Aldana-Ramirez v. Garland ( 2022 )

Case: 20-60871 Document: 00516203972 Page: 1 Date Filed: 02/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 15, 2022
No. 20-60871 Lyle W. Cayce
Summary Calendar Clerk
Delmy Esmeralda Aldana-Ramirez; Keydi Cristal
Aldana-Ramirez; Josue Isaac Estrada-Aldana,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 861 397
BIA No. A209 861 398
BIA No. A209 861 399
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 20-60871 Document: 00516203972 Page: 2 Date Filed: 02/15/2022
No. 20-60871
Delmy Esmerelda Aldana-Ramirez, a native and citizen of Honduras,
petitions for review of an order by the Board of Immigration Appeals (BIA)
dismissing her appeal from the denial of her applications for asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). Included in her applications as derivative beneficiaries are
her children Keydi Cristal Aldana-Ramirez and Josue Isaac Estrada-Aldana.
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d
220, 224 (5th Cir. 2018). Factual findings, including the denial of asylum,
withholding of removal, and CAT protection, are reviewed under the
substantial evidence test, meaning that this court may not overturn factual
findings unless the evidence compels a contrary conclusion. Chun v. INS, 40
F.3d 76, 78 (5th Cir. 1994) (per curiam). Questions of law are reviewed de
novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
Aldana-Ramirez’s asylum claim based on membership in the
particularized social group (PSG) of “Honduran women who are unable to
leave a domestic relationship” fails because that PSG is not cognizable. See
Gonzales-Veliz v. Barr, 938 F.3d 219, 232 (5th Cir. 2019) (holding that
“Honduran women unable to leave their relationship” was not cognizable).
Likewise, substantial evidence supports the BIA’s conclusion that Aldana-
Ramirez’s second PSG is not cognizable because “Honduran women who
are viewed as property by virtue of their position in a domestic relationship”
lacks particularity. See id. at 229. Furthermore, the PSG is not sufficiently
defined independently of the harm. See id. Aldana-Ramirez’s asylum claim
based on the political opinion of “opposition to unchallenged male
dominance and aggression” similarly fails because substantial evidence
supports the BIA’s conclusion that she was a victim of domestic violence and
not targeted because of any actual or imputed political opinions. See
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No. 20-60871
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002); see also Du v.
Barr, 975 F.3d 444, 447 (5th Cir. 2020).
In Vazquez-Guerra v. Garland, 7 F.4th 265, 271 (5th Cir. 2021), petition
for cert. filed (U.S. Oct. 27, 2021) (No. 21-632), we rejected the next argument
urged by Aldana-Ramirez—namely, that the BIA erred in failing to fully
analyze her withholding of removal claim. Although Aldana-Ramirez argues
that a claim for withholding of removal has a lower nexus standard than
asylum and therefore cannot be dismissed by virtue of a failed asylum claim,
we have held that “applicants for withholding of removal must similarly [to
an asylum applicant] show that a protected ground . . . was or will be at least
one central reason for persecuting the applicant.” See id. (cleaned up).
Regarding her CAT claim, Aldana-Ramirez has failed to produce
evidence that would compel a different conclusion that the Honduran
government would acquiesce in her torture. See Hakim v. Holder, 628 F.3d
151, 155 (5th Cir. 2010). Although the record includes evidence of the plight
of women in Honduras at the hands of domestic abusers and the low efficacy
of the Honduran government’s response, there is record support for the IJ’s
finding that the Honduran government is at least making attempts to assist
women subjected to domestic violence. Cf. Aviles-Tavera v. Garland, 22
F.4th 478, 486 (5th Cir. 2022) (noting that “a foreign government’s failure
to apprehend the persons threatening the alien or the lack of financial
resources to eradicate the threat or risk of torture do not constitute sufficient
state action” (cleaned up)).
Finally, this court lacks jurisdiction to review Aldana-Ramirez’s
argument that the BIA violated Matter of A-C-A-A-, 28 I. & N. Dec. 84 (Att’y
Gen. 2020), vacated by Matter of A-C-A-A-, 28 I. & N. Dec. 351 (Att’y Gen.
2021), because she did not exhaust her administrative remedies by raising it
first before the BIA in a motion to reconsider. See Avelar-Oliva v. Barr, 954
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No. 20-60871
F.3d 757, 766 (5th Cir. 2020); see also Gonzalez Hernandez v. Garland, 9 F.4th
278, 284–86 (5th Cir. 2021) (observing that a motion to reconsider is the
proper vehicle for raising a change in law with the BIA).
Accordingly, Aldana-Ramirez’s petition for review is DISMISSED
IN PART and otherwise DENIED.
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