Case: 21-60462 Document: 00516558289 Page: 1 Date Filed: 11/28/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 28, 2022 No. 21-60462 Lyle W. Cayce Clerk Ornella Angelina Hammerschmidt, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A095 368 118 Before Smith, Barksdale, and Haynes, Circuit Judges. Haynes, Circuit Judge: Ornella Angelina Hammerschmidt (“Hammerschmidt”) petitions for review of the Board of Immigration Appeals’s (“BIA”) final order denying her application for, inter alia, withholding of removal under the Immigration and Nationality Act (“INA”) and protection under the Convention Against Torture (“CAT”). For the following reasons, the petition is DENIED in part and DISMISSED in part. Case: 21-60462 Document: 00516558289 Page: 2 Date Filed: 11/28/2022 No. 21-60462 I. Background Hammerschmidt, a native and citizen of Venezuela, was paroled into the United States for deferred inspection in 2001. The crimes and attendant consequences which form the basis of this petition began in 2009 when Hammerschmidt pled guilty to making a false statement in an immigration petition in violation of 18 U.S.C. § 1546(b). In 2015, Hammerschmidt was indicted for aiding and abetting and making false, fictitious, or fraudulent claims to the IRS alongside her co-defendant husband in violation of 18 U.S.C. § 287. Though the indictment alleged that Hammerschmidt was involved in twenty-two counts of false or fraudulent tax returns, Hammerschmidt pled guilty to only a singular count—the fraudulent request of a tax refund in the amount of $2,812.00. Nevertheless, she was ordered to pay restitution jointly and severally with her husband in the amount of $45,365 and was sentenced to 48 months in prison. Following these convictions, Hammerschmidt was placed in removal proceedings for the commission of a “crime involving moral turpitude” and seeking to procure a visa by fraud or misrepresentation. The Immigration Judge (“IJ”) sustained both charges of removability. Hammerschmidt then applied for withholding of removal under the INA and deferral under CAT and purportedly reserved her asylum claim for appeal to the BIA. The IJ denied the application, concluding that Hammerschmidt’s testimony regarding alleged persecution and torture was not credible. Even assuming her testimony was credible, the IJ held that her withholding claim would nevertheless fail because her conviction under § 287 constituted an aggravated felony and a particularly serious crime, rendering her ineligible for both asylum and withholding of removal. The IJ likewise denied CAT deferral on the adverse credibility finding and the absence of proof that she would suffer torture if returned to Venezuela. The BIA adopted and affirmed. 2 Case: 21-60462 Document: 00516558289 Page: 3 Date Filed: 11/28/2022 No. 21-60462 Hammerschmidt timely petitions for review, contending that her conviction under § 287 cannot qualify as an “aggravated felony” or a “particularly serious crime,” the BIA’s adverse credibility finding is not supported by the record, and she provided sufficient evidence showing her eligibility for CAT protection. II. Jurisdiction Before reaching the merits, we begin, …
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