Ibarra-Avilez v. Garland

Case: 19-60273 Document: 00516172254 Page: 1 Date Filed: 01/19/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 19, 2022 No. 19-60273 Lyle W. Cayce Clerk Juan Carlos Ibarra-Avilez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 178 008 Before Higginbotham, Stewart, and Wilson, Circuit Judges. Per Curiam:* Juan Carlos Ibarra-Avilez, a native and citizen of Mexico, entered the United States illegally in 1996. Fifteen years later, a Notice to Appear charged Ibarra with inadmissibility and commenced removal proceedings. An immigration judge (IJ) denied Ibarra’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60273 Document: 00516172254 Page: 2 Date Filed: 01/19/2022 No. 19-60273 The Board of Immigration Appeals (BIA) dismissed Ibarra’s appeal. Ibarra now petitions our court for review. Ibarra contends: the BIA erred in determining the asylum application was untimely; the BIA failed to view Ibarra’s adolescent mistreatment through the lens of a child and, for purposes of withholding of removal, record evidence compels the conclusion that there is a clear probability of persecution in Mexico; and the BIA misjudged the evidence supporting CAT protection. For the reasons discussed below, Ibarra’s claims fail, and the petition is DISMISSED in part and DENIED in part. I. Ibarra is a native and citizen of Mexico who was “born with the masculine gender” but now identifies “more in the feminine gender.” Ibarra testified that beginning at a young age, students and classmates in Mexico (including parents of classmates) verbally harassed and physically assaulted Ibarra for more than a decade because of Ibarra’s feminine behavior. These assaults resulted in bruises and headaches. No injuries were ever reported to the police because, according to Ibarra, the town was too small and lacked a police force. In 1996, at the age of 18, Ibarra illegally entered the United States near El Paso, Texas. Shortly thereafter, Ibarra fully identified as a woman and began hormone therapy. Ibarra underwent breast augmentation surgery in 2016 and, according to the record, plans to pursue additional sexual- reassignment medical procedures in the future. In 2011, Ibarra was served with a Notice to Appear and charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i) of the Immigration and Nationality Act. Ibarra then submitted an application for asylum, withholding of removal, and relief under the CAT. The IJ held a hearing in 2016, at which Ibarra testified regarding the breast implants, childhood 2 Case: 19-60273 Document: 00516172254 Page: 3 Date Filed: 01/19/2022 No. 19-60273 abuse, and fear of “homophobic people” and the risk of violent harm if returned to Mexico. Ibarra called Dr. Thomas M. Davies as a witness with purported expertise on transgender asylum claims pertaining to …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals