeals
    Agency No. A209 395 475
    Before Davis, Elrod, and Haynes, Circuit Judges.
    Jennifer Walker Elrod, Circuit Judge:
    Lamy Bertrand, a native and citizen of Haiti, petitions for review from
    an adverse decision by the Board of Immigration Appeals. Bertrand contends
    that the BIA erred in denying his requests for asylum and withholding of
    removal on the ground that the Haitian government was neither unable nor
    unwilling to prevent the violence committed against him. Because Bertrand
    does not carry his burden to show any error by the BIA, we DENY the
    petition for review.
    Case: 19-60620       Document: 00516343740          Page: 2     Date Filed: 06/03/2022
    No. 19-60620
    Lamy Bertrand applied for admission to the United States at a
    California point of entry in 2016. Upon being detained and transferred to a
    detention center in Texas, Bertrand filed applications for asylum,
    withholding of removal, and for protection under the Convention Against
    Torture (CAT). Before the Immigration Judge, Bertrand recounted several
    violent attacks allegedly committed against him and his family members in
    Haiti.
    Starting in August of 2009, Bertrand began receiving threatening
    telephone calls, which he attributed to his being a voodoo priest. He testified
    that he reported at least some of these calls, along with the phone numbers,
    to the police. About a month later, Bertrand testified that individuals entered
    his clothing shop, beat him up, cut him with a machete, and started to pour
    gasoline on him before being run off by a passing police car. Neither Bertrand
    nor any witnesses recognized his attackers. In the wake of his attack, the
    police took Bertrand to the hospital and took his report. However, Bertrand
    testified that while he was still hospitalized, his attackers returned to his shop
    and destroyed it.
    According to Bertrand, another attack occurred in October of that
    year. Bertrand testified that, while he was away from home, a “group of
    people” entered his home and killed his sister, his daughter, and another
    woman. He arrived home to see his uncle and his nephew giving a report to
    the police and a local judge, who said that they would investigate. In
    response, Bertrand left to go live with his mother in another city in Haiti,
    about four to five hours away by car.
    Bertrand testified that another incident occurred at mother’s house in
    December of 2009. He says that a group of people with “machete stick[s]”
    entered his mother’s house, beat her, and burned the house down. His
    mother was hospitalized for around seven days, but Bertrand escaped by
    2
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    No. 19-60620
    running “to the back of the house [and] jump[ing] through a window.” His
    mother filed a police report and, when she was discharged from the hospital,
    moved with Bertrand to the Dominican Republic, where they stayed together
    for four years.
    In August of 2013, Bertrand obtained a travel visa and moved to Brazil.
    And in July of 2016, Bertrand left Brazil for the United States, where he
    arrived later that year.
    The IJ denied all requested relief. The BIA affirmed and dismissed
    his appeal. Bertrand then filed a petition for review in this court. However,
    the government filed an unopposed motion to remand to the BIA for it to
    consider “whether further briefing would be appropriate in light of
    [Bertrand’s] claim that the Haitian Government was unable or unwilling to
    control private actors who threatened [Bertrand].” This court granted the
    motion and remanded the case to the BIA. On remand, the BIA reaffirmed
    its original decision, denied all forms of relief, and again dismissed the appeal.
    In relevant part, the BIA affirmed that Bertrand had not carried his burden to
    show that the Haitian government was unable or unwilling to protect
    Bertrand from his attackers.
    This petition for review follows. In it, Bertrand does not address the
    BIA’s denial of CAT relief or withholding of removal under 
    8 U.S.C. § 1231
    (b)(3). Thus, he forfeits any claim about CAT relief, as well as any
    claim about withholding of removal that does not overlap with his asylum
    claim.1 Therefore, the only questions here are whether: (1) the BIA applied
    the correct legal standard in determining that Bertrand had not shown the
    1
    United States v. Bowen, 
    818 F.3d 179
    , 192 n.8 (5th Cir. 2016) (“We have made
    clear that any issue not raised in an appellant’s opening brief is forfeited.”).
    3
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    No. 19-60620
    Haitian government to be unable or unwilling to protect him; and (2)
    substantial evidence supported its conclusion.
    This court reviews the BIA’s legal conclusions de novo, and in
    appropriate cases applies Chevron deference to precedential BIA decisions.
    Jaco v. Garland, 
    24 F.4th 395
    , 401 (5th Cir. 2021).2 “We use the substantial
    evidence standard to review the IJ’s factual conclusion that an alien is not
    eligible for asylum.” Zhao v. Gonzales, 
    404 F.3d 295
    , 306 (5th Cir. 2005).
    “Under this deferential standard, we will grant a petition for review only
    when the record evidence ‘compels’ a conclusion contrary to the agency’s
    determination.” Gjetani v. Barr, 
    968 F.3d 393
    , 396 (5th Cir. 2020) (quoting
    Zhao, 
    404 F.3d at 306
    ); Wang v. Holder, 
    569 F.3d 531
    , 536–37 (5th Cir. 2009).3
    “The applicant has the burden of showing 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).4
    2
    Chevron deference is not relevant here because the BIA’s decision was non-
    precedential.
    3
    This is true even when, as here, we must accept the alien’s version of the facts
    because the IJ did not make a credibility determination. See Gjetani, 968 F.3d at 396, 397
    n.2; Zhao, 
    404 F.3d at 306
    . The parties do not dispute the standard of review and therefore
    forfeit any challenge to it. Bowen, 818 F.3d at 192 n.8. In any event, for the reasons that
    follow, the BIA did not err even under de novo review. Texas v. United States, 
    809 F.3d 134
    ,
    178 n.158 (5th Cir. 2015) (“This circuit follows the rule that alternative holdings are binding
    precedent and not obiter dictum.” (quoting United States v. Potts, 
    644 F.3d 233
    , 237 n.3
    (5th Cir. 2011))).
    4
    The Supreme Court has recently emphasized the “very limited role” for courts
    of appeals in reviewing the Attorney General’s discretionary-relief decisions. Patel v.
    Garland, 
    142 S. Ct. 1614
    , 1618, 1622–23 (2022) (holding that 
    8 U.S.C. § 1252
    (a)(2)(B)
    precludes federal-court review of factual findings made in the discretionary-relief
    proceedings enumerated in § 1252(a)(2)(B)(i)). Nonetheless, asylum proceedings under
    § 1158(a) are not listed in § 1252(a)(2)(B)(i) and are expressly excepted from a companion
    provision, § 1252(a)(2)(B)(ii). So we may review factual findings in asylum cases, but the
    4
    Case: 19-60620         Document: 00516343740               Page: 5      Date Filed: 06/03/2022
    No. 19-60620
    The attorney general may grant asylum to “refugees.” Orellana-
    Monson v. Holder, 
    685 F.3d 511
    , 518 (5th Cir. 2012).                        Among other
    requirements, refugees must either have suffered past persecution or have a
    well-founded fear of future persecution. 
    Id.
     (citing 
    8 C.F.R. § 208.13
    (b)).
    Persecution refers to harm inflicted either by the government or by private
    actors whom the government “is unable or unwilling to control.” E.g.,
    Sanchez-Amador v. Garland, 
    30 F.4th 529
    , 533 (5th Cir. 2022). Where private
    actors are concerned, the applicant must show that the government
    condoned the private violence “or at least demonstrated a complete
    helplessness to protect the [applicant].” Shehu v. Gonzales, 
    443 F.3d 435
    , 437
    (5th Cir. 2006) (quoting Galina v. INS, 
    213 F.3d 955
    , 958 (7th Cir. 2000)).
    This requires showing “that an alien’s home government has ‘more than
    difficulty . . . controlling private behavior.’” Gonzales-Veliz v. Barr, 
    938 F.3d 219
    , 233 (5th Cir. 2019) (quoting Matter of A-B-, 
    27 I. & N. Dec. 316
    , 337 (AG
    2018) (A-B-I), vacated by Matter of A-B-, 
    28 I. & N. Dec. 307
     (AG 2021) (A-
    B-III), and Menjivar v. Gonzales, 
    416 F.3d 918
    , 921 (8th Cir. 2005) (quoting
    In re McMullen, 
    17 I. & N. Dec. 542
    , 546 (BIA 1980))).5
    “substantial evidence” standard strictly limits our ability to disturb them. 
    8 U.S.C. § 1252
    (b)(4)(B). Furthermore, “[t]he Supreme Court recently clarified that we have
    jurisdiction to consider mixed questions of law and fact [under § 1252(a)(2)(D)], holding
    that ‘the application of law to undisputed or established facts is a “questio[n] of law”
    within the meaning of § 1252(a)(2)(D),’” which excludes “constitutional claims” and
    “questions of law” from § 1252(a)(2)(B)’s limitations on judicial review. Alexis v. Barr,
    
    960 F.3d 722
    , 730 (5th Cir. 2020) (second alteration in original) (quoting Guerrero-Lasprilla
    v. Barr, 
    140 S. Ct. 1062
    , 1069 (2020)); 
    8 U.S.C. § 1252
    (a)(2)(D).
    5
    Since the parties’ briefs were filed, the Attorney General vacated A-B-I, including
    its “unable or unwilling to control” analysis, in A-B-III pending further rulemaking.
    Nonetheless, this court affirmed in Gonzales-Veliz that A-B-I merely applied the law of this
    circuit. Gonzales-Veliz, 938 F.3d at 233; Meza Benitez v. Garland, No. 19-60819, 
    2021 WL 4998678
    , at *4 n.1 (5th Cir. 2021) (“[A-B-I] left unchanged the prior law in the Fifth
    Circuit . . . .”). Because A-B-I applied the legal standard also required by this court’s
    5
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    No. 19-60620
    The BIA correctly applied this legal standard, and substantial
    evidence supports its conclusion. The police responded to Bertrand’s
    September 2009 attack, took Bertrand to the hospital, and took a report about
    the incident. The police, along with a judge, responded to the October 2009
    attack on Bertrand’s home, took a report, and said that they would
    investigate. And the police similarly responded to the December 2009 attack
    on his mother’s house—in an entirely different city—and took her report. In
    the BIA’s words, the government “interviewed witnesses, came to the scene
    of a crime multiple times, and took the respondent to the hospital when he
    was attacked.”
    Bertrand has not carried his burden of “showing that the evidence is
    so compelling that no reasonable factfinder” could agree with the BIA’s
    decision. Chen, 
    470 F.3d at 1134
    . The first two alleged attacks occurred
    within roughly one month of each other. The third attack occurred roughly
    two months later in an entirely different city.              And, crucially, neither
    Bertrand nor any witnesses were ever able to identify the attackers. A
    government is not “unable or unwilling” to protect against private violence
    merely because it has difficulty solving crimes or anticipating future acts of
    violence. Under these circumstances, substantial evidence confirms the
    conclusions of the IJ and the BIA that the Haitian government was not unable
    or unwilling to protect him.6
    precedents, the Attorney General’s vacation of A-B-I in A-B-III does not change the
    “unable or unwilling” standard reflected in Gonzales-Veliz and applied in this circuit.
    Sanchez-Amador, 30 F.4th at 533 n.3 (“[O]ur caselaw on the ‘unable or unwilling’ standard
    remains intact [post-A-B-III].”).
    6
    Bertrand contends that the BIA impermissibly departed from a precedential BIA
    decision, In re O-Z- & I-Z-, 
    22 I. & N. Dec. 23
     (BIA 1998). In that case, a father and son
    claimed to have been persecuted in Kharkiv, Ukraine, on the basis of their Jewish
    6
    Case: 19-60620         Document: 00516343740              Page: 7       Date Filed: 06/03/2022
    No. 19-60620
    Bertrand and amici law professors contend that this circuit and others
    have erred by interpreting the “unable to control” standard to mean
    “complete helplessness.”7 But these are simply different articulations of the
    same standard.8 And, in any event, this panel is bound by precedent to the
    nationality. 
    Id. at 23
    . The alleged persecution consisted primarily of several violent
    encounters between February 1992 and July 1993. 
    Id. at 24
    . And the father “reported the
    [1992] burglary as well as the January 1993 and July 1993 assaults to the police.” 
    Id.
     Noting
    that the police “took no action beyond writing a report,” the BIA concluded that the
    “Ukrainian Government was unable or unwilling to control the respondent’s attackers or
    protect him.” 
    Id. at 26
    .
    O-Z- & I-Z- is distinguishable on several grounds. First, the BIA in O-Z- & I-Z- did
    not specify whether its holding rested on either the government’s unwillingness to protect
    the respondents or its inability to do so. 
    Id.
     The failure to do anything beyond writing
    reports is stronger evidence of an unwillingness to help, and a government will likely only
    be “unable” to help if it is first willing to do so. In this case, there is evidence that the
    Haitian government was willing to help Bertrand. As the BIA recognized, the government
    did more than write reports. The police took Bertrand to the hospital, interviewed
    witnesses, and visited the scene of a crime on multiple occasions.
    Second, the persecution in O-Z- & I-Z- occurred over a longer period of time and
    apparently within the same geographic area. 
    Id. at 24
    . In contrast, the persecution in this
    case occurred within several months and in different cities. Furthermore, there was
    evidence that the persecution in O-Z- & I-Z- was linked to a specific “nationalistic, pro-
    Ukrainian independence movement.” 
    Id.
     Here, while Bertrand did testify to turning over
    the phone numbers associated with his threatening calls, neither he nor any witnesses were
    ever able to identify any of his attackers. For these reasons, the BIA was justified in
    distinguishing O-Z- & I-Z-.
    7
    Gonzales-Veliz, 938 F.3d at 233; Shehu, 
    443 F.3d at 437
    ; see also Garcia-Garcia v.
    Mukasey, 294 F. App’x 827, 829 (5th Cir. 2008).
    8
    Both articulations “accomplish the same purpose”; they both require proof that
    “an alien’s home government has ‘more than difficulty . . . controlling private behavior.’”
    Gonzales-Veliz, 938 F.3d at 233 (quotation omitted). To that end, both rightly distinguish
    between the standard difficulties inherent in law enforcement and an utter inability to
    prevent private violence. As the BIA said on remand, “[a]n unsuccessful investigation is
    not conclusive evidence that the government was unable or unwilling to protect the
    respondent.”
    7
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    “complete helplessness” articulation. Mercado v. Lynch, 
    823 F.3d 276
    , 279
    (5th Cir. 2016) (“Under our rule of orderliness, ‘one panel of our court may
    not overturn another panel’s decision, absent an intervening change in the
    law. . . .’” (quoting Jacobs v. Nat’l Drug Intelligence Ctr., 
    548 F.3d 375
    , 378
    (5th Cir. 2008))).9
    Moreover, we hold that under either articulation of the relevant
    standard, the BIA did not err in concluding that Bertrand does not qualify for
    asylum. And because Bertrand does not qualify for asylum, he necessarily
    cannot meet the more stringent showing required for withholding of removal.
    Orellana-Monson, 685 F.3d at 522.
    *        *         *
    For these reasons, the petition for review is DENIED.
    Bertrand and amici law professors urge courts to instead focus on whether the
    government can provide the applicant with “effective protection.” But the “unable or
    unwilling” standard already does that. This standard looks at whether the government is
    “completely helpless” to protect the applicant, i.e., completely helpless to provide the
    applicant with effective protection. See Gonzales-Veliz, 938 F.3d at 233–34 (explaining that
    the government must demonstrate a “complete helplessness” to protect the victim). Yet
    even so, standard investigatory constraints—like insufficient evidence—that impede the
    swift resolution of investigations are not conclusive evidence that the government is
    “unable or unwilling” to protect an applicant from future violence. See id. at 233 (stating
    that the home government must have “more than difficulty . . . controlling private
    behavior” (quotation omitted)); see also Sanchez-Amador, 30 F.4th at 534 (“The fact that
    the police could not complete their investigation to Sanchez-Amador’s satisfaction within
    a single week does not compel the conclusion that they were unable or unwilling to help
    her.”).
    9
    See supra note 7.
    8