Machado v. Garland ( 2021 )

Case: 20-60014 Document: 00515833371 Page: 1 Date Filed: 04/22/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-60014 April 22, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Mayra Jackeline Machado,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 073-900-867
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Mayra Jackeline Machado, a native and citizen of El Salvador,
petitions for review of the order of the Board of Immigration Appeals (BIA)
denying her request for deferral of removal under the United Nations
Convention Against Torture (CAT). In addition to addressing the merits of
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-60014
Machado’s claims for relief, the Government moves to dismiss the petition
for lack of jurisdiction. We grant the motion, and dismiss the petition, insofar
as Machado challenges the BIA’s discretionary decision not to assign her
appeal of the immigration judge’s denial of CAT relief to a three-member
panel. See Cantu-Delgadillo v. Holder, 584 F.3d 682, 691 (5th Cir. 2009). In
all other respects, we deny the motion to dismiss. See Nasrallah v. Barr,
140 S. Ct. 1683, 1688 (2020).
To obtain CAT relief, Machado must show that if removed to
El Salvador, it is more likely than not that she will be tortured by, or with the
acquiescence of, government officials acting under color of law. See 8 C.F.R
§ 208.16(c)(2); Chen v. Gonzales, 470 F.3d 1131, 1139 (5th Cir. 2006). With
respect, at least, to the BIA’s determination that she had not shown the
requisite government acquiescence, Machado fails to show that “the
evidence not only supports [a contrary] conclusion, but compels it.” I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see Gomez-Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009). The Board chose between two reasonable
constructions of the evidence, and its conclusion that the Salvadoran
government, notwithstanding the efficacy of its efforts, has neither
acquiesced to nor turned a blind eye to gang violence and sexual violence
against women is supported by substantial evidence. See Zhang v. Gonzales,
432 F.3d 339, 344 (5th Cir. 2005); Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
354 (5th Cir. 2002); 8 C.F.R. § 208.18(a)(7). Accordingly, we conclude that
the BIA’s denial of CAT relief was substantially reasonable. See Zhang, 432
F.3d at 344. Because our resolution of this issue does not turn on Machado’s
credibility, we do not reach her challenge to the immigration judge’s adverse
credibility finding.
Machado’s due process arguments are likewise unavailing. See
Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020). Even if she could
show a due process violation—which she does not—Machado makes no
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No. 20-60014
showing that she was prejudiced, let alone substantially so, by any of the
complained-of actions of the immigration judge, the warden of her detention
facility, or federal immigration officials. See Arteaga-Ramirez v. Barr, 954
F.3d 812, 813 (5th Cir. 2020).
The motion to dismiss the petition for review is GRANTED IN
PART and DENIED IN PART, and the petition is DISMISSED IN
PART for lack of jurisdiction. The petition for review is otherwise
DENIED.
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