United States Court of Appeals Fifth Circuit 

## FILED July 3, 2007 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-61169

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### P UANGSUK 

### H ONGYOK 

### ,

Petitioner,

VERSUS


### ALBERTO 

### R. G ONZALES 

### , U.S. ATTORNEY G ENERAL ,



### Respondent.

_________________________ Petition for Review of a Decision of the Board of Immigration Appeals 

### m A79 733 664

______________________________

Before G ARWOOD , S MITH , and D EM OSS , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: Puangsuk Hongyok seeks review of a decisio n of the Board of Im migration Appeals (“BIA”) denying wit hholding of removal und er 8 U.S.C. § 1231(b)(3) and protection under the Convention against Torture (“CAT”), 8 C. F.R. §§ 1208.16 through -18. We deny the peti tion. I. Hongyok is an adult female native and cit izen of Thailand. In 1999 or 2000 she entered the Unit ed States at or near Los Angeles, Califo rnia, eit her wit hout inspection or as a touri st. In February 2003 she was charged wit h being removable as an alien illegally present in the Unit ed States. She appeared before an immigration judge (“IJ”), who fo und th at she was in the Unit ed States illegally and thus was removable.

Because she was unable to establish that she had sought asylum wit hin one year of en-2

tering the Unit ed States, Ho ngyok sought wit hholding of removal and relief under the CAT in lieu of asylum. She contended that she would be subject to persecution and torture because she is a member of a “particular soci al group” com

posed of vict ims of sex traf ficking who have escaped. 1 Hongyok testified that she had intended to l eave Thailand to com

e to the Unit ed Stat e s wit h people who had prom ised her a jo b. Instead, her passport was taken away from her, and she was taken to New York and fo rced to work as a prostitute to repay a $45,000 debt owed to the people who had brought her to the Unit ed States. She was co nfined inside a New York brothel fo r six mo nt hs by persons she identified as Kim and Yok.

At the end of her time in New York, Hongyo k was told she had paid off $30,000 of the debt and was taken to Chicago and then to At lant a. Apparently her stay in At lanta was unpro f it able fo r the traf

fickers, and she was told to return to New York.
Instead, Hongyok used mo ney she had received in At lant a to f

ly t o Los Angeles. She went from Los Angeles to Philadelphia, At lantic Cit y, and Houston. She was arrested for prostitution in all t hree of the latter cities. Hongyok testifies th at she still owes Kim and Yok $5,000, and they are still lo oking fo r her and have called her mo ther in Thailand “about five times” to say Hongyok still owed them mo ney and was in “big danger” of being hurt. Hongyok believes associates of Kim and Yok will kill her if she returns to Thailand, and there is nowhere in Thailand where she would be safe from the traffickers. Hongyok does not believe the Thai government will protect her from Kim and Yok or their gang, because the Thai police have been th oroughl y corrupted by sex traffickers. She also presented docum

entary evidence reporting a widespread sex trade in Thailand and southeastern Asia and the Thai government’s toleration of and com

plicit y in sex traf

ficking.

II. Alt hough the IJ granted wit hholding of remo val and relief under the C A T, the BIA reversed. The BIA declined to categorize escaped sex traf

ficking vict ims as a particular soci al group and fo und th at Hon gyok’s fears of p ersecution were based on an outstanding debt. The BIA further determined that Hongyo k had failed to m

eet her burden to prove th at persecution on her return to Thailand was “mo re l ikely t han not.” S ee INS v. Cardoza

Fonseca , 480 U.S. 421, 423 (1987). The BIA point ed out th at Hongyok had not specified when the alleged th

reatening phone calls to her
mo t her had been made; it concluded that the callers “seemed mo re int erested in having the debt repaid than in seeking [Hongyok].”

III. We review the BIA’s decision, not that of the IJ. S ee Mikhael v. INS , 115 F.3d 299, 302 (5th Cir. 1997). Where the BIA has not ado pted the IJ’s conclusion or findings, the IJ’s determ

inat io ns ar e irrelevant to our review. S ee id .; Chun v. INS , 40 F. 3d 76, 78 (5th Cir. 1994).

The government argues th at we lack even the authorit y t o review the BIA’s decision, because Hongyok has f

ailed to exhaust her 1 See § 123 1(b)(3) (providing relief for aliens subject to removal who, if removed, would be subject to persecution on the basis of membership in a particular social group).3

administ rative remedies. 2 We disagree.

The government emphasizes th at Hongyo k’s proposed group of “sex trafficking victims who escape from a sex t r afficking ring”
was not adopted by the IJ and thus was not befo re the BIA on the government’s appeal. Instead the IJ defined the protected soci al group as “sex slaves from foreign countries who are brought to the Unit ed States under false pretenses and fo rced at the th reat of death and destruction to participate in sexual activit ies.”

This disparity, however, does not implicat e the straightforward requirement th at a peti

tioner present her ground fo r relief to the administ rative agency in the fir st ins tan ce in ord er to avoid waiver. W

ang v. Ashcroft , 260 F.3d 448, 452 (5th Cir. 2001). Hongyok has asked fo r the same relief



### SS wit hholding of remo val because of membership in a protected soci al group and protection under the CAT 

### SS at every agency and judicial level invo lved in this case and has done so with the same proposed fo rm

ulation of the soci al group. The government fails to point to any mat eri al difference between Hongyok’s prop o sed soci al group and the one adopted by the IJ.

We are aware of no case conditioning federal court jurisdiction on the absence of insignificant semantic differenc es between a petitioner’s proposed social group and the definition fo rm ulated by the agency, and we decline to announce such a condition here. Although the IJ’s formulation of the social group might be som ewhat mo re legally precise than that proposed by Hongyok 

### SS

and Hongyok would h ave been entitled to defend it 

### S S she is not conclusively barred from judicial relief; she presents the court wit h the same definit io n she originally proposed to the agency, and th at definit io n does not significant ly differ from the
one considered on appeal by the BIA. She has adequately presented her proposed ground fo r relief to the administ rativ e agency in the first inst ance. See id . at 452.

IV. We need not and do not address the BIA’s legal conc lusion that escaped sex slaves are not a protected soci al group; the BIA’s factual conclusion th at Hongyok ha s failed to meet her burden to prove th at she personally would
mo re likely t han not be subject to persecutionin Thailand is supported by substantial evidence. 3 No al

ien is entitled to statutory wit hhold ing of removal unless the Attorney General finds th at there is a “clear probability,” i. e., “[u]nless it is mo re likely than not,” that the al ien will be subjected to persecution on account of race, religion, membership in a particular soci al group o r pol it ical o pinio n if she is return ed to her country of origin. I NS v. Stevic , 467 U.S. 407, 424, 430 (1984). Under the substantial evidence standard, the BIA’s finding is “conclusive unless any reasonably adjudicator would be com

pelled to conclude to the contrary .” 4The BIA’s finding is supported by its observations that Hongyok did not specify whether the calls to her mo ther wer e made
re centl y and did not otherwise indicate how

2 See 8 U.S.C. § 1252(d)(1); see also Townsend
v. INS , 799 F.2d 179, 181 (5th Cir. 1984) (stating that § 1252(d)(1)’s administrative exhaust i on re
quirement implicates the court’s jurisdiction). 3 See Efe v. Ashcroft , 293 F.3d 899, 90 6 (5th Cir. 2002) (reviewing BIA factual determinations for substantial evidence).

4 8 U.S.C. § 1252(b)(4)(B); see also OntunezTur sios v. Ashcroft , 303 F.3d 341, 351 (5th Cir. 2002).4

the people sh e fears would harm her would find her in Thailand, given that she need not declare to anyo ne why she was re t urning or discuss her experiences in the Unit ed St ates. Because a reasonable finder of fact would not have been com

pelled to find th at it is mo re likely t han not that Hongyok would be persecuted on her return to Thailand, we are obliged to affirm the BIA’s conclusion. 5 S ee Efe , 293 F.3d at 906.

V. Wit hholding of removal pursuant to the CAT requires a finding not merely of probable persecution, but also th at th e persecution would amo unt to torture. 8 C.F.R. § 1208.18- (a)(1); Efe , 293 F.3d at 907. A determination of “t orture” requires, inter alia , th at the requisit e degree of “pain or suffering is inflict ed by
or at the inst igation of or wit h the consent or acquiescence of a public of ficial or other person acting in an of

ficial capacity.” § 1208.18- (a)(1). The torture need not be inflict ed as a resul t of membership in a social group. E fe , 293 F.3d at 907.

An alyses of an alien’s eligibilit y fo r statutory wit hholding of removal and of his eligibilit y fo r relief under the CAT are independent. Tamara-Gomez v. Gonza l es , 447 F.3d 343, 350 (5th Cir. 2006). The BIA’s finding, however, discussed above and supported by substanti al evidence, th at Hong yo k f ailed to demonstrate th at she would probably be subject to persecut io n is sufficient to support its rul ing th at she was not eligible fo r protection under the CAT because she has failed to demonstrate th at she will likely suffer “pain and suffering” at anyone’s hands and thus has failed to demonstrate th at she would be subject to torture. Id . at 350-51. Accordingly, we DENY the peti tion for review.

5 Hong y ok’s counsel contended at oral argument that the BIA was obliged to review the IJ’s findings of fact for clear error, rather than de novo
. See 8 C.F.R. § 1003.1(d)(3)(i). Hongyok’s procedural right to the application of a particular standard of review is reviewable. See 5 U.S.C. § 704 (“A preliminary, procedural, or intermediate agency action or ruling not directly reviewable i s subject to review on the review of the final agency action.”). We need not evaluate whether the BIA used an incorrect st a ndard of review, however, because Hongyok’s failure to raise this contention in her opening brief waived the issue. See United States v. Thibodeaux , 211 F.3d 910, 912 (5th Cir. 2000).