Mejia-Alvarenga v. Garland

Case: 22-60554 Document: 78-1 Page: 1 Date Filed: 03/08/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

March 8, 2024

No. 22-60554

Lyle W. Cayce

____________ Clerk

Marta Alicia Mejia-Alvarenga,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

______________________________

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A206 007 825

______________________________

Before Higginbotham, Smith, and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

The original opinion in this matter was issued by the panel on January

3, 2024. A petition for rehearing en banc is currently pending before the

court. The petition for en banc rehearing is DENIED, no judge in active

service having requested that the court be polled. Nevertheless, the panel

withdraws our previous opinion, reported at 90 F.4th 348, and substitutes

the following:

Marta Alicia Mejia-Alvarenga petitions for review of the Board of

Immigration Appeals’ denial of her application for asylum. We DENY her

Case: 22-60554 Document: 78-1 Page: 2 Date Filed: 03/08/2024

No. 22-60554

petition in part, and we DISMISS her petition in part because we lack

jurisdiction.

I

Marta Alicia Mejia-Alvarenga, a native and citizen of El Salvador, was

detained while attempting to cross the Rio Grande into the United States

near Laredo, Texas. She was then charged with removability under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) because she did not possess valid documentation at the

time of her entry. She conceded removability as charged. Mejia-Alvarenga

then filed an application with the immigration court for statutory withholding

of removal and protection under the Convention Against Torture.1 She later

amended her application to seek asylum.

Mejia-Alvarenga based her claims for relief on threats that she

received from a man named Rigoberto Nelson and others associated with

him. In her application for asylum, Mejia-Alvarenga stated that Nelson raped

her while driving her home from a friend’s gathering. She further stated that,

immediately after raping her, Nelson threatened to kill Mejia-Alvarenga to

prevent her from reporting the rape to the police. Nevertheless, Mejia-

Alvarenga reported the rape to law enforcement. Shortly after, Nelson was

arrested and government officials began his prosecution.

Thereafter, the police sent Mejia-Alvarenga multiple notices to attend

court hearings. After attending two hearings, Mejia-Alvarenga was visited by

a series of individuals connected with Nelson who pressured her to drop the

case. First, Nelson’s attorney offered Mejia-Alvarenga money to drop the

case. Mejia-Alvarenga reported this to the judge, who removed the attorney

from the case. Then, Nelson’s second attorney engaged in the same

_____________________

1

Mejia-Alvarenga has forfeited any challenge to the denial of CAT relief because

she did not raise that issue before the BIA.

2

Case: 22-60554 Document: 78-1 Page: 3 Date Filed: 03/08/2024

No. 22-60554

behavior. Once again, Mejia-Alvarenga reported the behavior to the judge,

and the judge removed Nelson’s attorney from the case. Thereafter,

Nelson’s mother and sister began visiting Mejia-Alvarenga and offering her

money to drop the case. Mejia-Alvarenga stated that they told her

“Rigoberto was going to [be] free[d]” regardless of whether she dropped the

case, which frightened her because she perceived it as a threat.

Mejia-Alvarenga further alleged that Nelson sent other men to

threaten and intimidate her while he was in jail. For example, Mejia-

Alvarenga stated that her friend received a phone call telling the friend to

warn Mejia-Alvarenga that she needed to be careful because Nelson had been

set free and that “something was going to happen” to her. She also stated

that random men, whom she believed to be members of the MS-13 gang with

Nelson, began showing up to the stand where she sold fruit to threaten her

and to tell her to “be careful.” In addition, Mejia-Alvarenga stated that her

brother-in-law once found a note next to their home stating that Mejia-

Alvarenga should leave if she “owed something” and instructing her not to

say anything to the police. Nonetheless, Mejia-Alvarenga reported the note

to the police, who stated that they could not do anything because the note

was anonymous and did not contain “blood or anything else like that.”

Mejia-Alvarenga testified that Nelson made his final threat to her

roughly seven years after the rape, when Nelson approached Mejia-

Alvarenga and said, “you’re going to pay for what you did to me.” Mejia-

Alvarenga contends that she did not report this threat to the police because

she feared for her safety. Instead, she traveled to the United States—first by

train and then by crossing the Rio Grande.

II

The immigration judge denied Mejia-Alvarenga’s application for

relief and ordered her to be removed to El Salvador. While the immigration

3

Case: 22-60554 Document: 78-1 Page: 4 Date Filed: 03/08/2024

No. 22-60554

judge found Mejia-Alvarenga to be a credible witness and observed that she

had suffered past harm rising to the level of persecution, the immigration

judge determined that she had not been harmed on account of a political

opinion or her membership in a particular social group. The immigration

judge also concluded that Mejia-Alvarenga did not establish a well-founded

fear of future persecution because she did not show that the government

would be unable or unwilling to control a future persecutor.

Mejia-Alvarenga appealed this decision to the BIA. In addition, she

filed a motion asking that the BIA refer her appeal to a three-member panel

and seeking summary reversal and remand. In a reasoned order, a single-

member panel of the BIA affirmed the immigration judge’s decision and

denied Mejia-Alvarenga’s motion. With respect to her application for

asylum and withholding of removal, the BIA determined that Mejia-

Alvarenga failed to show that Salvadoran authorities were unable or unwilling

to protect her. The BIA’s order also rejected Mejia-Alvarenga’s arguments

that her due process rights were violated; that her appeal should be granted

because the government did not file a brief; and that the immigration judge

was biased, applied the wrong burden of proof, and overlooked material

evidence. Finally, the BIA responded to Mejia-Alvarenga’s motion seeking

referral to a three-member panel. In doing so, the BIA ruled that it lacked

authority to review challenges to its regulatory referral procedures and that

the appeal otherwise did not require a three-member panel under 8 C.F.R.

§ 1003.1(e)(6). Mejia-Alvarenga filed a timely petition for review in this

court.

III

We review the BIA’s factual findings under the substantial evidence

standard and its legal conclusions de novo. Bertrand v. Garland, 36 F.4th 627,

631 (5th Cir. 2022). Where the immigration judge’s decision impacted the

4

Case: 22-60554 Document: 78-1 Page: 5 Date Filed: 03/08/2024

No. 22-60554

BIA—as is the case here—we consider the immigration judge’s decision to

the extent it influenced the BIA. Hernandez-Castillo v. Sessions, 875 F.3d 199,

204 (5th Cir. 2017).

IV

Mejia-Alvarenga contends that the BIA erred in denying her relief

because: (1) her petition for asylum established that the Salvadoran

government was unable or unwilling to protect her from private persecutors;

(2) the BIA adjudicator failed to act as an impartial adjudicator in violation of

8 C.F.R. § 1003.1(d)(1); (3) the BIA violated her constitutional rights when

it allowed a single BIA member to render its decision, without referral to a

three-member panel; and (4) the BIA committed an abuse of discretion by

not referring her case to a three-member panel pursuant to 8 C.F.R.

§ 1003.1(e)(6).

A

We begin by considering whether the BIA erred when it determined

that Mejia-Alvarenga failed to establish that the Salvadoran government was

unable or unwilling to protect her from private persecutors, as would be

required for her to obtain asylum. We hold that it did not.

To be eligible for asylum, an applicant must establish that she is a

“refugee.” 8 U.S.C. § 1158(b)(1)(B)(i). To qualify as a refugee, the

applicant must show that “race, religion, nationality, membership in a

particular social group, or political opinion was or will be at least one central

reason for persecuting the applicant.” Id. “Persecution refers to harm

inflicted either by the government or by private actors whom the government

‘is unable or unwilling to control.’” Bertrand, 36 F.4th at 631 (quoting

Sanchez-Amador v. Garland, 30 F.4th 529, 533 (5th Cir. 2022)). To prove

that a government is unable or unwilling to protect against private

persecution, an applicant for asylum “must show that the government

5

Case: 22-60554 Document: 78-1 Page: 6 Date Filed: 03/08/2024

No. 22-60554

condoned the private violence ‘or at least demonstrated a complete

helplessness to protect the [applicant.]’” Id. at 631–32 (quoting Shehu v.

Gonzales, 443 F.3d 435, 437 (5th Cir. 2006)). The BIA appropriately applied

this standard when determining whether the Salvadoran government would

be unwilling or unable to control Mejia-Alvarenga’s persecutors.

Although Mejia-Alvarenga argues that the “complete helplessness”

standard is inapposite because it was adopted in Matter of A-B-, 27 I&N Dec.

316, 337 (A.G. 2018) (A-B-I), which has since been vacated by Matter of

A-B-, 28 I&N Dec. 307 (A.G. 2021) (A-B-III), our precedent forecloses that

argument. Bertrand 36 F.4th at 632 n.5. Indeed, our court has held that the

“inability or unwillingness” standard is interchangeable with our “complete

helplessness standard,” and therefore does not conflict with the Attorney

General’s decision in A-B-III. Gonzales-Veliz v. Barr, 938 F.3d 219, 233 (5th

Cir. 2019). Thus, because the complete helplessness standard was

unambiguously the correct standard prior to A-B-I, it continues to serve as

the law of this circuit even after the vacatur in A-B-III. Bertrand, 36 F.4th at

632–33; see also Nat’l Cable Telecomm. Assoc. v. Brand X Internet Servs., 545

U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute

trumps an agency construction otherwise entitled to Chevron deference only

if the prior decision holds that its construction follows from the unambiguous

terms of the statute.”). In addition, the standard that Mejia-Alvarenga

proposes—that she must prove that there is at least a ten percent chance that

the Salvadoran government is unable or unwilling to protect her from her

persecutors—is without support. Mejia-Alvarenga cites INS v. Cardoza-

Fonseca, 480 U.S. 421, 431 (1987), in support of her claim. However,

Cardoza-Fonseca is inapposite here because that case did not concern the

element of a government’s ability or willingness to protect against private

persecution. Instead, Cardoza-Fonseca evaluated what is required to establish

a “well-founded fear of persecution.” Id.

6

Case: 22-60554 Document: 78-1 Page: 7 Date Filed: 03/08/2024

No. 22-60554

Mejia-Alvarenga further argues that the BIA failed to show

meaningful consideration of the relevant substantial evidence supporting her

claims because its decision focused on persecution by Nelson alone and did

not address the Salvadoran government’s ability and willingness to protect

her from the MS-13 gang. A decision by the BIA is deficient if it fails to reflect

“meaningful consideration of the relevant substantial evidence supporting

[an] alien’s claims.” Ndifon v. Garland, 49 F.4th 986, 988 (5th Cir. 2022)

(quoting Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996)). The BIA is

not required to “write an exegesis on every contention,” but it must consider

the issues raised before it and provide a decision “sufficient to enable a

reviewing court to perceive that it has heard and thought and not merely

reacted.” Ghotra v. Whitaker, 912 F.3d 284, 290 (5th Cir. 2019) (citation

omitted).

We hold that the BIA did not err in deciding that Mejia-Alvarenga

failed to show that the Salvadoran government would be unable or unwilling

to control Mejia-Alvarenga’s persecutors because the BIA adequately

considered evidence of gang involvement in Mejia-Alvarenga’s claims, and

substantial evidence supports the BIA’s determination. The evidence

presented to the BIA showed that the Salvadoran government arrested and

detained Nelson for the alleged rape; removed his first two attorneys after

Mejia-Alvarenga reported them to the court for offering her money to drop

the case; and pursued Nelson’s case even after Mejia-Alvarenga stopped

cooperating with the prosecution. These actions support the BIA’s

determination that the Salvadoran government would not be unwilling or

unable to control Mejia-Alvarenga’s persecutors.

Mejia-Alvarenga also presented evidence that the Salvadoran

government did not make an effort to address threats from random men at

Mejia-Alvarenga’s fruit stand, Nelson’s May 2013 in-person threat, or the

nonspecific threat made on a note left at Mejia-Alvarenga’s house in May

7

Case: 22-60554 Document: 78-1 Page: 8 Date Filed: 03/08/2024

No. 22-60554

2013. However, a reasonable factfinder could still conclude that substantial

evidence supported the determination that the Salvadoran government

would not be unwilling or unable to control Mejia-Alvarenga’s persecutors.

Indeed, Mejia-Alvarenga did not report the first two of these threats to

authorities, therefore depriving them of the opportunity to address those

threats. Thus, “one would be hard-pressed to find that the authorities were

unable or unwilling” to protect her from those threats. Sanchez-Amador, 30

F.4th at 534. Further, given the lack of specificity of the threat conveyed by

the note and the fact that there is no evidence as to who was responsible for

the note, it was reasonable for the BIA to conclude that Mejia-Alvarenga did

not present compelling evidence that the Salvadoran government was unable

or unwilling to protect Mejia-Alvarenga from gangs. “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.” Bertrand,

36 F.4th at 632.

B

We next consider whether the BIA violated its regulatory obligation

to be impartial under 8 C.F.R. § 1003.1(d)(1). Mejia-Alvarenga contends that

the BIA failed to act as an impartial appellate body when the BIA adjudicator

did not require DHS to file briefing and instead “sua sponte decide[d]” issues

“on DHS’s behalf.” However, there is no authority requiring either party to

file briefing before the BIA, and Mejia-Alvarenga’s argument is otherwise

legally insufficient to prove bias.

Mejia-Alvarenga grounds her claim concerning the BIA’s failure to act

as an impartial appellate body in 8 C.F.R. § 1003.1(d)(1), which requires the

BIA to function as such. However, this argument is unavailing. The decision

not to require the government to file briefing is consistent with the

regulations governing appeals before the BIA. Under the regulations,

8

Case: 22-60554 Document: 78-1 Page: 9 Date Filed: 03/08/2024

No. 22-60554

“[b]riefs may be filed by both parties.” 8 C.F.R. § 1003.38(f). Thus, the

regulations allow even the appealing party to forgo filing a brief in the BIA,

so long as the party identifies the reasons for the appeal when filing the notice

of appeal. See 8 C.F.R. § 1003.3(b). It follows that the single BIA member’s

decision not to require the government to file a brief complies with the

regulations.

Further, even if we were to construe Mejia-Alvarenga’s argument as

a due process concern—instead of one grounded in the Attorney General’s

regulations—Mejia-Alvarenga has still failed to present evidence in support

of her position that the BIA member demonstrated partiality by not requiring

the government to file a brief. See Wang v. Holder, 569 F.3d 531, 540 (5th Cir.

2009) (“[O]pinions formed by the judge on the basis of facts introduced or

events occurring in the course of the . . . proceedings, do not constitute a basis

for a bias or partiality motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible.” (alterations in

original) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994))).

C

Next, we consider Mejia-Alvarenga’s argument that the BIA violated

her due process rights when it allowed a single BIA member to render its

decision, without referral to a three-member panel. We reject this claim.

Mejia-Alvarenga argues that the regulation governing decisions by a

single BIA member, 8 C.F.R. § 1003.1(e), is unconstitutional because it

“virtually preclude[s] reversal of immigration judges’ removal orders even

when meritorious issues are raised.” While Mejia-Alvarenga correctly

asserts that single-member BIA panels do not have the authority to reverse

an immigration judge’s decision unless reversal is plainly consistent with and

required by an intervening change in law, see 8 C.F.R. § 1003.1(e)(5),

9

Case: 22-60554 Document: 78-1 Page: 10 Date Filed: 03/08/2024

No. 22-60554

(e)(6)(vi), this feature of the BIA’s case management system does not violate

due process for two independent reasons.

First, under the statutory scheme, referral to a three-member BIA

panel is discretionary. As our precedent clearly states, “the failure to receive

relief that is purely discretionary in nature does not amount to a deprivation

of a liberty interest.” Ramos-Portillo v. Barr, 919 F.3d 955, 963 (5th Cir. 2019)

(quoting Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004)). “[T]he denial

of discretionary relief does not rise to the level of a constitutional violation

even if [the moving party] had been eligible for it.” Ramos-Portillo v. Barr,

919 F.3d at 963 (alterations in original) (quoting Altamirano-Lopez v.

Gonzales, 435 F.3d 547, 550 (5th Cir. 2006)). Because referral to a three-

member BIA panel is discretionary, Mejia-Alvarenga has no liberty interest

at stake.

Alternatively, we hold that there is no due process violation because

the agency has discretion to fashion its own rules of procedure.2 As the

Supreme Court has stated, when Congress entrusts executive agencies with

the responsibility to conduct their own proceedings—as it has done in the

immigration context—it “intend[s] that the discretion of [these] agencies

and not that of the courts be exercised in determining” whether to provide

procedural rights beyond those that Congress expressly granted in the

authorizing statute. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,

Inc., 435 U.S. 519, 546 (1978) (emphasis omitted). Thus, because Congress

has given the BIA the responsibility to conduct its own proceedings, the

agency “should be free to fashion [its] own rules of procedure and to pursue

methods of inquiry capable of permitting [it] to discharge [its] multitudinous

_____________________

2

Alternative holdings are not dicta and are binding in this circuit. Texas v. United

States, 809 F.3d 134, 178 n.158 (5th Cir. 2015), aff’d by an equally divided Court, 579 U.S.

547 (2016).

10

Case: 22-60554 Document: 78-1 Page: 11 Date Filed: 03/08/2024

No. 22-60554

duties.” Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003) (quoting

Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003)).

In addition, we also reject Mejia-Alvarenga’s argument on the merits.3

Mejia-Alvarenga argues that New Orleans’s 10% asylum grant rate, when

compared with New York and Honolulu’s grant rates of 43% and 60%

respectively, establishes bias. However, we have already rejected this

argument. See Singh v. Garland, 20 F.4th 1049, 1054–55 (5th Cir. 2021)

(addressing a challenge to an immigration judge’s impartiality). The rate at

which immigration judges in a particular location grant asylum at most

provides a “crude summation” of aggregated decisions in prior cases. Id. at

1055. The “raw statistic” does not support finding a denial of due process as

to the § 1003.1(e) standards. Id.

D

Finally, we consider Mejia-Alvarenga’s argument that the BIA

committed an abuse of discretion by not referring her case to a three-member

BIA panel pursuant to § 1003.1(e)(6). We hold that we lack jurisdiction over

this claim. Judicial review under the APA is not available for agency actions

that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see

Heckler v. Chaney, 470 U.S. 821, 828 (1985). This means that the court shall

not review an agency action if the law governing the action “is drawn so that

a court would have no meaningful standard against which to judge the

agency’s exercise of discretion.” Chaney, 470 U.S. at 830; see Qorane v. Barr,

919 F.3d 904, 911–12 (5th Cir. 2019) (applying § 701(a)(2) to conclude that

jurisdiction does not exist to review the BIA’s denial of a sua sponte regulatory

reopening under 8 C.F.R. § 1003.2(a)); cf. Hernandez-Castillo, 875 F.3d at

_____________________

3

Alternative holdings are not dicta and are binding in this circuit. Texas v. United

States, 809 F.3d at 178 n.158, aff’d by an equally divided Court, 579 U.S. 547 (2016).

11

Case: 22-60554 Document: 78-1 Page: 12 Date Filed: 03/08/2024

No. 22-60554

207–08 (holding that the BIA’s discretionary denial of a motion to

administratively close proceedings is subject to judicial review because there

are meaningful standards for evaluating when administrative closure is

appropriate). Because the BIA has not articulated standards for evaluating

when and how single-member BIA panels should exercise their discretion to

refer a case to a three-member panel under § 1003.1(e)(6), we lack

jurisdiction over Mejia-Alvarenga’s claim.4 See Qorane, 919 F.3d at 912.

V

We DENY Mejia-Alvarenga’s petition as to the first three issues and

DISMISS her petition on the abuse of discretion issue for lack of

jurisdiction.

_____________________

4

The government also argues that our reasoning from two earlier decisions

provides support for our decision today. In Tibakweitira v. Wilkinson, we stated that

“[b]ecause the decision to designate the case to be heard by a three-member panel is

discretionary, this court lacks jurisdiction to review the BIA’s decision.” 986 F.3d 905, 914

(5th Cir. 2021) (quoting Cantu-Delgadillo v. Holder, 584 F.3d 682, 690–91 (5th Cir. 2009)).

While Tibakweitira and Cantu-Delgadillo could provide support for our holding here, the

government correctly points out that those cases also involved the application of 8 U.S.C.

§ 1252’s jurisdictional bar, which is not at issue in this case. Here, by contrast, we lack

jurisdiction to review the BIA’s decision not to refer a case to a three-member panel under

§ 1003.1(e)(6) without reliance on § 1252’s jurisdictional bar.

12