     Case: 17-60602      Document: 00514570108         Page: 1    Date Filed: 07/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-60602                              FILED
                                  Summary Calendar                        July 25, 2018
                                                                         Lyle W. Cayce
MARINA BENITEZ RAMOS,
                                                                              Clerk


                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A206 727 477


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Marina Benitez Ramos, a native and citizen of El Salvador, petitions for
review of a decision by the Board of Immigration Appeals (BIA) affirming the
immigration judge’s (IJ) decision denying her application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). In a hearing before the IJ, Benitez Ramos testified that after she
reported the attempted rape of her daughter by a gang member to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60602

Salvadoran police, she received two phone calls from someone threatening to
kill her and her family if she did not drop the charges against her daughter’s
attacker. She also testified that, after her daughter’s attacker was prosecuted
and convicted, a man shot at her while she was on her way home from work.
She believed that the phone calls and the shooting were perpetrated by other
members of the gang to which her daughter’s attacker belonged.
      We generally review only the decision of the BIA, but we will review the
IJ’s decision where, as in this case, it affects the BIA’s analysis. Le v. Lynch,
819 F.3d 98, 104 (5th Cir. 2016). Determinations of ineligibility for asylum,
withholding of removal, or relief under CAT are reviewed for substantial
evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). “Under
the substantial evidence standard, reversal is improper unless we decide not
only that the evidence supports a contrary conclusion, but also that the
evidence compels it.” Id. (internal quotation marks and citations omitted).
Benitez Ramos carries the burden of demonstrating that the evidence compels
a contrary conclusion. Id.
      The Attorney General has the discretion to grant asylum to “an alien
who is unable or unwilling to return to [her] home country ‘because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.’” INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1101(a)(42)(A)).
To qualify for asylum, the persecution must be committed by either “the
government or forces that a government is unable or unwilling to control.”
Tesfamichael v. Gonzalez, 469 F.3d 109, 113 (5th Cir. 2006).
      Benitez Ramos argues that the two phone calls and shooting qualify as
past persecution; that the circumstantial evidence supports a finding that the
shooting was on account of her political opinion (opposition to violence) or



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                                      No. 17-60602

membership in a particular social group (people who report crimes to the police
and assist family members in testifying); that the murder of her daughter’s
father demonstrates that she has a well-founded fear of future persecution;
that she did not report the second threatening phone call or the shooting to the
police because it would have been futile; and that, based upon a recent State
Department report on El Salvador, she is eligible for protection under CAT.
       Even assuming that Benitez Ramos established persecution on account
of political opinion or membership in a particular social group, substantial
evidence supports the BIA’s conclusion that she is not eligible for asylum
because she failed to establish that the Salvadoran government is unable or
unwilling to control her alleged persecutors. As Benitez Ramos concedes, the
police responded to her complaint regarding the first threatening phone call
that she received, 1 and yet she did not report the subsequent shooting to the
police.     While she contends that reporting would have been futile, the
evidence—particularly the fact that the police successfully prosecuted her
daughter’s attacker—does not compel that conclusion.
       Substantial evidence also supports the BIA’s conclusion that Benitez
Ramos failed to establish a well-founded fear of future persecution. After
Benitez Ramos fled to a nearby town following the shooting, she was able to
commute back and forth for work for approximately three years without
incident.    Neither she nor her daughter has suffered any harm since the
attempted shooting, which occurred in 2011. The record does not compel the
conclusion that Ramos Benitez has a well-founded fear of future persecution.



       1  The police did not pursue the matter because there was insufficient evidence of the
source of the phone call. But “as long as a government is taking reasonable steps to protect
its citizens from harm,” we cannot say that the government is unable or unwilling to control
alleged persecutors even if the government is ultimately unsuccessful. See Aligwekwe v.
Holder, 345 F. App’x 915, 921 (5th Cir. 2009).


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                                 No. 17-60602

      Benitez Ramos also challenges the denial of her claims for withholding
of removal and relief under CAT. “To be eligible for withholding of removal,
an applicant must demonstrate a ‘clear probability’ of persecution upon
return.” Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (quoting Faddoul v.
INS, 37 F.3d 185, 188 (5th Cir. 1994)). That is a higher standard than for
asylum, id., and Benitez Ramos’s failure to establish past persecution or a well-
founded fear of persecution sufficient for asylum therefore necessarily means
she has also failed to establish persecution sufficient to warrant withholding
of removal. Finally, substantial evidence supports the BIA’s conclusion that
Benitez Ramos is not entitled to relief under CAT. To obtain relief under CAT,
an applicant must show that she has been tortured “by or at the instigation of
or with the consent or acquiescence of a public official.”          8 C.F.R. §
1208.18(a)(1). Benitez Ramos argues that the most recent State Department
report for El Salvador demonstrates that the government is acquiescent to
gang violence, but she has failed to establish the requisite evidence that a
public official, “prior to the activity constituting torture, ha[d] awareness of
such activity and thereafter breach[ed] his or her legal responsibility to
intervene to prevent such activity.” Id. § 1208.18(a)(7); see also Morales v.
Sessions, 860 F.3d 812, 818 (5th Cir. 2017).
      PETITION FOR REVIEW DENIED.




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