* District Judge of the Eastern District of Louisiana, sitting

by designation.

** Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 29, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-60080

LUIS GERARDO HIGAREDA ADAM,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

Appeal from the Board of Immigration Appeals

(A78 355 868)

Before BARKSDALE and CLEMENT, Circuit Judges, an d ENGELHARDT,

District Judge. *

PER CURIAM: **

At issue is the denial of Luis Gerardo Higareda Adam’s

application for asylum and withholding of removal and for r elief

under the Convention Against Torture (CAT). Also at issue is

whether remand is necessary because of: the Immigration Judge’s

claimed failure to give full and fair consideration to all of the

circumstances giving rise t o Higareda’s claim; errors in the2

r ecord; or the Board of Immigration Appeal’s (BIA) summary

affirmance of the IJ’s decision. DENIED

.

I.

The following factual recitation is from Higareda’s testimony

before the IJ: In 1998, Higareda, a native and citizen of Mexico,

was elected Mayor of the City of Reynosa in the State of

Tamaulipas. He was politically affiliated with a Senator and with

the Governor of Tamaulipas, both of whom were political opponents

of the Governor-Elect, Thomas Yarrington. In early 1999, Higareda

took several actions opposed by Yarrington, including implementing

a program to combat narcotics trafficking. After taking office in

February 19 99, Yarrington told Higareda that he was going to

“screw” him in retaliation for Higareda’s opposition.

In March 1999, Yarrington ordered an illegal state audit of a

public agency where Higareda served as General Manager. As a

result of the audit, criminal charges of embezzlement, abuse of

authority, and falsification of documents were brought against

Higareda; illegal arrest attempts followed. Higareda was removed

as Mayor of Reynosa and replaced with a Yarrington crony. Lawenforcement programs initiated by Higareda, but opposed by

Yarrington, were cancelled.

Higareda was admitted to the United States in April 2000

through a temporary visa, which expired that October. At his

deportation proceedings, Higareda admitted he had remained in the3

United States without authorization. Higareda applied for asylum

and withholding of removal and for relief under CAT.

In his asylum application, Higareda contended: he is innocent

of the charges against him in Mexico; his rights were violated by

the audit and criminal prosecution; the adverse actions he suffered

were politically motivated; his political opponents are still in

power; and he will be at risk of arrest, psychological torture, and

death if he returns to Mexico. Although Higareda conceded that he

has legal remedies in Mexico, he expressed fear for his safety

while in jail there, pursuing those remedies.

In addition to Higareda’s testimony at the hearing before the

IJ, a newspaper and television reporter from Mexico testified that:

as with Yarrington, the Mayor who replaced Higareda was reputed to

be involved in drug trafficking; and Higareda would be killed if

returned to Mexico and imprisoned. Similarly, a human rights

organization representative testified that: Higareda’s rights

would likely not be respected if he returned to Mexico; and he is

at risk of mental and physical torture and of being killed.

Additionally, the National Human Rights Commission summarized in a

letter to the IJ its determination that: Higareda was “wronged”;

and his human rights had been violated by the Tamaulipas Attorney

General, a criminal district court judge, the Reynosa City Council,

and the Tamaulipas State Congress.4

After the hearing, the IJ denied Higareda’s application,

finding that, although Higareda and his w itnesses were credible,

Higareda wished to avo id criminal prosecution, not the requisite

political persecution

. Higareda appealed the IJ’s decision to the

BIA, which summarily affirmed the IJ’s decision without opinion.

II.

“Although this Court generally reviews decisions of the BIA,

not immigrati on judges, it may review an immigration judge’s

decision when, as here, the BIA affirms without a dditional

explanation.” M

oin v. Ashcroft

, 335 F.3d 415, 418 (5th Cir. 2003).

When doing so, the IJ’s decision must be upheld “if there is no

error of law and if reasonable, substantial, and probative evidence

on the record, considered as a whole, su pports the decision’s

factual findings”. I d. Under this standard, the alien must

demonstrate that the “evidence was so compelling that no reasonable

factfinder could conclude against it”, C hun v. INS

, 40 F.3d 76, 78

(5th Cir. 1994); and, in this regard, an IJ’s findings on

credibility are afforded “great deference”, see Efe v. Ashcroft

,

293 F.3d 899, 905 (5th Cir. 2002).

A.

1.

Higareda claims that the IJ erred in finding his criminal

prosecution did not equate with political persecution, thus denying

his applic ation for asylum and withholding of departure. For5

political asylum, Higareda must prove that “a reasonable person in

the [same] circumstances would fear persecut ion”. R ojas v. INS

,

937 F.2d 186, 189 (5th Cir. 1991) (noting that “[i]t is sufficient

under this standard to show that persecution is a reasonable

possibility”). Under his claim for withholding of departure,

however, Higareda must prove “a clear probability of persecution”.

Id. Because his asylum request presents a lesser burden, we will

examine it first. Id. (explaining that, under “these standards,

it is easie r to qualify for asylum than for a withholding of

deportation”).

The Attorney General has discretion to gran t asylum to a

refugee under § 208(a) of the Immigration and Nationality Act

(INA). 8 U.S.C. § 1158(b)(1) (2000). A refugee is an alien “who

is unable or unwilling to return to

... [his] country [of

nationality] 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 ”. I d

. §

1101(a)(42) ( emphasis added). The alien bears the burden of

showing a causal connection between the persecution and one of the

five enumerated grounds. S ee INS v. Elias-Zacarias

, 502 U.S. 478,

482 (1992). The INA does not define persecution, but the term has

been construed to require showing “harm or suffering will be

inflicted upon [the alien] in order to punish [the alien] for

possessing a belief or characteristic a persecutor sought to6

overcome”. F addoul v. INS

, 37 F.3d 185, 1 88 (5th Cir. 1994)

(internal citations and quotation marks omitted).

Higareda claimed he came to the United States because he

feared for his life; he also feared he would be incarcerated if he

returned to Mexico and for his safety while in jail. The IJ found,

however, that Higareda was “fleeing because of prosecution and not

persecution”. Reasoning that “[p]rosecution for violation of the

law of general applicability is not persecution unless the

punishment is threatened for an invidious reas on”, the IJ found

that, in this instance, “[c]riminal prosecution does not constitute

persecution”. Because Higareda had not availed himself of the

legal means available for defending himself in Mexico, the IJ

concluded that Higareda merely fears “prosecut[ion] for the alleged

crime that he is being accused of

... [wh ich] does not lead to

persecution but prosecution”.

As stated by the IJ, criminal prosecution can equate with

persecution. L in v. INS

, 238 F.3d 239, 244 (3d Cir. 2001)

(summarizing the circuit’s precedent that fear of prosecution may

constitute persecution “if the prosecution is motivated by one of

the enumerated factors, such as political opin ion, and if the

punishment under the law is sufficiently seriou s to constitute

persecution”); Abdel-Masieh v. INS

, 73 F.3d 579, 584 (5th Cir.

1996) (“While punishment of criminal conduct in itself is not

persecution, where th at punishment ... is ‘excessive or7

arbitrary’[] and is motivated by one of the specified grounds, such

punishment would constitute persecution under the Act.”) (internal

citation and quotation marks omitted).

Higareda has not demo nstrated a well-founded fear of

p ersecution, but rather appears to be fleeing from criminal

prosecution. Therefore, Higareda has n ot shown “the evidence [is]

so compelling that no reasonable factfinder could conclude against

it”. Efe , 293 F.3d at 905.

2.

Because Higareda fails to satisfy his burden of proving a

well-founded fear of persecution in seeking asylum, he fails to

prove the higher “clear pro bability standard” in seeking

withholding of removal. Castillo-Rodriguez v. INS , 929 F.2d 181,

185 (5th Cir. 1991) (“In affirming the Board’s finding that

[Petitioner] is ineligible for asylum under section 208(a), we

necessarily conclude that he is ineligible for withholding of

deportation as well.”).

3.

To obtain relief under CAT, Higareda must prove “that it is

more likely than not that he

... would be tortured if removed to

[Mexico]”. 8 C.F.R. § 208.16(c)(2) (2005). Although Higareda’s

ineligibility for asylum does not n ecessarily preclude finding

eligibility for protection under CAT, the evidence offered by

Higareda fal ls far short of the high bar to obtain such relief,8

especially considering that H i gareda’s CAT claim was directly

related to his asylum claim. S ee Farah v. Ashcroft

, 348 F.3d 1153,

1156-57 (9th Cir. 2003); see a lso Roy v. Ashcroft , 389 F.3d 132,

140 (5th Cir. 2004) (“The CAT standard for relief does not require

persecution, but the higher bar of torture.”) (internal citation

and quotation marks omitted).

To support his CAT claim, Higareda relies again on reports

offered to the IJ, which state that the practice of torture still

exists in Mexico. That such practice may exist in Mexico does n ot

prove that it is more likely than not that Higareda will be

tortured if returned there. Higareda fails to show that “the

evidence is so compelling that no reasonable fact finder could fail

to find [him] eligible for CAT relief”. Id

.

B.

1.

Higareda claims t hat remand is necessary because the IJ did

not give full and fair consideration to all of the circumstances

giving rise to Higareda’s claims. The IJ’s decision, however,

reflects a thorough determination based on a complete review of the

record evidence. Further, as we have stated concerning the BIA,

the IJ had no duty “to write an exegesis on every contention. What

is required is merely that [he] consider the issues raised, and

announce [his] decision in terms sufficient to enable a reviewing

court to perceive that [he] has hea rd and thought and not merely9

reacted”. E fe

, 293 F.3d at 908 (internal citation and quotation

marks omitted).

2.

Higareda also contends that remand is necessary to correct

errors in the rec ord. Although there do appear to be numerous

errors in the transcript, the parties do not substantially disagree

regarding the underlying facts; and Higareda has not shown that the

inaccu racies of the transcript have prejudiced him. S ee United

States v. Neal , 27 F.3d 1035, 1044 (5th Cir. 1994), cert. denied

,

513 U.S. 1179 (1995).

3.

Finally, Higareda claims the BIA erred in employing summary

affirmance proce dures. S ee 8 C.F.R. § 1003.1(a)(7)(ii) (2004)

(allowing a single member of the BIA to affirm the IJ’s decision,

without opinion, if the member determines that the IJ reached the

correct result; that any errors were harmless or nonmaterial; and

that: “the issue on appeal is squarely controlled by existing Board

or federal court precedent”; or “the fa ctual and legal questions

raised on appeal are so insubstantial that three-Member review is

not warranted”). Because the IJ’s decision is supported by

substantial evidence, remand for addi tional review by the BIA is

not required. S ee Garcia-Melendez v. Ashcroft

, 351 F.3d 657, 662-

63 (5th Cir. 2003).10 III.

For the foregoing reasons, the petition for review is

DENIED.