Case: 22-60554     Document: 00517020041         Page: 1    Date Filed: 01/03/2024




            United States Court of Appeals
                 for the Fifth Circuit                                 United States Court of Appeals
                                                                                Fifth Circuit

                                ____________                                  FILED
                                                                        January 3, 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:
          Marta Alicia Mejia-Alvarenga petitions for review of the Board of
   Immigration Appeals’ denial of her application for asylum. We DENY her
   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.
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                                        No. 22-60554


   § 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
   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.

          _____________________
          1
            Mejia-Alvarenga has forfeited any challenge to the denial of CAT relief because
   she did not raise that issue before the BIA.




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                                    No. 22-60554


          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
   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




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                                    No. 22-60554


   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 

(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, 

 (5th Cir. 2022). Where the immigration judge’s decision impacted the
   BIA—as is the case here—we consider the immigration judge’s decision to
   the extent it influenced the BIA. Hernandez-Castillo v. Sessions, 

 (5th Cir. 2017).
                                         IV




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                                     No. 22-60554


          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
   

(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 

(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.”    

(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.” 

 “Persecution refers to harm
   inflicted either by the government or by private actors whom the government
   ‘is unable or unwilling to control.’” Bertrand, 

 (quoting
   Sanchez-Amador v. Garland, 

 (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
   condoned the private violence ‘or at least demonstrated a complete
   helplessness to protect the [applicant.]’” 

 at 631–32 (quoting Shehu v.
   Gonzales, 

 (5th Cir. 2006)). The BIA appropriately applied




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                                     No. 22-60554


   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-, 

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

 (A.G. 2021) (A-B-III), our precedent forecloses that
   argument. Bertrand 

 n.5. The complete helplessness standard
   was the law of this circuit prior to A-B-I, and it continues to serve as the law
   of this circuit even after the vacatur in A-B-III. 

 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, 

 (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.” 

          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, 

 (5th Cir. 2022)
   (quoting Abdel-Masieh v. INS, 

 (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




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                                    No. 22-60554


   reacted.” Ghotra v. Whitaker, 

 (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
   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, 

. 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



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                                         No. 22-60554


   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,
   

.
                                              B
          We next consider whether the BIA violated its regulatory obligation
   to be impartial under 

(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 

(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,
   “[b]riefs may be filed by both parties.” 

(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 

(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, 

 (5th Cir.




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                                     No. 22-60554


   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, 

 (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, 

(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 

(e)(5),
   (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, 

 (5th Cir. 2019)
   (quoting Assaad v. Ashcroft, 

 (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,
   

 (alterations in original) (quoting Altamirano-Lopez v.
   Gonzales, 

 (5th Cir. 2006)). Because referral to a three-




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                                          No. 22-60554


   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., 

 (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
   duties.” Soadjede v. Ashcroft, 

 (5th Cir. 2003) (quoting
   Albathani v. INS, 

 (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, 

, 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

           _____________________
           2
             Alternative holdings are not dicta and are binding in this circuit. Texas v. United
   States, 

, 178 n.158 (5th Cir. 2015), aff’d by an equally divided Court, 

 (2016).
           3
             Alternative holdings are not dicta and are binding in this circuit. Texas v. United
   States, 

 n.158, aff’d by an equally divided Court, 

 (2016).




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                                          No. 22-60554


   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.” 

(a)(2); see
   Heckler v. Chaney, 

 (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, 

; see Qorane v. Barr,
   

, 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 

(a)); cf. Hernandez-Castillo, 875 F.3d at
   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, 

.

           _____________________
           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.” 

, 914
   (5th Cir. 2021) (quoting Cantu-Delgadillo v. Holder, 

, 690–91 (5th Cir. 2009)).
   While Tibakweitira and Cantu-Delgadillo could provide support for our holding here, the




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                                         No. 22-60554


                                               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.




           _____________________
   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.




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