Trochez Castellanos v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60414

DORA LIZETH TROCHEZ CASTELLANOS,

Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 721 272

Before JOLLY, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
Petitioner, Dora Lizeth Trochez Castellanos (“Trochez-Castellanos”),
seeks review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from the immigration judge’s (“IJ”) denial of her applications for asylum
and withholding of removal. Trochez-Castellanos contends that the BIA erred
when it adopted the IJ’s conclusion that she failed to establish past persecution
or a well-founded fear of future persecution on account of her membership in

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 4, 2020

Lyle W. Cayce
Clerk
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the particular social group, “family members of ex-MS gang members in
Honduras.” For the reasons below, we DENY Trochez-Castellanos’s petition.
I. Factual Background
Trochez-Castellanos, a native and citizen of Honduras, and her minor
daughter
1
entered the United States in April 2014 without having been
admitted or inspected. An asylum officer determined that Trochez-Castellanos
had demonstrated a credible fear of persecution or torture. After being charged
with removability and given a Notice to Appear, Trochez-Castellanos filed
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).
At an IJ’s hearing, Trochez-Castellanos testified that she came to the
United States because she was afraid of the Mara Salvatrucha (“MS”) gang in
Honduras. In 2010, she met and began living with her daughter’s father, Henry
Ulloa. Trochez-Castellanos spent three years with her ex-partner, Ulloa,
during which she noticed that he would leave for two to three days at a time
and associate with MS gang members. In October 2013, Ulloa told Trochez-
Castellanos that he was experiencing problems with the MS gang and that its
gang members were going to kill him. Ulloa quit the MS gang and left Trochez-
Castellanos without disclosing where he was going. Trochez-Castellanos has
not heard from Ulloa since he left.
Between October and December 2013, MS gang members approached
Trochez-Castellanos on six occasions as she returned from work in the
evenings to ask her about Ulloa’s whereabouts. Sometime in December 2013,
two teenage MS gang members came to Trochez-Castellanos’s home and told
her that since Ulloa betrayed the gang and could not be found, Trochez-
Castellanos had to join the MS gang or otherwise she and her daughter would

1
The claims of Trochez-Castellanos’s daughter are not subject to this appeal.
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be killed. Although Trochez-Castellanos could not see weapons on the two gang
members, she believed that they were carrying guns covered behind their
pants and belts. Trochez-Castellanos feared that the gang members would
fulfill their death threat, but she did not contact the police after being
threatened because she believed the police “work together with the gang
members.”
2
She testified that she never encountered these two gang members
again.
The day after the gang members’ threat, Trochez-Castellanos moved an
hour away to a different town in Honduras to stay with a friend. Trochez-
Castellanos testified that she did not experience problems with gang members
mainly due to the fact that she was too afraid to leave her friend’s house for
two months. Trochez-Castellanos also testified that various gang members
asked her old neighbors about her whereabouts, but her neighbors did not
disclose that information. After questioned by the MS gang about her
daughter, Trochez-Castellanos’s mother
3
also moved two and a half hours
away and had no further encounters with gang members. Because staying
indoors was not a viable, long-term solution to deal with gang threats, Trochez-
Castellanos made the decision in February 2014 to leave Honduras with her
then three-year old daughter.
II. Procedural Background
After hearing the evidence, the IJ found Trochez-Castellanos’s testimony
credible but denied her applications for asylum, withholding of removal, and

2
When asked by the IJ why she did not contact the police, Trochez-Castellanos
explained that she knew of a woman who reported gang members to the police and filed a
report. The police “leaked” the woman’s report to gang members who then went to the
woman’s house and threatened to kill her. The woman subsequently left her home.

3
On her applications for asylum and withholding of removal, Trochez-Castellanos
listed that her father is currently located in Honduras.
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protection under the CAT. With respect to asylum, the IJ concluded that she
had not demonstrated past persecution and, even if she had, that her claimed
particular social group (“PSG”)—“family members of ex-MS gang members in
Honduras”—was not cognizable or socially distinct and that she could not
demonstrate a familial relationship as she was never married to her ex-partner
Ulloa, who had been absent from her and her daughter’s lives since 2013. The
IJ also determined that Trochez-Castellanos had not demonstrated a well-
founded fear of future persecution, given the finding that her claimed social
group was not cognizable and the fact that she could relocate to another area
of Honduras to avoid harm. The IJ also found that Trochez-Castellanos
necessarily failed to demonstrate her eligibility for withholding of removal,
which has more stringent standards than asylum. Finally, with respect to
protection under the CAT, the IJ determined that Trochez-Castellanos failed
to establish past torture or that the gang members acted at the instigation or
with the acquiescence of the Honduran government. The IJ denied Trochez-
Castellanos’s petitions and ordered her removed to Honduras.
The BIA affirmed the IJ’s asylum determinations that the threats
Trochez-Castellanos experienced did not rise to the level of past persecution,
that she did not have a well-founded fear of future persecution based on her
membership in a cognizable social group, and that she failed to demonstrate
that she could not relocate to another area of Honduras to avoid harm. The
BIA further stated that a fear of forcible gang recruitment was not a basis for
asylum. The BIA concluded that Trochez-Castellanos was therefore ineligible
for asylum and withholding of removal. The BIA noted that Trochez-
Castellanos did not appeal the IJ’s denial of her application for protection
under the CAT. Having found her ineligible for asylum and withholding of
removal, the BIA dismissed Trochez-Castellanos’s appeal.

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III. Jurisdiction
We have jurisdiction to review the BIA’s final order of removal under 8
U.S.C. § 1252(a)(1). Trochez-Castellanos timely petitioned for review because
she filed her petition on June 12, 2019, within thirty days of the BIA’s decision.
8 U.S.C. § 1252(b)(1). Venue is proper because the immigration proceedings
took place in New Orleans, Louisiana. See 8 U.S.C. § 1252(b)(2).
IV. Standard of Review
We review the decision of the BIA and will consider the IJ’s decision only
to the extent it influenced the BIA. Shaikh v. Holder, 588 F.3d 861, 863 (5th
Cir. 2009). We review questions of law de novo and factual findings for
substantial evidence. Id. Under the substantial evidence standard, “[t]he alien
must show that the evidence was so compelling that no reasonable factfinder
could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009).
V. Discussion
Trochez-Castellanos contends that she is entitled to asylum and
withholding of removal because she has demonstrated past persecution and a
well-founded fear of future persecution on account of her membership in a PSG.
Trochez-Castellanos argues that the BIA erred by (1) failing to view the
aggregate effect of multiple threats as constituting persecution and (2)
narrowly construing the term “family” in her claimed PSG of “family members
of ex-MS gang members in Honduras.”
To qualify for asylum as a refugee, an applicant must demonstrate either
past persecution or a reasonable, well-founded fear of future persecution on
account of one of the five grounds enumerated in 8 U.S.C. § 1101(a)(42)(A),
including “membership in a particular social group.” Milat v. Holder, 755 F.3d
354, 360 (5th Cir. 2014); see 8 U.S.C. § 1158(b)(1)(B)(i). Persecution is “[t]he
infliction of suffering or harm” that “need not be physical, but may take other
forms[.]” Eduard v. Ashcroft, 379 F.3d 182, 187 (5th Cir. 2004) (citation
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omitted). “[P]ersecution is an extreme concept that does not include every sort
of treatment our society regards as offensive,” Arif v. Mukasey, 509 F.3d 677,
680 (5th Cir. 2007) (citation omitted), and cannot be based on “mere
denigration, harassment, and threats.” Eduard, 379 F.3d at 188. “Examples of
persecution include, but are not limited to, ‘threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life
or freedom.’” Morales v. Sessions, 860 F.3d 812, 816 (5th Cir. 2017) (quoting
Fei Mei Cheng v. Attorney Gen. of U.S., 623 F.3d 175, 192 (3d Cir. 2010)). “An
applicant may establish past persecution on the basis of the cumulative effects
of multiple incidents even if each incident, considered in isolation, would not
rise to the level of persecution.” Lin v. Holder, 478 F. App’x 219, 227 (5th Cir.
2012) (unpublished) (emphasis added) (citing Bing Shun Li v. Holder, 400 Fed.
Appx. 854, 856, 858–59 (5th Cir. 2010) (finding no persecution where applicant
who challenged wife’s forced abortion was fired from his job, detained for two
days, subjected to coercive interrogation, and experienced some physical abuse
not requiring medical attention).
Contrary to Trochez-Castellanos’s assertion, the IJ and BIA considered
the totality of the gang incidents, including the six occasions gang members
inquired about Ulloa’s whereabouts and the death threat made at Trochez-
Castellanos’s house. Moreover, substantial evidence supports the BIA’s and
IJ’s conclusion that Trochez-Castellanos has not demonstrated past
persecution. The inquiries about her ex-partner Ulloa, who was also
threatened with death, were troubling but there is no indication in the record
that Ulloa was physically harmed or killed by the MS gang.
4
The gang

4
Even if there was indication that Ulloa was killed or harmed, Trochez-Castellanos
must still demonstrate that the persecutors i nflicted such harm intending to target her. See
Martinez-Lopez v. Barr, 943 F.3d 766, 771 (5th Cir. 2019) (finding no past persecution where
petitioner did not testify that her relatives’ murders were aimed at injuring petitioner); Huezo
v. Mukasey, 269 F. App’x 374, 375 (5th Cir. 2008) (unpublished) (finding no past persecution
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members’ death threat to Trochez-Castellanos was alarming but it was
unaccompanied by violence. Our court has consistently affirmed
determinations that death threats, without more, are not persecution. See, e.g.,
Pirmuhammad v. Ashcroft, 122 F. App’x 132, 132 (5th Cir. 2005) (unpublished)
(holding that several death threats, without physical abuse, detainment, or
interrogation, are not persecution); Chamorro v. Ashcroft, 119 F. App’x 608,
608 (5th Cir. 2004) (unpublished) (same); Zapeta v. Ashcroft, 103 F. App’x 857,
857 (5th Cir. 2004) (unpublished) (same); Torres v. Ashcroft, 88 F. App’x 706,
706 (5th Cir. 2004) (unpublished) (same); accord Reyes-Guerrero v. I.N.S., 192
F.3d 1241, 1243 (9th Cir. 1999) (finding past persecution where repeated and
menacing death threats were accompanied by confrontation and made over a
period of two years). Accordingly, Trochez-Castellanos cannot establish past
persecution under these threats standing alone without significant actual
suffering or harm.
We may also treat unfulfilled death threats as a question of future—not
past—persecution. See Bernal-Garcia v. INS, 852 F.2d 144, 146–47 (5th Cir.
1988). “To establish a well-founded fear of future persecution, an alien must
demonstrate a subjective fear of persecution, and that fear must be objectively
reasonable.” Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (internal
quotation marks and citation omitted). “[A] finding of a well-founded fear of
persecution is negated if the applicant can avoid persecution by relocating to
another part of his home country,” unless the persecution is by a government
or is government-sponsored. Eduard, 379 F.3d at 189 (citing 8 C.F.R. §
208.13(b)(2)(ii)). Critically, Trochez-Castellanos makes no argument at all as
to the BIA and IJ’s determination that she could relocate to another part of

where petitioner received multiple death threats but did not present evidence that he or
members of immediate family suffered any physical harm).
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Honduras. The IJ and BIA found that not only was Trochez-Castellanos able
to relocate an hour away from her home without gang confrontations, but also
her mother was able to relocate two hours away without further gang
encounters. We have also rejected the contention that a petitioner is unable to
“reasonably relocate to another part of [the applicant’s country of nationality]”
due to a belief that gang members are “everywhere.” Munoz-Granados v. Barr,
958 F.3d 402, 407-08 (5th Cir. 2020) (holding that “a fear of general violence
and civil disorder is not sufficient to support a fear of future persecution”).
Accordingly, substantial evidence also supports the BIA and IJ’s conclusions
that Trochez-Castellanos has not demonstrated a reasonable, well-founded
fear of future persecution.
Because substantial evidence supports the BIA and IJ’s conclusions that
Trochez-Castellanos has not established past persecution or a well-founded
fear of future persecution, we need not consider her second contention
challenging whether any persecution was on account of membership in her
claimed PSG of “family members of ex-MS gang members in Honduras.”
Finally, we turn to Trochez-Castellanos’s eligibility for withholding of
removal which requires a demonstration of “a clear probability of persecution
upon return.” Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (internal
quotation marks and citation omitted). As “[w]ithholding of removal is a higher
standard than asylum,” one who fails to show entitlement to asylum fails to
show entitlement to withholding of removal. Efe v. Ashcroft, 293 F.3d 899, 906
(5th Cir. 2002). Because substantial evidence supports the BIA’s finding that
Trochez-Castellanos failed to meet her burden for asylum, she has also failed
to carry her burden for withholding of removal. See Orellana-Monson v. Holder,
685 F.3d 511, 518 (5th Cir. 2012).
VI. Conclusion
For these reasons, we DENY Trochez-Castellanos’s petition for review.
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