Guzman v. U.S. Immigration ( 2023 )

Case: 22-20374 Document: 00516641012 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-20374 February 9, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
Eynel Aroldo Guzman,
Petitioner—Appellant,
versus
U.S. Immigration Department,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-2305
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Enyel Aroldo Guzman, a native and citizen of El Salvador, and
proceeding pro se, as he did in district court, appeals the dismissal of his action
for lack of jurisdiction and for failure to state a claim under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Almost seven years after the Board of
Immigration Appeals (BIA) affirmed the Immigration Judge’s (IJ) denial of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20374 Document: 00516641012 Page: 2 Date Filed: 02/09/2023
No. 22-20374
his application for relief, Guzman filed in district court an “Application for
Asylum under Article III of the Convention Against Torture”. The court
treated the pleading as a petition for writ of habeas corpus under 28 U.S.C.
§ 2241.
Guzman on appeal: raises new due-process challenges that were not
presented in district court; and reasserts he will be harmed if removed to El
Salvador because he renounced his membership in a criminal gang there. He
fails to challenge the court’s conclusion that it lacked jurisdiction to consider
Guzman’s action because “[t]he 2005 REAL ID Act removed federal district
courts’ jurisdiction over removal orders and designated appellate courts as
the appropriate forums instead”. Likewise, he does not challenge the court’s
conclusion that his assertions were unexhausted before the BIA and IJ.
“Although we liberally construe the briefs of pro se appellants, we also
require that arguments be briefed to be preserved.” Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993) (citation omitted). Because Guzman fails to
challenge the court’s reasons for dismissing his complaint, including that the
court lacked jurisdiction, he abandoned those issues on appeal. E.g., id. at
224–25; see also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
Along that line, and regarding the assertions Guzman raises for the
first time on appeal, he does not maintain extraordinary circumstances exist
in his case such that this court should consider them. Our court has refused
to find extraordinary circumstances where a party’s briefing “is devoid of any
argument that a miscarriage of justice would result from our failure to
consider” an issue raised for the first time on appeal. AG Acceptance Corp. v.
Veigel, 564 F.3d 695, 700 (5th Cir. 2009). Because the burden is on Guzman
to establish such circumstances, and he fails to even brief this standard, we
decline to consider his new assertions that, in his immigration proceedings:
he misunderstood the questions posed to him during his removal hearing due
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Case: 22-20374 Document: 00516641012 Page: 3 Date Filed: 02/09/2023
No. 22-20374
to his limited English proficiency; and proceeding without an attorney
prevented his establishing his eligibility for immigration relief.
AFFIRMED.
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