Hongyok v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
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 seeks review of a deci-
sion of the Board of Immigration Appeals
(“BIA”) denying withholding of removalunder
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 citi-
zen of Thailand. In 1999 or 2000 she entered
the United States at or near Los Angeles, Cali-
fornia, 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 immi-
gration judge (“IJ”), who found that she was in
the United States illegally and thus was remov-
able.
Because she was unable to establish that
she had sought asylum within one year of en-

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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 of sex 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. In-
stead, 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, Hong-
yok 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 re-
ceived in Atlanta to fly to Los Angeles. She
went from Los Angeles to Philadelphia, Atlan-
tic 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 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 govern-
ment 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 report-
ing 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 re-
moval and relief under the CAT, the BIA
reversed. The BIA declined to categorize es-
caped 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 Hong-
yok had failed to meet her burden to prove
that persecution on her return to Thailand was
“more likely than not.” See INS v. Cardoza-
Fonseca, 480 U.S. 421, 423 (1987). The BIA
pointed out that Hongyok had not specified
when the alleged threatening phone calls to 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 re-
view. 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 sub-
ject to persecution on the basis of membership in a
particular social group).

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administrative remedies.2 We disagree.
The government emphasizes that Hong-
yok’s proposed group of “sex trafficking vic-
tims who escape from a sex trafficking ring”
was not adopted by the IJ and thus was not be-
fore the BIA on the government’s appeal. In-
stead the IJ defined the protected social group
as “sex slaves from foreign countries who are
brought to the United States under false pre-
tenses 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 peti-
tioner present her ground for relief to the ad-
ministrative agency in the first instance in or-
der to avoid waiver. Wang v. Ashcroft, 260
F.3d 448, 452 (5th Cir. 2001). Hongyok has
asked for the same reliefSSwithholding of re-
moval 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 pro-
posed formulation of the social group. The
government fails to point to any material dif-
ference between Hongyok’s proposed social
group and the one adopted by the IJ.
We are aware of no case conditioning fed-
eral court jurisdiction on the absence of insig-
nificant semantic differences between a peti-
tioner’s proposed social group and the defini-
tion 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
presents the court with the same definition she
originally proposed to the agency, and that de-
finition 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’s factual
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 evi-
dence.3 No alien is entitled to statutory with-
holding of removal unless the Attorney Gen-
eral 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 par-
ticular 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 ob-
servations 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 re-
quirement 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 Ontunez-
Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir.
2002).

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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 perse-
cuted on her return to Thailand, we are ob-
liged 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 requi-
site 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 per-
son 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 statu-
tory withholding of removal and of his eligi-
bility for relief under the CAT are independent.
Tamara-Gomez v. Gonzales, 447 F.3d 343,
350 (5th Cir. 2006). The BIA’s finding, how-
ever, discussed above and supported by sub-
stantial evidence, that Hongyok failed to
demonstrate that she would probably be sub-
ject to persecution is sufficient to support its
ruling that she was not eligible for protection
under the CAT because she has failed to dem-
onstrate that she will likely suffer “pain and
suffering” at anyone’s hands and thus has
failed to demonstrate that she would be subject
to torture. Id. at 350-51.
Accordingly, we DENY the petition for
review.
5 Hongyok’s counsel contended at oral argu-
ment 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 proce-
dural right to the application of a particular stan-
dard of review is reviewable. See 5 U.S.C. § 704
(“A preliminary, procedural, or intermediate agen-
cy action or ruling not directly reviewable is sub-
ject to review on the review of the final agency ac-
tion.”). 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).

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