Dionisio Atlahua-Temoxtle v. Matthew Whitaker ( 2019 )

Case: 17-60846 Document: 00514815316 Page: 1 Date Filed: 01/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60846 January 30, 2019
Summary Calendar
Lyle W. Cayce
Clerk
DIONISIO ATLAHUA-TEMOXTLE, also known as Josue Rodriguez,
Petitioner
v.
MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 143 705
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Dionisio Atlahua-Temoxtle, a native and citizen of Mexico, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the denial by an immigration judge (IJ) of withholding of
removal and relief under the Convention Against Torture (CAT). He argues
that he is entitled to relief based on a showing of past persecution and a fear
of future persecution on account of his membership in a particular social group.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60846 Document: 00514815316 Page: 2 Date Filed: 01/30/2019
No. 17-60846
We generally have authority to review only the decision of the BIA, but
we will consider the IJ’s decision when, as here, it influenced the determination
of the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). We review the
BIA’s rulings of law de novo and its findings of fact for substantial evidence.
Id. at 594; see also 8 U.S.C. § 1252(b)(4)(B) (substantial evidence standard).
Atlahua-Temoxtle’s claims of attempted extortion are more akin to
harassment and do not rise to the level of past persecution. See Arif v.
Mukasey, 509 F.3d 677, 680 (5th Cir. 2007); Majd v. Gonzales, 446 F.3d 590,
595-96 (5th Cir. 2006). In addition, Atlahua-Temoxtle cannot demonstrate a
nexus to any protected ground because we have made clear that we do “not
recognize extortion as a form of persecution.” Ramirez-Mejia v. Lynch, 794
F.3d 485, 493 (5th Cir. 2015) (internal quotation marks and citations omitted).
Moreover, Atlahua-Temoxtle’s speculative statements regarding his fears of
future persecution are not sufficient to demonstrate an “objective ‘clear
probability’ of persecution.” Majd, 446 F.3d at 595; see Bouchikhi v. Holder,
676 F.3d 173, 181-82 (5th Cir. 2012); Eduard v. Ashcroft, 379 F.3d 182, 193
(5th Cir. 2004). The BIA’s determination that Atlahua-Temoxtle failed to
establish eligibility for withholding of removal is supported by substantial
evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
Atlahua-Temoxtle failed to fairly present his CAT claim to the BIA.
Therefore, the claim is unexhausted, and we do not have jurisdiction to
consider it. See Omari v. Holder, 562 F.3d 314, 317 (5th Cir. 2009). Atlahua-
Temoxtle’s petition for review is DISMISSED in part for lack of jurisdiction
and DENIED in part.
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