Monica Ramos Lara v. Loretta Lynch , 833 F.3d 556 ( 2016 )

Case: 15-60126 Document: 00513640793 Page: 1 Date Filed: 08/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60126 FILED
August 17, 2016
MONICA ROCIO RAMOS LARA, Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
In January 2010, Monica Rocio Ramos Lara, a native and citizen of
Bolivia, entered the United States from Mexico seeking asylum. The
Immigration Judge denied her asylum application after holding she was
ineligible under the firm-resettlement bar. The Board of Immigration Appeals
dismissed Ramos Lara’s appeal because she failed to establish the applicability
of an exception to that bar. We agree and DENY the petition for review.
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No. 15-60126
FACTUAL AND PROCEDURAL BACKGROUND
Monica Rocio Ramos Lara is a native and citizen of Bolivia. In 2005,
Ramos Lara moved to Mexico from Bolivia. She claims the Bolivian military
threatened her and her husband because she was not an indigenous native and
her husband was a white male from the United States. She legally resided and
worked in Mexico for the next five years as a substitute English teacher. She
obtained a work visa from the Mexican government, which she last renewed in
2009. Her husband traveled back and forth between the United States, where
he was employed, and Mexico, where Ramos Lara lived with their two children.
Her husband is a citizen of the United States. The only evidence of his right
to reside in Mexico is his wife’s cryptic statement that “just recently [Mexican
authorities] sent the residency to my husband.” While living in Mexico, Ramos
Lara made two trips from Mexico to Bolivia and the United States. She was
permitted freely to return to Mexico after each trip outside the country. She
had yet to apply for permanent residency, but she asserted that she was
eligible and believed Mexico would have granted her residency.
A few years after her move to Mexico, Ramos Lara claims a man named
Jesse Ramirez approached her husband and asked him to smuggle drugs into
the United States. He refused. According to Ramos Lara, Ramirez vaguely
threatened that something bad was going to happen due to her husband’s
refusal. Shortly afterwards, her husband was detained at the border and
arrested after agents found marijuana in his car. Ramos Lara is unclear as to
what happened with her husband’s criminal case following his arrest. She
claims after her husband’s arrest, however, Ramirez called and approached her
numerous times.
Ramos Lara then attempted to enter the United States in January 2009.
When she was detained, she claimed she was a United States citizen. After
not being able to produce any documentation, she admitted she was not
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actually a citizen. She stated she was afraid of returning to Bolivia but not to
Mexico, where she had lived legally for the previous three years. She claims
she made this statement because she and her husband decided not to tell
anyone about Ramirez, fearing it would create more problems for them. She
was deported back to Mexico.
Ramos Lara then moved with her children on three separate occasions
to avoid Ramirez, but he eventually found them and her car disappeared the
next day. She claims that she reported her car stolen but did not make any
progress with Mexican officials.
After that incident, Ramos Lara attempted once again to enter the
United States in January 2010. In February 2010, she was served with a
Notice to Appear charging her as removable under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). She conceded removability and filed an application for
asylum. After a hearing, the Immigration Judge (“IJ”) denied Ramos Lara’s
application and ordered her removed to Mexico or Bolivia. The IJ found Ramos
Lara ineligible for asylum under the firm-resettlement bar because she had
lived in Mexico since 2005, was permitted to work there, and was planning on
obtaining permanent residency before she left Mexico in 2010.
Ramos Lara timely appealed to the Board of Immigration Appeals
(“BIA”), arguing her residency in Mexico was a necessary consequence of her
flight from Bolivia. If so, she may be eligible for an exception to the firm-
resettlement bar. The BIA concluded her argument was belied by the facts
that she lived with her children in Mexico and worked there for five years,
never expressed a fear of returning to Mexico after travelling in and out of the
country numerous times, and renewed her work visa in Mexico at least once.
The BIA dismissed Ramos Lara’s appeal. She petitions this court for review.
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DISCUSSION
The Attorney General has discretion to grant asylum to refugees. See 8
U.S.C. § 1158(b)(1)(A). An alien is statutorily barred from asylum if she was
“firmly resettled in another country prior to arriving in the United States.” See
id. § 1158(b)(2)(A)(vi). An alien is firmly resettled if prior to arriving in this
country, she “entered into another country with, or while in that country
received, an offer of permanent resident status, citizenship, or some other type
of permanent resettlement,” unless the alien establishes that an exception
applies. 8 C.F.R. § 1208.15. The necessary-consequence exception, relevant to
this petition for review, provides that firm resettlement has not occurred if
“entry into that country was a necessary consequence of [the alien’s] flight from
persecution, that [the alien] remained in that country only as long as was
necessary to arrange onward travel, and that [the alien] did not establish
significant ties in that country . . . .” Id. § 1208.15(a). The BIA decided Ramos
Lara did not establish that this exception applied.
We review a final decision of the BIA and not that of the IJ unless the
latter “affects the BIA’s decision” on appeal. See Zhu v. Gonzales, 493 F.3d
588, 593 (5th Cir. 2007). Here, the BIA stated its own reasoning in determining
that the IJ’s ruling was correct; consequently, we confine our review to the
BIA’s decision. Id. at 593–94.
As usual, we must identify and apply our standard of review. We review
questions of law de novo, giving “considerable deference” to the BIA’s
interpretation of the statutes it administers. Id. at 594. We have not
previously decided in a published opinion the standard of review applicable to
the key factual determination in this case, namely, the BIA’s finding about
firm resettlement or its exceptions. See Shariatzadeh v. Ashcroft, 66 F. App’x
523 (5th Cir. 2003). Neither party argues, though, that we should apply a
different standard of review than we typically do when reviewing the BIA’s
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factual determinations. We review most BIA factual findings for substantial
evidence, which translates into upholding factual findings unless the evidence
compels a contrary conclusion. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006). We have applied that standard to the BIA’s factual determination that
an alien is not eligible for asylum. Id. As to the BIA’s factual determinations
about firm resettlement and the necessary-consequence exception, other
circuits review for substantial evidence. See, e.g., Hanna v. Holder, 740 F.3d
379, 394–98 (6th Cir. 2014); Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir.
2006); Rife v. Ashcroft, 374 F.3d 606, 610–12 (8th Cir. 2004).
We hold that we must review the BIA’s factual determinations about
firm resettlement and its exceptions for substantial evidence.
We next respond to a joint invitation issued to us by the parties at oral
argument. We were encouraged to decide the validity of the BIA’s burden-
shifting framework for determining whether firm resettlement has occurred.
See A-G-G-, 25 I. & N. Dec. 486 (B.I.A. 2011). We respectfully decline. Ramos
Lara did not challenge this framework in her petition. The only issue before
us is whether the BIA erred in its determination that the necessary-
consequence exception did not apply. We need not examine the framework to
make that determination. Our court reviews “only those issues presented to
us . . . and [does] not craft new issues or otherwise search for them in the
record.” United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998).
The reason the framework is irrelevant is that on Ramos Lara’s appeal,
the BIA concluded that she did “not meaningfully challenge the Immigration
Judge’s finding that she did firmly resettle in Mexico,” a conclusion not
disputed here. Therefore, Ramos Lara firmly resettled in Mexico, meaning she
had received an “offer of permanent resident status, citizenship, or some other
type of permanent resettlement.” 8 C.F.R. § 1208.15. The only determination
we can review concerns an exception to firm resettlement, which is whether
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her living in Mexico was a necessary consequence of her flight from Bolivia.
Id. § 1208.15(a). The BIA found against her.
Ramos Lara first argues that the BIA erred because she did not have any
permit to live or work in Mexico indefinitely. She claims Mexico never made
her an offer of permanent residency. These arguments are relevant only to
firm resettlement, which is not before us because she did not contest that issue
with the BIA. See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001).
As to the issue of necessary consequence, we find substantial evidence of
all of the following. Ramos Lara attempted to enter the United States in 2009,
but she did not seek asylum then or at other opportunities prior to her claim
now. After being removed to Mexico, she renewed her work visa, lived and
worked there for five years as a substitute English teacher, and thereby
established “significant ties” to Mexico. She had also previously entered the
United States in 2007 for the birth of one of her children; afterwards, she
returned to Mexico. Although her children did not go to school in Mexico, they
lived with her there. Her husband often commuted between the United States
and Mexico in order to live with Ramos Lara and their children.
Such evidence is substantial and supports the BIA’s finding that Ramos
Lara was not in Mexico only “as long as was necessary to arrange onward
travel.” 8 C.F.R. § 1208.15(a).
The petition for review is DENIED.
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