United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-60554 

____________ 

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 

United States Court of Appeals 

Fifth Circuit 

FILED 

March 8, 2024 

Lyle W. Cayce 

Clerk 

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2 

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, MejiaAlvarenga 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. 

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3 

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

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4 

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 singlemember 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 MejiaAlvarenga 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 

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5 

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 

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6 

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. CardozaFonseca, 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. 

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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 

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8 

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, 

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“[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), 

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(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 threemember 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). 

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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). 

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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. 

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