Ever Flores v. William Barr, U. S. Atty Gen ( 2019 )

Case: 18-60495 Document: 00515043885 Page: 1 Date Filed: 07/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60495 FILED
Summary Calendar July 22, 2019
Lyle W. Cayce
Clerk
EVER FLORES, also known as Ever Flores-Amaya,
Petitioner
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 567 720
Before REAVLEY, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Ever Flores, a native and citizen of Honduras, seeks review of an order
of the Board of Immigration Appeals (BIA) dismissing his appeal and affirming
the immigration judge’s (IJ’s) order removing him to Honduras and denying
his application for asylum and withholding of removal. Flores’s request for
relief was based on his claim that he feared being persecuted if he returned to
Honduras “based on his familial relationship to his father who’s been
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60495 Document: 00515043885 Page: 2 Date Filed: 07/22/2019
No. 18-60495
threatened by his aunt’s domestic partner based on an inheritance that [his
father] received.”
The IJ and the BIA, which affirmed for the reasons set forth by the IJ,
assumed that Flores articulated a valid social group, i.e., his membership in
his family, but concluded that he nevertheless failed to establish the requisite
nexus between that enumerated ground and the harm he feared, finding that
the feared harm was based on the land that was inherited. Additionally, the
IJ found that Flores “failed to establish the requisite harm sufficient to rise to
the level of persecution” and failed to establish not only that his fear of future
harm was objectively reasonable but also that he would be harmed by someone
that government officials were unwilling or unable to control.
We “review the BIA’s decision and only consider the IJ’s decision to the
extent that it influenced the BIA.” Shaikh v. Holder, 588 F.3d 861, 863 (5th
Cir. 2009). Because the BIA affirmed the IJ’s decision for the reasons stated
by the IJ, we may review both decisions. See id. We review the finding that
an alien is not eligible for asylum or withholding of removal under the
substantial evidence standard. Orellana-Monson v. Holder, 685 F.3d 511, 517-
18 (5th Cir. 2012); Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Regardless whether Flores can demonstrate a nexus between the alleged
harm and an enumerated ground, see 8 U.S.C. § 1101(a)(42)(A); Milat v.
Holder, 755 F.3d 354, 360 (5th Cir. 2014); see also Sealed Petitioner v. Sealed
Respondent, 829 F.3d 379, 383 (5th Cir. 2016) (noting that an asylum applicant
must establish that the enumerated ground “was or will be at least one central
reason for persecuting the applicant”), Flores has failed to demonstrate that
the evidence compels the conclusion that he was persecuted in the past. There
was no evidence showing that the alleged persecution was inflicted by the
“government or forces that a government is unable or unwilling to control,”
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No. 18-60495
Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006), or that Flores has
a well-founded fear of future persecution, see Zhao v. Gonzales, 404 F.3d 295,
307 (5th Cir. 2005).
The evidence presented during the removal proceedings showed that no
one in Flores’s family, including Flores’s father, was ever physically harmed by
the alleged persecutor; that Flores never had any personal contact or
communications with the alleged persecutor; and that Flores’s father was
threatened in person only once and was not injured. Further, according to
Flores’s testimony, the police responded when they were contacted by his
father and not only issued a restraining order against the alleged persecutor
but also jailed the alleged persecutor.
Flores has not satisfied his burden of showing that the record compels
the conclusion that he is eligible for asylum. Because we conclude that
substantial evidence supports the determination that Flores is not entitled to
asylum and withholding of removal, see Morales v. Sessions, 860 F.3d 812, 817
(5th Cir. 2017) (recognizing that an applicant “who is ineligible for asylum is
not entitled to withholding of removal”), Flores’s petition for review is
DENIED. We do not address Flores’s rather disingenuous claim that he is
entitled to relief under the Convention Against Torture, given that he
expressly denied that he was seeking such relief during the removal
proceedings; he raised the issue for the first time before the BIA; and the BIA
did not address the issue or consider Flores’s eligibility for such relief. See
Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010).
The petition for review is DENIED.
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