Liliana Mercado-Ventura v. William Barr, U. ( 2019 )

Case: 19-60022 Document: 00515253354 Page: 1 Date Filed: 12/31/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-60022
FILED
December 31, 2019
Summary Calendar
Lyle W. Cayce
Clerk
LILIANA CAROLINA MERCADO-VENTURA; LEANDRO SEBASTIAN
VANEGAS-MERCADO,
Petitioners
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A206 798 110
A206 798 111
Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Liliana Carolina Mercado-Ventura and her minor son, natives and
citizens of El Salvador, petition for review of the Board of Immigration Appeals’
(BIA) denying their challenge to an Immigration Judge’s (IJ) denial of their
applications for asylum and withholding of removal. Petitioners contend: their
testimony before the IJ sufficiently raised a familial-based particular social
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 19-60022 Document: 00515253354 Page: 2 Date Filed: 12/31/2019
No. 19-60022
group (in addition to the particular social group the IJ considered); and the
BIA abused its discretion, and denied them a full and fair hearing, by failing
to remand the case for the IJ to further consider this additional particular
social group.
To the extent the BIA relied upon the IJ’s decision, we may review the
decisions of both the BIA and the IJ. See Efe v. Ashcroft, 293 F.3d 899, 903
(5th Cir. 2002) (citation omitted). “We review factual findings of the BIA and
IJ for substantial evidence, and questions of law de novo . . . .” Zhu v. Gonzales,
493 F.3d 588, 594 (5th Cir. 2007) (citation omitted). The determination an
alien is ineligible for asylum or withholding of removal is a factual finding.
Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir. 2006) (citation
omitted). Whether a proposed particular social group is cognizable for
purposes of asylum and withholding of removal is a question of law. See
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016) (citation
omitted).
To qualify for asylum, an alien must show that (1) she was persecuted or
has a well-founded fear of persecution, (2) “by the government or forces that a
government is unable or unwilling to control”, (3) on account of a protected
ground, including membership in a particular social group. Tesfamichael v.
Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citations omitted). “The standard
for obtaining withholding of removal is even higher than the standard for
asylum, requiring a showing that it is more likely than not that the alien’s life
or freedom would be threatened by persecution on one of those [protected]
grounds.” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)
(citation omitted).
An alien has the burden of proof and the duty of delineating the contours
of the proposed particular social group before the IJ. See Matter of W-Y-C- and
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No. 19-60022
H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018) (citations omitted). In this case,
counsel clearly delineated for the IJ the proposed social group as “Salvadoran
women . . . who fear gangs and violence in their home country” and affirmed
that particular social group when questioned by the IJ. Counsel’s statement
of the particular social group was clear and unequivocal; the IJ, therefore, was
not obligated to seek further clarification. See id.A different or narrower proposed social group presented on appeal to the
BIA is not sufficiently raised before the IJ and need not be considered by the
BIA. Id. at 191–92 (citations omitted). The BIA, therefore, did not err in
finding counsel failed to raise the alternative group before the IJ and declining
to consider it.
Additionally, we agree with the Government that petitioners abandoned
any challenge to the BIA’s denial of relief based on the particular social group
presented to the IJ by failing to adequately brief the issue. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (per curiam) (citation omitted).
Petitioners, therefore, have not established eligibility for asylum and,
therefore, cannot do so for the higher withholding-of-removal standard.
DENIED.
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