Gamez-Padilla v. Garland ( 2022 )


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  • Case: 20-60682   Document: 00516161005       Page: 1    Date Filed: 01/10/2022
    United States Court of Appeals
    for the Fifth Circuit                            United States Court of Appeals
    Fifth Circuit
    FILED
    January 10, 2022
    No. 20-60682                        Lyle W. Cayce
    Summary Calendar                           Clerk
    Laurin Steffany Gamez-Padilla; Jose Santos Ramos-
    Gamez; Cinthya Yamileth Ramos-Castillo; Gabriela
    Alejandra Ramos-Ramos; Deysi Leonora Padilla-Soler;
    Jose Santos Ramos Maldonado,
    Petitioners,
    versus
    Merrick Garland, U.S. Attorney General,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A206 429 889
    BIA No. A206 429 890
    BIA No. A206 429 891
    BIA No. A206 429 892
    BIA No. A206 694 277
    BIA No. A206 694 278
    Case: 20-60682       Document: 00516161005        Page: 2    Date Filed: 01/10/2022
    No. 20-60682
    Before Davis, Jones, and Elrod, Circuit Judges.
    Per Curiam:*
    Jose Santos Ramos Maldonado (the lead respondent), his wife Deysi
    Leonora Padilla-Soler, his adult children, Cinthya Yamileth Ramos-Castillo
    and Laurin Steffany Gamez-Padilla, and his grandchildren, Jose Santos
    Ramos-Gamez and Gabriela Alejandro Ramos-Ramos, are natives and
    citizens of Honduras. They seek review of a Board of Immigration Appeals
    (BIA) decision dismissing their appeal from the immigration judge’s denial
    of their applications for asylum, withholding of removal, and protection
    under the Convention Against Torture (CAT).
    As an initial matter, the petitioners do not brief any argument
    challenging the BIA’s finding that Ramos Maldonado was not persecuted due
    to his political opinion. Nor do they challenge the BIA’s determination that
    Gamez-Padilla and Ramos-Castillo did not have a reasonable fear of
    persecution on account of their membership in the family of Ramos
    Maldonado. Accordingly, they have waived those issues. See Chambers v.
    Mukasey, 
    520 F.3d 445
    , 448 n.1 (5th Cir. 2008); see also Fed. R. App.
    P. 28(a)(8)(A).
    Findings of fact, including the denial of asylum, withholding of
    removal, and CAT protection, are reviewed under the substantial evidence
    standard. Zhang v. Gonzales, 
    432 F.3d 339
    , 344 (5th Cir. 2005). This court
    may not reverse factual findings unless the evidence “compels” reversal—
    i.e., the evidence must be “so compelling that no reasonable factfinder could
    conclude against it.” Wang v. Holder, 
    569 F.3d 531
    , 536-37 (5th Cir. 2009).
    *
    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.
    2
    Case: 20-60682      Document: 00516161005          Page: 3    Date Filed: 01/10/2022
    No. 20-60682
    Here, Ramos Maldonado sought asylum and withholding of removal
    based on his membership in the particular social group of “members of the
    board of the community organization Colonia Monte De Sinai.” To be a
    member of a particular social group, an applicant must establish that the
    group is “(1) composed of members who share a common immutable
    characteristic; (2) defined with particularity; and (3) socially distinct within
    the society in question.” Matter of M-E-V-G-, 
    26 I. & N. Dec. 227
    , 237 (BIA
    2014). A common immutable characteristic must be a characteristic that
    cannot be changed or should not be required to change because it is
    fundamental to the applicant’s identity or conscience. Hernandez-De La
    Cruz v. Lynch, 
    819 F.3d 784
    , 786 (5th Cir. 2016). Substantial evidence
    supports the BIA’s determination that Ramos Maldonado failed to establish
    that the organization’s board members share an immutable characteristic.
    See id.; see also Mwembie v. Gonzales, 
    443 F.3d 405
    , 415 (5th Cir. 2006).
    Accordingly, Ramos Maldonado failed to establish that his proposed
    particular social group is cognizable, and this portion of the petition for
    review is denied. See Zhao v. Gonzales, 
    404 F.3d 295
    , 306 (5th Cir. 2005).
    Substantial evidence also supports the BIA’s decision to deny relief
    under the CAT because the family failed to show acquiescence or willful
    blindness in any torture by a government official. See Hakim v. Holder,
    
    628 F.3d 151
    , 155-56 (5th Cir. 2010). The record indicates that arrests were
    made in response to the shooting of Ramos Maldonado. “Neither the failure
    to apprehend the persons threatening the alien, nor the lack of financial
    resources to eradicate the threat or risk of torture constitute sufficient state
    action for purposes of the [CAT].” Tamara-Gomez v. Gonzales, 
    447 F.3d 343
    , 351 (5th Cir. 2006).
    The petition for review is DENIED.
    3