IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60768

Summary Calendar 

POLYANE SOARES-DE OLIVEIRA DOS SANTOS, 

Petitioner 

v. 

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

Respondent 

Cons. w/No. 15-60770

RHYNARA LUIZA DUARTE, 

Petitioner 

v. 

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

Respondent 

Petitions for Review of Orders of the 

Board of Immigration Appeals 

BIA No. A200 022 852

BIA No. A202 004 494

United States Court of Appeals

Fif h Circuit

FILED

October 16, 2017

Lyle W. Cayce

Clerk

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Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

In this consolidated action, Polyane Soares-De Oliveria Dos Santos and 

her minor child, Rhynara Luiza Duarte, natives and citizens of Brazil, seek 

review of the orders of the Board of Immigration Appeals (BIA) dismissing 

their appeals of an immigration judge’s (IJ) orders of removal and decisions 

denying asylum, withholding of removal, and relief under the Convention 

Against Torture (CAT). The petitioners also seek review of the BIA’s decision 

denying their motion to reopen. 

We note that Dos Santos was ordered removed under 8 U.S.C. 

§ 1231(a)(5), pursuant to a reinstated order of removal. As such, she was 

deemed ineligible to apply for asylum, a determination that she unsuccessfully 

challenged before the BIA. Her argument before this court challenging her 

eligibility to apply for asylum is likewise unavailing. A panel of this court has 

held that § 1231(a)(5) bars aliens who, like Dos Santos, illegally reentered the 

United States after removal and whose removal orders are reinstated from 

applying for asylum. Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 

2015). Although Dos Santos argues that Ramirez-Mejia was wrongly decided, 

one panel of this court may not overrule the decision of another panel absent 

an intervening change in the law by way of statute or an unequivocal decision 

by this court sitting in banc or the Supreme Court. See United States v. 

Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013). Because the 2006 order of 

removal against Dos Santos was reinstated pursuant to § 1231(a)(5), the BIA

 

* 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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did not err in determining that Dos Santos was barred from applying for 

asylum. See Ramirez-Mejia, 794 F.3d at 489-90.

Nevertheless, Dos Santos was placed in “withholding only” proceedings. 

“To be eligible for withholding of removal, an applicant must demonstrate a 

‘clear probability’ of persecution on the basis of race, religion, nationality, 

membership in a particular social group, or political opinion.” Chen 

v. Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006). A clear probability of 

persecution means that it is “more likely than not” that her life or freedom 

would be threatened by persecution on account of one of the five categories. 

Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).

The record does not compel the conclusion that Dos Santos’s proposed 

group, “women who are [or have been] treated by their employers as property 

to be used, including sexually abused, as those employers desire,” is 

“sufficiently distinct” that it would be recognized in Brazilian society “as a 

discrete class of persons.” Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786-

87 (5th Cir. 2016) (internal quotation marks and citation omitted). Further, 

substantial evidence supports the BIA’s determination that Dos Santos’s 

employer threatened Dos Santos because she reported his criminal activities 

to the local police. Thus, the record does not compel the conclusion that Dos 

Santos would be persecuted on account of her membership in a particular social 

group. See Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012); Zhao 

v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005).

She also asserts that she was persecuted and feared being persecuted by 

her former employer “because of her feminist political opinion, her opinion 

concerning the importance of protecting the environment, and her anticorruption opinion.” However, because Dos Santos never argued before the 

BIA that any persecution was on account of “her feminist political opinion” or 

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her opinion regarding “the importance of protecting the environment,” and 

because the arguments she raised in the BIA cannot reasonably be tied to the 

arguments she now makes, these issues are unexhausted. See Omari 

v. Holder, 562 F.3d 314, 321-22 (5th Cir. 2009); Wang v. Ashcroft, 260 F.3d 448, 

452-53 (5th Cir. 2001); 8 U.S.C. § 1252(d)(1). We therefore lack jurisdiction 

over the petition insofar as Dos Santos asserts that she is entitled to 

withholding of removal based on her feminist opinion and her opinion 

supporting environmental protection. See Wang, 260 F.3d at 452-53; 

§ 1252(d)(1). 

As for whether any persecution was or would be on account of Dos 

Santos’s complaint regarding her employers’ illegal logging, the BIA concluded 

that there was no evidence that, in making a complaint to police, Dos Santos 

“was making a general political statement” and that it was “insufficient for the 

alien to merely demonstrate retaliatory harm, even if it is some way linked to 

the political system.” Dos Santos has not shown that the record compels a 

contrary conclusion. 

The record does not compel the conclusion that Duarte was eligible for 

asylum or entitled to withholding of removal based on her membership in the 

social group defined as “her mother’s family.” Likewise, the record does not 

compel the conclusion that “it is more likely than not” that the petitioners 

would be tortured if they returned to Brazil, given that there was no 

substantial evidence that any pain or suffering was or would be “inflicted by or 

at the instigation of or with the consent or acquiescence of a public official or 

other person acting in an official capacity.” Zhang v. Gonzales, 432 F.3d 339, 

344-45 (5th Cir. 2005) (internal quotation marks and citation omitted); see also

8 C.F.R. § 1208.16(c)(2). Because the record does not reflect that any public 

official had any knowledge of the pain and suffering caused by Dos Santos’s 

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former employer, the record does compel a finding of acquiescence. See 8 C.F.R. 

§ 1208.18(a)(7). The fact that the local police refused to investigate Dos 

Santos’s illegal logging complaint does not establish that police would 

acquiesce to any activity constituting torture. See Ontunez-Tursios v. Ashcroft, 

303 F.3d 341, 354 (5th Cir. 2002). 

 Finally, although we have jurisdiction to review decisions refusing to 

reopen or reconsider final orders of removal, see Mata v. Lynch, 135 S. Ct. 2150, 

2154 (2015), the moving party must satisfy a heavy burden, Altamirano-Lopez 

v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006). Notwithstanding the evidence 

that two individuals related to the petitioners were murdered in the 

petitioners’ home state of Minas Gerais, Brazil, during the pendency of the 

proceedings, we do not find that the BIA’s decision to deny the motion to reopen 

was “capricious, irrational, utterly without foundation in the evidence, based 

on legally erroneous interpretations of statutes or regulations, or based on 

unexplained departures from regulations or established policies.” BarriosCantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). 

Accordingly, the petition for review of the order denying the motion to 

reopen is DENIED. Duarte’s petition for review of the order denying her 

application for asylum, withholding of removal and relief under the CAT is 

DENIED; and Dos Santos’s petition for review of the order denying her 

application for withholding of removal and relief under the CAT is DENIED 

IN PART and DISMISSED IN PART. 

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