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Cabrera v. Sessions

United States Court of Appeals, Fifth Circuit

May 7, 2018


          Petition for Review of an Order of the Board of Immigration Appeals

          Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.

          CARL E. STEWART, Chief Judge:

         On May 27, 2014, Lesly Odelia Cabrera, a native citizen of Honduras, fled to the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The Immigration Judge ("IJ") denied all relief and Cabrera appealed to the Board of Immigration Appeals ("BIA"), alleging the IJ misapplied the law in determining her refugee status and denying relief. The BIA summarily dismissed the appeal. Cabrera now brings this petition for review. We deny in part and grant in part the petition for review.

          I. BACKGROUND

         Petitioner fled to the United States without authorization in 2014 fearing, according to her, that her political activism posed a threat to her life and that of her teenage son, Edwuard.[1] Prior to coming to the United States, Cabrera lived in a poor, crime-afflicted neighborhood in Choloma, Honduras. As in much of the country, Honduras's large and powerful gangs-including MS-13 or "the Maras" and their rivals, Barrio 18-are ubiquitous in Choloma. According to Cabrera, the Maras murdered several members of her family, including her cousin, nephew, and two brothers-in-law.

         Cabrera says that she became politically active against the gangs and the governing political party in March 2012. That month, the Maras approached then-fifteen-year-old Edwuard as he was leaving school, robbed him, and demanded that he join the gang. When he refused, they beat him and threatened him at knifepoint, telling him that they would kill him if he did not change his mind. Prior to Edwuard's attack, the Maras raped, beat, and murdered a female classmate who refused to join the gang. They dumped her body in front of the school "for all to see." The incident was reported to the police who took no action. Dismayed that anyone had reported their crime at all, according to Cabrera, the Maras "sent out a warning to the community- anyone who speaks out against them will be physically assaulted or worse."

         After Edwuard's assault, Cabrera joined a parents' group at his school. The group began staging public protests in front of the police station and in the central park, demanding that the police provide protection at the school. Although the police eventually agreed to send a patrol car, their presence lasted only a week or two, after which the parents' group stood watch throughout the day. Cabrera testified that she guarded the school twice a week from 2012 until the time she left Honduras in 2014.

         In addition to organizing protests with the parents' group, Cabrera joined the Libertad y Refundacion Party ("LIBRE"), a political party opposed to the Maras and current government inaction and corruption. According to one study Cabrera presented to the IJ, the "LIBRE party pre-candidates, candidates, their families, and campaign leaders have suffered more killings and armed attacks than all other political parties combined." Cabrera campaigned on behalf of the party and supported the LIBRE candidate for mayor of Choloma. In October 2013, the Maras robbed Juan Pena, the president of Cabrera's parents' group and fellow LIBRE party member, threatening him and demanding that he leave the neighborhood. Pena, like Cabrera, had been posting pro-LIBRE signs around Choloma.

         In 2014, gang members robbed Cabrera. Fearing she and Edwuard "may be harmed as a result of [her] protests against the Maras' actions" and her "denouncement of the government's inaction and corruption, " she decided that they "would just stay home." Eventually, Cabrera grew "tired of feeling like a prisoner in [her] own home" and traveled to the United States with Edwuard in May of 2014.

         After arriving in the United States, Cabrera applied for asylum, withholding of removal, and relief under the CAT. Her claims were based on her political opinion and her membership in a particular social group ("PSG") described as female human rights defenders from Honduras. Cabrera testified that she was "afraid that if [she goes] back [to Honduras], [she] would be immediately identified and . . . harmed, [kidnapped] or even killed by the Maras." She also explained that returning to Honduras and relocating within the country is not a possibility because she would always be in danger.[2]

         In addition to her own testimony, Cabrera presented unchallenged testimony from Dr. Thomas Boerman, a recognized expert on Honduran gangs, including "their culture, sociology, and psychology . . . and factors that affect the Honduran government's ability and willingness to respond to crime and violence." Dr. Boerman has traveled to Choloma on several occasions and describes it as "a community that has been ravaged by gang violence." He testified that the government is unable and unwilling to prevent gang violence against "activists and human rights defenders" or others who challenge the gangs. Dr. Boerman explained that violent criminal gangs and related government corruption are pervasive in Honduras and asserted that Cabrera's participation in public protests, her support of the LIBRE party, and her gender put her at a particular risk of harm. According to Dr. Boerman, "[t]he Honduran government acknowledges that organized criminal groups have infiltrated state institutions-includ[ing] the police, military and judiciary." The Vice-President of the Honduran National Congress disclosed that "[forty] percent of the country's police officers are directly linked to organized crime."[3] Dr. Boerman concluded that in his professional opinion "[Cabrera] may be at risk of egregious physical harm if returned to Honduras, and that it is utterly implausible to conclude that the Honduran government would be able or willing to provide her even a modicum of protection against this threat."

         Although the IJ made no adverse findings regarding Cabrera's credibility, he denied all relief and ordered Cabrera removed to Honduras, concluding that Cabrera "ha[d] not been persecuted in the past" where "one central reason" for the persecution was "either her activities against the gangs or against the violation of human rights." The IJ also found no indication that "one central reason" for Cabrera's being robbed in 2014 was her "activity against the gangs . . . or her participation in any political demonstrations or groups." He instead found that her fear and her attackers' motivations were both based in the general criminality of Honduras. Accordingly, the IJ concluded Cabrera had not suffered past persecution on account of any factor that would qualify her for asylum.

         As to the likelihood of future persecution, the IJ noted "that gangs can be expected to react viciously and violently against anyone who defies them." The IJ then determined - despite her own claim - Cabrera's group was actually "those who might defy gangs" and those people do not form a PSG. The IJ reasoned that "[t]o simply pick out one way in which a specific individual has defied a gang or disobeyed it and indicate that this has created a particular social group does not constitute evidence of such a group as distinct in Honduran society." The IJ thus concluded that Cabrera had "not demonstrated that the fear she has of the gangs in Honduras would be on account of any qualifying cause."

         The IJ similarly rejected Cabrera's claim for withholding of removal on the ground that she had not "shown a clear probability of future persecution on account of any . . . qualifying cause." As to Cabrera's CAT claim, the IJ found no evidence to establish a "clear probability that she would be tortured by the government of Honduras or with its acquiescence."

         Cabrera appealed to the BIA. The BIA - in a single member, two-page order - agreed with the IJ that Cabrera had not established the requisite likelihood of persecution based on a protected classification as was needed for asylum or withholding of removal. The BIA also adopted the IJ's reasoning that Cabrera was not entitled to CAT relief. Cabrera filed a timely petition for review.

         II. ...

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