Aguilar-De Martinez v. Garland ( 2021 )

Case: 20-60277 Document: 00515999725 Page: 1 Date Filed: 08/31/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 31, 2021
No. 20-60277
Summary Calendar Lyle W. Cayce
Clerk
Ana Ruth Aguilar-De Martinez; Samuel Vladimir
Martinez-Aguilar; Pamela Nicole Martinez-Aguilar;
Keren Eunice Martinez-Aguilar,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 305 288
BIA No. A209 305 289
BIA No. A209 305 296
BIA No. A209 305 297
Before Davis, Jones, and Elrod, 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opinion should not be published and is not precedent except under the limited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.
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No. 20-60277
Ana Ruth Aguilar-De Martinez and her derivative beneficiaries,
Samuel Vladimir Martinez-Aguilar, Pamela Nicole Martinez-Aguilar, and
Keren Eunice Martinez-Aguilar, are native and citizens of El Salvador. They
petition for review of the decision of the Board of Immigration Appeals (BIA)
dismissing their appeal of the denial by the immigration judge (IJ) of their
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT).
We review the decision of the BIA and will consider the IJ’s decision
only to the extent it influenced the BIA. Shaikh v. Holder, 588 F.3d 861, 863
(5th Cir. 2009). Questions of law are reviewed de novo and factual findings
are reviewed for substantial evidence. Id. Under the substantial evidence
standard, “[t]he alien must show that the evidence was so compelling that no
reasonable factfinder could conclude against it.” Wang v. Holder, 569 F.3d
531, 537 (5th Cir. 2009).
Aguilar-De Martinez asserts, for the first time on appeal, that under
Pereira v. Sessions, 138 S. Ct. 2105 (2018), the IJ lacked subject-matter
jurisdiction because the Notices to Appear failed to specify the date and time
of the initial hearing. We lack jurisdiction to consider Aguilar-De Martinez’s
unexhausted claim. See Pierre-Paul v. Barr, 930 F.3d 684, 690−92 (5th Cir.
2019), abrogated in part on other grounds by NizChavez v. Garland, 141 S. Ct.
1474 (2021); Flores-Abarca v. Barr, 937 F.3d 473, 477−78 (5th Cir. 2019).
Next, Aguilar-De Martinez challenges the BIA’s denial of her
applications for asylum and withholding of removal, contending that the BIA
erred in concluding that she failed to establish a nexus between the alleged
persecution and a statutorily protected ground. Aguilar-De Martinez’s brief
does not address the BIA’s conclusion that her proposed particular social
groups were not cognizable. See Orellana-Monson v. Holder, 685 F.3d 511, 519
(5th Cir. 2012). Accordingly, Aguilar-De Martinez has abandoned review of
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No. 20-60277
the issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Because
she does not argue that the evidence would compel a reasonable factfinder to
conclude that her proposed particular social groups were cognizable, she fails
to show that the BIA erred in dismissing her appeal from the denial of her
applications for asylum and withholding of removal. See Orellana-Monson,
685 F.3d at 519; Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). We
need not consider Aguilar-De Martinez’s nexus argument.
Finally, Aguilar-De Martinez asserts that the BIA erred in denying her
application for protection under the CAT. She maintains “that the constant
and menacing threats of the gangs, of which her children were aware, resulted
in a mental health diagnoses of hyperactivity disorder and depression in her
children.” According to Aguilar-De Martinez, “[t]his intentional infliction
of mental harm is sufficient to meet the broad definition of torture.” Because
this argument was not raised before the BIA or addressed by the BIA, we lack
jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 319 (5th Cir.
2009).
Accordingly, the petition for review is DISMISSED IN PART and
DENIED IN PART.
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