Fatima Morales-Duran v. William Barr, U. S. ( 2019 )

Case: 18-60193 Document: 00514953742 Page: 1 Date Filed: 05/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2019
No. 18-60193
Summary Calendar Lyle W. Cayce
Clerk
FATIMA PRISSILA MORALES-DURAN; EVA LISDEY MORALES-DURAN,
Petitioners
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 453 302
BIA No. A208 453 306
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Fatima Prissila Morales-Duran and her derivative-beneficiary, Eva
Lisdey Morales-Duran, natives and citizens of El Salvador, petition for review
of the decision of the Board of Immigration Appeals (BIA) upholding the
decision of the immigration judge (IJ) denying their application for asylum and
withholding of removal. Morales contends her claims she was threatened with
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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No. 18-60193
death by gang members in El Salvador if she did not pay them “rent”
constitutes past persecution. In addition, she asserts she was persecuted on
account of her status as a single working mother without a male figure in her
household. Morales maintains she is unable to change the gang’s perception
of her as a single working mother or her prior compliance with their extortion
demands. She also claims she has shown a well-founded fear of future
persecution based on past persecution and her knowledge that gang members
in El Salvador retaliate against individuals who do not comply with their
demands.
“We review factual findings of the BIA and IJ for substantial evidence,
and questions of law de novo”. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.
2007) (citation omitted); see also Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009). An alien may be granted asylum if she “is unable or unwilling to return
to [her] home country” because she has been persecuted “or [has] a well-
founded fear of persecution on account of” a protected status, including
“membership in a particular social group”. Zhang v. Gonzales, 432 F.3d 339,
344 (5th Cir. 2005) (internal quotation marks and citation omitted).
A particular social group shares “a common immutable characteristic
that [members] either cannot change or should not be required to change
because it is fundamental to their individual identities or consciences”.
Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal
quotation marks and citations omitted). In addition, a particular social group
is one that has “social visibility”, meaning “members of a society perceive those
with the characteristic in question as members of a social group”, and
“particularity”, meaning the group “can accurately be described in a manner
sufficiently distinct that the group would be recognized, in the society in
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question, as a discrete class of persons”. Id. at 519 (internal quotation marks
and citations omitted).
The BIA ruled Morales’ first proposed particular social group—
“unprotected women receiving threats from gangs who flee the country of El
Salvador due to the danger to themselves and their children”—was
impermissibly defined by the harm suffered by its victims. See In re A-M-E
& J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007) (“[A] social group cannot be defined
exclusively by the fact that its members have been subjected to harm”.).
The BIA ruled Morales’ second proposed group—“unprotected women
who are targeted by gangs”—was insufficiently particular and lacked social
visibility. See Orellana-Monson, 685 F.3d at 519 (setting forth elements of a
particular social group). Although Morales asserts her status as a single
working mother made her attractive to the gang members for extortion
purposes, “a group’s recognition for asylum purposes is determined by the
perception of the society in question, rather than by the perception of the
persecutor”. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA 2014).
Therefore, Morales has not shown the BIA erred in ruling she was not
entitled to asylum. See Wang, 569 F.3d at 536; Zhang, 432 F.3d at 344. And,
because she has not established her entitlement to asylum, Morales is also
unable to satisfy the higher standard for showing she is entitled to withholding
of removal. See Dayo v. Holder, 687 F.3d 653, 658–59 (5th Cir. 2012).
Morales also asserts she is entitled to reversal because the IJ improperly
stated that Hernandez-Baena v. Gonzalez, 417 F.3d 720 (7th Cir. 2005), was a
fifth circuit opinion, and cited it as binding authority for the proposition that
death threats, without more, are insufficient to establish persecution. As
discussed above, Morales has not established her membership in a particular
social group under fifth circuit precedent. Accordingly, it is not necessary to
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consider whether she established past persecution. Moreover, fifth circuit
precedent holds persecution may not be based on “mere denigration,
harassment, and threats”. Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.
2004). In short, the IJ’s misstatement does not compel relief. See Zhu, 493
F.3d at 594.
In her final ground for relief, Morales contends the denial of relief
violated her due-process rights. Because she has not established she is entitled
to remain in the United States, she has not presented a valid Fifth Amendment
claim. See Cantu-Delgadillo v. Holder, 584 F.3d 682, 687–88 (5th Cir. 2009).
DENIED.
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