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

_______________

PUANGSUK HONGYOK,

Petitioner,

VERSUS

ALBERTO R. GONZALES,

U.S. ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of a Decision of

the Board of Immigration Appeals

m A79 733 664

______________________________

Before GARWOOD, SMITH, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Puangsuk Hongyok seeksreview of a decision of the Board of Immigration Appeals

(“BIA”) denyingwithholding ofremovalunder

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 petition.

I.

Hongyok is an adult female native and citizen of Thailand. In 1999 or 2000 she entered

the United States at or near Los Angeles, California, either without inspection or as a tourist.

In February 2003 she was charged with being

removable as an alien illegally present in the

United States. She appeared before an immigration judge (“IJ”), who found thatshe wasin

the United Statesillegallyand thus wasremovable. 

Because she was unable to establish that

she had sought asylum within one year of en-
2

tering the United States, Hongyok sought

withholding 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 social

group” composed of victims ofsex trafficking

who have escaped.1

Hongyok testified that she had intended to

leave Thailand to come to the United States

with people who had promised her a job. Instead, her passport was taken away from her,

and she was taken to New York and forced to

work as a prostitute to repay a $45,000 debt

owed to the people who had brought her to

the United States. She was confined inside a

New York brothel for six months by persons

she identified as Kim and Yok.

At the end of her time in New York, Hongyok was told she had paid off $30,000 of the

debt and was taken to Chicago and then to

Atlanta. Apparently her stay in Atlanta was

unprofitable for the traffickers, and she was

told to return to New York.

Instead, Hongyok used money she had received in Atlanta to fly to Los Angeles. She

went fromLos Angelesto Philadelphia, Atlantic City, and Houston. She was arrested for

prostitution in all three of the latter cities.

Hongyok testifies that she still owes Kim

and Yok $5,000, and they are still looking for

her and have called her mother in Thailand

“about five times” to say Hongyok still owed

them money and was in “big danger” of being

hurt. Hongyok believes associates of Kim and

Yok will kill her ifshe returnsto 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

thoroughly corrupted by sex traffickers. She

also presented documentary evidence reporting a widespread sex trade in Thailand and

southeastern Asia and the Thai government’s

toleration of and complicity in sex trafficking.

II.

Although the IJ granted withholding of removal and relief under the CAT, the BIA

reversed. The BIA declined to categorize escaped sex trafficking victims as a particular

social group and found that Hongyok’s fears

of persecution were based on an outstanding

debt. The BIA further determined that Hongyok had failed to meet her burden to prove

that persecution on her return to Thailand was

“more likely than not.” See INS v. CardozaFonseca, 480 U.S. 421, 423 (1987). The BIA

pointed out that Hongyok had not specified

when the alleged threatening phone callsto her

mother had been made; it concluded that the

callers “seemed more interested in having the

debt repaid than in seeking [Hongyok].”

III.

We review the BIA’s decision, not that of

the IJ. See Mikhael v. INS, 115 F.3d 299, 302

(5th Cir. 1997). Where the BIA has not

adopted the IJ’s conclusion or findings, the

IJ’s determinations are irrelevant to our review. See id.; Chun v. INS, 40 F.3d 76, 78

(5th Cir. 1994).

The government argues that we lack even

the authority to review the BIA’s decision,

because Hongyok has failed to exhaust her

1

See § 1231(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

administrative remedies.2 We disagree.

The government emphasizes that Hongyok’s proposed group of “sex trafficking victims who escape from a sex trafficking ring”

was not adopted by the IJ and thus was not before the BIA on the government’s appeal. Instead the IJ defined the protected social group

as “sex slaves from foreign countries who are

brought to the United States under false pretenses and forced at the threat of death and

destruction to participate in sexual activities.”

This disparity, however, does not implicate

the straightforward requirement that a petitioner present her ground for relief to the administrative agency in the first instance in order to avoid waiver. Wang v. Ashcroft, 260

F.3d 448, 452 (5th Cir. 2001). Hongyok has

asked for the same reliefSSwithholding of removal because of membership in a protected

social group and protection under the CATSS

at every agency and judicial level involved in

this case and has done so with the same proposed formulation of the social group. The

government fails to point to any material difference between Hongyok’s proposed social

group and the one adopted by the IJ.

We are aware of no case conditioning federal court jurisdiction on the absence of insignificant semantic differences between a petitioner’s proposed social group and the definition formulated by the agency, and we decline

to announce such a condition here. Although

the IJ’s formulation of the social group might

be somewhat more legally precise than that

proposed by HongyokSSand Hongyok would

have been entitled to defend itSSshe is not

conclusively barred from judicial relief; she

presentsthe court with the same definition she

originally proposed to the agency, and that definition does not significantly differ from the

one considered on appeal by the BIA. She has

adequately presented her proposed ground for

relief to the administrative agency in the first

instance. See id. at 452.

IV.

We need not and do not address the BIA’s

legal conclusion that escaped sex slaves are

not a protected social group; the BIA’sfactual

conclusion that Hongyok has failed to meet

her burden to prove that she personally would

more likely than not be subject to persecution

in Thailand is supported by substantial evidence.3 No alien is entitled to statutory withholding of removal unless the Attorney General finds that there is a “clear probability,”

i.e., “[u]nless it is more likely than not,” that

the alien will be subjected to persecution on

account of race, religion, membership in a particular social group or political opinion if she

is returned to her country of origin. INS 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 compelled to conclude to

the contrary.”4

The BIA’s finding is supported by its observations that Hongyok did not specify

whether the calls to her mother were made

recently 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 exhaustion requirement implicates the court’s jurisdiction).

3

See Efe v. Ashcroft, 293 F.3d 899, 906 (5th

Cir. 2002) (reviewing BIA factual determinations

for substantial evidence).

4

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

2002).
4

the people she fears would harm her would

find her in Thailand, given that she need not

declare to anyone why she was returning or

discuss her experiences in the United States.

Because a reasonable finder of fact would not

have been compelled to find that it is more

likely than not that Hongyok would be persecuted on her return to Thailand, we are obliged to affirm the BIA’s conclusion.5

See Efe,

293 F.3d at 906.

V.

Withholding of removal pursuant to the

CAT requires a finding not merely of probable

persecution, but also that the persecution

would amount to torture. 8 C.F.R. § 1208.18-

(a)(1); Efe, 293 F.3d at 907. A determination

of “torture” requires, inter alia, that the requisite degree of “pain or suffering is 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.” § 1208.18-

(a)(1). The torture need not be inflicted as a

result of membership in a social group. Efe,

293 F.3d at 907.

Analyses of an alien’s eligibility for statutory withholding of removal and of his eligibilityfor relief under the CAT are independent.

Tamara-Gomez v. Gonzales, 447 F.3d 343,

350 (5th Cir. 2006). The BIA’s finding, however, discussed above and supported by substantial evidence, that Hongyok failed to

demonstrate that she would probably be subject to persecution is sufficient to support its

ruling that she was not eligible for protection

under the CAT because she has failed to demonstrate that she will likely suffer “pain and

suffering” at anyone’s hands and thus has

failed to demonstrate thatshe would be subject

to torture. Id. at 350-51.

Accordingly, we DENY the petition for

review.

5 Hongyok’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 is subject to review on the review of the final agency action.”). We need not evaluate whether the BIA

used an incorrect standard 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).