Ibarra-Sanchez v. Garland ( 2023 )

Case: 21-60705 Document: 00516644335 Page: 1 Date Filed: 02/13/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60705
FILED
February 13, 2023
Summary Calendar
Lyle W. Cayce
Clerk
Edwin Eduardo Ibarra-Sanchez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petitions for Review of Orders of the
Board of Immigration Appeals
Agency No. A046 302 870
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam:*
Edwin Eduardo Ibarra-Sanchez, a native and citizen of Mexico and
former lawful permanent resident of the United States, petitions this court
for review of a decision by the Board of Immigration Appeals (BIA) denying
his applications for withholding of removal and relief under the Convention
Against Torture (CAT). Ibarra-Sanchez also petitions for review of the
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-60705
BIA’s denial of his motions for reconsideration and remand. Because Ibarra-
Sanchez is proceeding pro se, we liberally construe his filings. See Monsonyem
v. Garland, 36 F.4th 639, 645 (5th Cir. 2022).
In seeking review of the denial of withholding of removal and CAT
relief, Ibarra-Sanchez relies primarily on new evidence that was not properly
before the BIA. See Enriquez-Gutierrez v. Holder, 612 F.3d 400, 409 (5th Cir.
2010). We consider that evidence only in relation to his claim of ineffective
assistance of counsel and his requests for a remand and reconsideration.
Factual findings are reviewed for “substantial evidence.” Wang v. Holder,
569 F.3d 531, 536–37 (5th Cir. 2009). The substantial evidence standard is
deferential, meaning that “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
Substantial evidence supports the agency’s determination that Ibarra-
Sanchez failed to show that “it is more likely than not” that his life or
freedom as a Jehovah’s Witness would be threatened by persecution if he
were returned to Mexico. See Lopez-Perez v. Garland, 35 F.4th 953, 957 (5th
Cir. 2022) (quotation marks and citations omitted). Further, Ibarra-
Sanchez’s contention that, for purposes of withholding of removal, his
proposed group of non-Spanish speakers with substance addiction qualifies
as a particular social group is unsupported by the record properly before the
agency. The argument thus does not compel a conclusion contrary to the
agency’s determination that he failed to show either a particular social group
or the required nexus to his feared persecution. See Zhang v. Gonzales, 432
F.3d 339, 344 (5th Cir. 2005).
We now consider CAT relief. Contrary to Ibarra-Sanchez’s assertion,
the BIA did not impose a requirement of past persecution because of a
particular social group, but properly applied the correct standard for CAT
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relief. See id. at 344–45 (reciting required showing for CAT relief).
Moreover, the absence of an adverse credibility finding, and Ibarra-
Sanchez’s bare contention that the BIA therefore should grant CAT relief,
fail to compel the conclusion that he faced a likelihood of torture by or with
government acquiescence if returned to Mexico. See 8 U.S.C. §
1252(b)(4)(B).
Ibarra-Sanchez also contends that he had ineffective assistance of
counsel. The BIA determined that the new evidence Ibarra-Sanchez
submitted to the BIA but which had not be introduced earlier by counsel did
not show counsel’s alleged errors regarding the evidence “were prejudicial
to his case.” See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006). The
articles and reports, often only partially reproduced, and Ibarra-Sanchez’s
family’s affidavits, do not indicate that he faced a “clear probability” of
future persecution on account of a protected ground or likely torture by or
with the acquiescence of Mexican officials. See Zhang, 432 F.3d at 344–45.
Thus, the proposed evidence fails to compel the conclusion that, but for
counsel’s claimed deficient performance in not submitting this evidence in
the immigration court, the result of his removal proceedings would probably
have been different. See Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018);
Wang, 569 F.3d at 536–37.
Ibarra-Sanchez also seeks review of the BIA’s denial of
reconsideration. The BIA addressed his ineffective assistance claim in its
decision on appeal. Further, Ibarra-Sanchez’s bare assertions of prejudice
from counsel’s errors show no abuse of discretion in the BIA’s conclusion
that he failed to identify any legal error or establish that the BIA overlooked
some aspect of the case when it rejected his ineffective assistance of counsel
claim in its initial decision. See Chambers v. Mukasey, 520 F.3d 445, 448 (5th
Cir. 2008); Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
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As to remand, Ibarra-Sanchez contends that his proposed new
evidence, including two news articles submitted for the first time with his
motion, substantiates his claims and compels the conclusion that Jehovah’s
Witnesses and non-Spanish speaking deportees with substance addiction are
subject to persecution and murder in Mexico. However, Ibarra-Sanchez has
shown no abuse of discretion in the BIA’s conclusion that remand was not
warranted because the proposed new evidence was not “likely [to] change
the result in the case.” See Suate-Orellana v. Barr, 979 F.3d 1056, 1062 (5th
Cir. 2020).
The petitions for review are DENIED.
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