IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60602

Summary Calendar

MARINA BENITEZ RAMOS,

Petitioner

v.

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

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A206 727 477

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Marina Benitez Ramos, a native and citizen of El Salvador, petitions for 

review of a decision by the Board of Immigration Appeals (BIA) affirming the 

immigration judge’s (IJ) decision denying her application for asylum, 

withholding of removal, and protection under the Convention Against Torture 

(CAT). In a hearing before the IJ, Benitez Ramos testified that after she 

reported the attempted rape of her daughter by a gang member to the 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2018

Lyle W. Cayce

Clerk

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Salvadoran police, she received two phone calls from someone threatening to 

kill her and her family if she did not drop the charges against her daughter’s 

attacker. She also testified that, after her daughter’s attacker was prosecuted 

and convicted, a man shot at her while she was on her way home from work. 

She believed that the phone calls and the shooting were perpetrated by other 

members of the gang to which her daughter’s attacker belonged.

We generally review only the decision of the BIA, but we will review the 

IJ’s decision where, as in this case, it affects the BIA’s analysis. Le v. Lynch, 

819 F.3d 98, 104 (5th Cir. 2016). Determinations of ineligibility for asylum, 

withholding of removal, or relief under CAT are reviewed for substantial 

evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). “Under 

the substantial evidence standard, reversal is improper unless we decide not 

only that the evidence supports a contrary conclusion, but also that the 

evidence compels it.” Id. (internal quotation marks and citations omitted). 

Benitez Ramos carries the burden of demonstrating that the evidence compels 

a contrary conclusion. Id.

The Attorney General has the discretion to grant asylum to “an alien 

who is unable or unwilling to return to [her] home country ‘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.’” INS 

v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1101(a)(42)(A)). 

To qualify for asylum, the persecution must be committed by either “the 

government or forces that a government is unable or unwilling to control.” 

Tesfamichael v. Gonzalez, 469 F.3d 109, 113 (5th Cir. 2006). 

Benitez Ramos argues that the two phone calls and shooting qualify as 

past persecution; that the circumstantial evidence supports a finding that the 

shooting was on account of her political opinion (opposition to violence) or 

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membership in a particular social group (people who report crimes to the police 

and assist family members in testifying); that the murder of her daughter’s 

father demonstrates that she has a well-founded fear of future persecution; 

that she did not report the second threatening phone call or the shooting to the 

police because it would have been futile; and that, based upon a recent State 

Department report on El Salvador, she is eligible for protection under CAT. 

Even assuming that Benitez Ramos established persecution on account 

of political opinion or membership in a particular social group, substantial 

evidence supports the BIA’s conclusion that she is not eligible for asylum 

because she failed to establish that the Salvadoran government is unable or 

unwilling to control her alleged persecutors. As Benitez Ramos concedes, the 

police responded to her complaint regarding the first threatening phone call 

that she received,1 and yet she did not report the subsequent shooting to the 

police. While she contends that reporting would have been futile, the 

evidence—particularly the fact that the police successfully prosecuted her 

daughter’s attacker—does not compel that conclusion. 

Substantial evidence also supports the BIA’s conclusion that Benitez 

Ramos failed to establish a well-founded fear of future persecution. After 

Benitez Ramos fled to a nearby town following the shooting, she was able to 

commute back and forth for work for approximately three years without 

incident. Neither she nor her daughter has suffered any harm since the 

attempted shooting, which occurred in 2011. The record does not compel the 

conclusion that Ramos Benitez has a well-founded fear of future persecution. 

 

1 The police did not pursue the matter because there was insufficient evidence of the 

source of the phone call. But “as long as a government is taking reasonable steps to protect 

its citizens from harm,” we cannot say that the government is unable or unwilling to control 

alleged persecutors even if the government is ultimately unsuccessful. See Aligwekwe v. 

Holder, 345 F. App’x 915, 921 (5th Cir. 2009). 

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Benitez Ramos also challenges the denial of her claims for withholding 

of removal and relief under CAT. “To be eligible for withholding of removal, 

an applicant must demonstrate a ‘clear probability’ of persecution upon 

return.” Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (quoting Faddoul v. 

INS, 37 F.3d 185, 188 (5th Cir. 1994)). That is a higher standard than for 

asylum, id., and Benitez Ramos’s failure to establish past persecution or a wellfounded fear of persecution sufficient for asylum therefore necessarily means 

she has also failed to establish persecution sufficient to warrant withholding 

of removal. Finally, substantial evidence supports the BIA’s conclusion that 

Benitez Ramos is not entitled to relief under CAT. To obtain relief under CAT, 

an applicant must show that she has been tortured “by or at the instigation of 

or with the consent or acquiescence of a public official.” 8 C.F.R. § 

1208.18(a)(1). Benitez Ramos argues that the most recent State Department 

report for El Salvador demonstrates that the government is acquiescent to 

gang violence, but she has failed to establish the requisite evidence that a 

public official, “prior to the activity constituting torture, ha[d] awareness of 

such activity and thereafter breach[ed] his or her legal responsibility to 

intervene to prevent such activity.” Id. § 1208.18(a)(7); see also Morales v. 

Sessions, 860 F.3d 812, 818 (5th Cir. 2017). 

PETITION FOR REVIEW DENIED.

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