Jose Aranda-Galvan v. Loretta Lynch , 623 F. App'x 217 ( 2015 )

Case: 14-60562 Document: 00513278459 Page: 1 Date Filed: 11/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60562
Fifth Circuit
FILED
Summary Calendar November 19, 2015
Lyle W. Cayce
JOSE JESUS ARANDA-GALVAN, Clerk
Petitioner,
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 969 661
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Jose Jesus Aranda-Galvan, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals (BIA) order dismissing his appeal
and affirming the Immigration Judge’s (IJ) order of removal. The BIA
dismissed the appeal after finding no error in the IJ’s decision that
Aranda-Galvan was inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i), and
therefore ineligible for an adjustment of status, and that Aranda-Galvan was
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60562
not entitled to withholding of removal and relief under the Convention Against
Torture (CAT).
Aranda-Galvan does not challenge his removability as an alien convicted
of an aggravated felony based on his conviction for conspiring to transport
undocumented aliens within the United States. Rather, he challenges the
BIA’s determinations that he was inadmissible under § 1182(a)(6)(E)(i) based
on his participation in an alien smuggling scheme; he was not entitled to
withholding of removal because he failed to show that he feared being harmed
if he returned to Mexico based on his membership in “a particular social
group”; and he was not entitled to relief under the CAT because he failed to
demonstrate that it is more likely than not that he would be tortured by the
Zetas with the acquiescence of the Mexican government if he returned to
Mexico.
Although we are statutorily barred from reviewing a removal order
based on the alien’s commission of an aggravated felony, 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction to review constitutional claims and
questions of law, see § 1252(a)(2)(D), including the BIA’s legal determinations
whether an alien is statutorily ineligible for an adjustment of status, see
Sattani v. Holder, 749 F.3d 368, 370-72 (5th Cir. 2014) (per curiam), and
whether an alien’s proposed group is cognizable as “a particular social group”
for purposes of withholding of removal, see Hongyok v. Gonzales, 492 F.3d 547,
550 (5th Cir. 2007).
Constitutional claims and questions of law are reviewed de novo,
Rui Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011), and findings of fact are
reviewed for substantial evidence, Soriano v. Gonzales, 484 F.3d 318, 320 (5th
Cir. 2007). Because the BIA agreed with the IJ’s determinations regarding
Aranda-Galvan’s inadmissibility and eligibility for relief, the decisions of both
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the BIA and the IJ are reviewable. See Wang v. Holder, 569 F.3d 531, 536
(5th Cir. 2009); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
Inadmissibility
Aranda-Galvan contends that the BIA’s determination that he was
inadmissible under § 1182(a)(6)(E)(i) was based on a “flawed” and “overbroad”
interpretation of that statute because § 1182(a)(6)(E)(i) pertains only to those
individuals who, unlike him, aided, abetted, or encouraged an illegal crossing.
In the alternative, he argues that even if his offense falls under the purview of
§ 1182(a)(6)(E)(i), the BIA erred in determining that he failed to satisfy his
burden of demonstrating that he was not inadmissible.
As the BIA correctly determined, § 1182(a)(6)(E)(i) applied
notwithstanding that Aranda-Galvan was not present at the border and did
not assist in the actual crossing, see Soriano, 484 F.3d at 320-21, and
substantial evidence supports the BIA’s determination that Aranda-Galvan
failed to carry his burden of proving his admissibility. Accordingly, the BIA
did not err in affirming the IJ’s determination that Aranda-Galvan is
inadmissible under § 1182.
Withholding of removal and CAT relief
In this case, the BIA correctly noted that a group’s recognition as “a
particular social group” is determined by the perception of the society in
question, rather than by the perception of the persecutor, see Orellana-Monson
v. Holder, 685 F.3d 511, 519-20 (5th Cir. 2012) (noting that it is the perception
of the “members of a society” that matters), and concluded that the “evidence
[did] not establish that Mexican society in general (as opposed to members of
Los Zetas) identifies individuals with those characteristics as comprising a
distinct social group,” see Matter of C-A-, 23 I. & N. Dec. 951, 958-61 (BIA 2006)
(concluding that government informants do not constitute a particular social
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group, even when that group is defined narrowly to include solely informants
against a particular Columbian drug cartel).
Although Aranda-Galvan argues that individuals known to have
cooperated with the United States Government against the Zetas are a distinct
group because of the need to protect them and the fear of being thought to be
one of them, he has not shown that the evidence compels a conclusion that
Mexican society perceives those individuals as a distinct group. See Orellana-
Monson, 685 F.3d at 518.
Further, although Aranda-Galvan argues that the IJ denied him
due process by applying Matter of M-E-V-G-, 26 I. & N. Dec. 227, 228 (BIA
2014), and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014), he has not
adequately briefed this issue. Accordingly, the issue is waived. See Chambers
v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).
Relief under the CAT
Finally, because Aranda-Galvan challenges only the factual findings
upon which his CAT claim was denied, we lack jurisdiction to consider his
claim. See § 1252(a)(2)(C) & (D); Escudero-Arciniega v. Holder, 702 F.3d 781,
785 (5th Cir. 2012); Cruz v. Holder, 398 F. App’x 17, 18 (5th Cir. 2010).
The petition for review is DENIED in part and DISMISSED in part for
lack of jurisdiction.
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