Nixsy Melgar-Castillo v. Jefferson Sessions, III , 713 F. App'x 351 ( 2018 )

Case: 17-60130 Document: 00514360218 Page: 1 Date Filed: 02/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-60130
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 23, 2018
NIXSY LODANI MELGAR-CASTILLO,
Lyle W. Cayce
Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 568 849
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Nixsy Lodani Melgar-Castillo, a native and citizen of Honduras, has filed
a petition for review of the decision of the Board of Immigration Appeals (BIA)
dismissing her appeal of the Immigration Judge’s (IJ) denial of her application
for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). Melgar-Castillo argues that the IJ and the BIA erred regarding
the determinations that she was ineligible for withholding of removal and relief
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60130 Document: 00514360218 Page: 2 Date Filed: 02/23/2018
No. 17-60130
under CAT. Because she does not address the dismissal of her asylum
application as time barred, the claim is deemed abandoned. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
We review the decision of the BIA and will review the IJ’s decision only
to the extent it influenced the BIA’s decision. Masih v. Mukasey, 536 F.3d 370,
373 (5th Cir. 2008). The BIA’s legal conclusions are reviewed de novo, and its
factual findings, such as the finding that an alien is not eligible for withholding
of removal or CAT relief, are reviewed for substantial evidence. Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). We will not reverse the BIA’s
decision on substantial-evidence review unless we conclude “not only that the
evidence supports a contrary conclusion, but [also] that the evidence compels
it.” Id. (internal quotation marks and citation omitted).
The IJ and the BIA determined that Melgar-Castillo’s proposed group of
“women living in Honduras” lacks the requisite particularity and social
visibility. The evidence does not compel a finding that, even if Melgar-Castillo
suffered past persecution by a gang of drug traffickers and Honduran officials,
the persecution was on account of her “membership in the particular social
group.” See Zhang, 432 F.3d at 344; see also Hernandez-De La Cruz v. Lynch,
819 F.3d 786-87 (5th Cir. 2016).
Melgar-Castillo similarly has not shown, for purposes of relief under
CAT, that the evidence compels a finding that she more likely than not will be
tortured if returned to Honduras given her past ability to relocate within
Honduras without incident. See Zhang, 432 F.3d at 344; 8 C.F.R.
§ 208.16(c)(2), (3). Thus, the BIA’s conclusion that Melgar-Castillo was not
eligible for relief under CAT is supported by substantial evidence. See Zhang,
432 F.3d at 344.
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Case: 17-60130 Document: 00514360218 Page: 3 Date Filed: 02/23/2018
No. 17-60130
The petition for review is DENIED. The motion for leave to file an
amended brief is GRANTED.
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