United States Court of Appeals

for the Fifth Circuit

No. 19-60767

Summary Calendar

Berta Alicia Baires-Lemos, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A206 251 103

Before Barksdale, Graves, and Oldham, Circuit Judges.

Per Curiam:*

Petitioner Berta Alicia Baires-Lemos, a native and citizen of 

El Salvador, first entered the United States illegally in 2013 and was removed. 

She reentered illegally in 2015 and applied for immigration relief. She has 

filed a petition seeking review of the Board of Immigration Appeals’ (BIA) 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2021

Lyle W. Cayce

Clerk

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affirming the immigration judge’s (IJ) denial of her application for 

withholding of removal and protection under the Convention Against 

Torture (CAT).

Baires claimsthe BIA’s decision upholding the IJ’s denial of relief was 

erroneous because the IJ failed to ask her to articulate her proposed social 

group. She further asserts the BIA erred in upholding the IJ’s finding that 

the threats she experienced in El Salvador did not rise to the level of 

persecution. Finally, she claims the BIA erred in upholding the IJ’s 

conclusion that she had failed to prove it was more likely than not she would 

be tortured if returned to El Salvador.

“When the BIA affirms the IJ’s decision without an opinion, as is the 

case here, the IJ’s decision is the final agency decision for purposes of judicial 

review on appeal.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). 

We review the immigration court’s factual findings for substantial evidence;

its legal conclusions, de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 

2007).

According to Baires, she fled El Salvador with her youngest son 

because the gangs would not “leave [her] alone and in peace”. She 

explained: her adult daughter’s ex-boyfriend was the leader of a gang; and,

after her daughter ended the relationship, he threatened to kill Baires and her 

youngest son. 

While the ex-boyfriend threatened Baires’ daughter many times via 

text messages, Baires only testified to isolated incidents of verbal harassment. 

She testified the ex-boyfriend had once confronted her on her way home from 

work and warned she should not “cross through” that part of town. Later, 

he stopped her in the street and asked her why she was prohibiting her 

daughter from seeing him. As the IJ noted, Baires was never physically 

harmed by the ex-boyfriend, and neither were any of her children. Indeed, 

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Baires’ daughter, who was subjected to most of the ex-boyfriend’s threats, 

continues to live in El Salvador and has not been harmed.

Baires has proven, at most, she suffered two incidents of harassment 

unaccompanied by physical harm or a significant deprivation of liberty. See 

Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir. 2004) (defining 

persecution as “an extreme concept” requiring “more than a few isolated 

incidents of verbal harassment” (internal quotation marks and citation 

omitted)). As such, the evidence does not compel reversing the IJ’s 

determination that Baires did not establish harm rising to the level of 

persecution warranting withholding of removal. See Chen, 470 F.3d at 1134.

According to Baires, it was erroneous for the IJ not to ask her to 

identify a particular social group (PSG). She contends: the proposed social 

groups of gender and family were raised in her testimony; and the IJ erred in 

failing to consider and make factual findings on those groups. 

Before the BIA, Baires asserted she was a member of two PSGs:

“people in fear of violence in El Salvador”; and “Salvadorian Women Seen 

as Vulnerable and Unprotected by [a] Criminal Gang Organization”. These 

proposed social groups differ, however, from the groups raised in Baires’

petition for review. For example, she contends that, through her testimony 

before the IJ, she “may have articulated” various family and gender based 

social groups, such as “Salvadoran mother of young single female unable to 

leave relationship with male partner”.

Because Baires did not raise these proposed social groups in her appeal 

to the BIA, or otherwise challenge the IJ’s purported error in failing to ask 

her to articulate a PSG, she has failed to exhaust her available remedies, and 

we lack jurisdiction to consider such claims. See Omari v. Holder, 562 F.3d 

314, 321 (5th Cir. 2009).

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Finally, the IJ reasonably denied Baires’ request for protection under 

CAT. In seeking to establish one of the conditions that must be satisfied for 

such relief, although Bairestestified she would be killed by her daughter’s exboyfriend and his gang if she returned to El Salvador, as noted supra, there is 

no evidence in the record she was ever physically harmed by the ex-boyfriend

or his gang. Baires identified only a single instance where the ex-boyfriend

possibly threatened her, when she was on her way home from work.

Baires claims mental suffering can constitute the requisite torture 

under BIA precedent and the ex-boyfriend’s persistent text messages to her 

daughter threatening the family satisfy the definition of torture. As Baires

acknowledges, however, to constitute torture, mental pain and suffering 

must be “prolonged mental harm” caused by conduct such as “threatened 

infliction of severe physical pain or suffering” or “[t]he threat of imminent 

death” or “[t]he threat that another person will imminently be subjected to 

death”. 8 C.F.R. § 208.18(a)(4). The ex-boyfriend’s conduct would not 

cause the sort of mental pain and suffering protected against by CAT.

Baires’ testimony regarding the murder of her cousin by gang 

members likewise does not establish “it is more likely than not” she will be 

tortured if returned to El Salvador. Mwembie v. Gonzales, 443 F.3d 405, 415

(5th Cir. 2006). As the IJ noted, while Baires speculated her daughter’s exboyfriend was involved in the murder, she admitted she did not know why 

her cousin was killed or who had killed him.

DISMISSED in part; DENIED in part. 

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