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Matias Gomez v. Garland ( 2023 )


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  • Case: 22-60182        Document: 00516608329             Page: 1      Date Filed: 01/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60182
Summary Calendar                                 FILED
____________                               January 12, 2023
Lyle W. Cayce
Heydi Roxana Matias Gomez,                                                        Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of
the Board of Immigration Appeals
Agency No. A209 416 060
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Heydi Matias Gomez, a native and citizen of Guatemala, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) dismissing
her appeal and affirming the order of the immigration judge (I.J.) denying
asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). This court reviews the BIA’s decision and
considers the I.J.’s decision only to the extent that it influenced the BIA.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60182        Document: 00516608329              Page: 2      Date Filed: 01/12/2023
No. 22-60182
Orellana-Monson v. Holder,
    685 F.3d 511
    , 517 (5th Cir. 2012). The BIA’s
factual findings are reviewed for substantial evidence, its legal conclusions
de novo.
    Id.
     The substantial-evidence test “requires only that the BIA’s deci-
sion be supported by record evidence and be substantially reasonable.” Oma-
gah v. Ashcroft,
    288 F.3d 254
    , 258 (5th Cir. 2002). We will not reverse the
BIA’s factual findings unless the evidence compels a contrary conclusion.
Chen v. Gonzales,
    470 F.3d 1131
    , 1134 (5th Cir. 2006).
Matias Gomez maintains that the death threats and threats of rape,
along with the gang’s extortion demands, amounted to past persecution. The
BIA, however, did not address or adopt the I.J.’s finding that Matias Gomez
failed to show harm rising to the level of persecution. Instead, the BIA denied
asylum and withholding of removal because Matias Gomez’s proposed social
group was not cognizable and because she had failed to establish the requisite
nexus to a protected ground.
Because the BIA did not rely on the I.J.’s findings on past persecution
in denying relief, and because the BIA’s dispositive findings related to cog-
nizability, as discussed below, are not challenged by Matias Gomez, we need
not consider her contentions related to past persecution. See Rui Yang v.
Holder,
    664 F.3d 580
    , 584 n.3 (5th Cir. 2011). 1
Before the I.J., Matias Gomez defined her proposed social group as
“persons in professions or positions susceptible to extortion.” The BIA
agreed with the I.J. that this proposed social group was not cognizable be-
_____________________
1
Matias Gomez also challenges the BIA’s determination that she failed to show the
requisite nexus between the harm she suffered and feared in Guatemala and a protected
ground. Because the cognizability issue is dispositive, however, we likewise need not con-
sider her arguments regarding nexus. See INS v. Bagamasbad,
    429 U.S. 24
    , 25 (1976) (“As
a general rule courts and agencies are not required to make findings on issues the decision
of which is unnecessary to the results they reach.”).
2
Case: 22-60182       Document: 00516608329          Page: 3    Date Filed: 01/12/2023
No. 22-60182
cause it lacked particularity and social distinction.
In her petition for review, Matias Gomez does not address the cogniz-
ability of the proposed social group that she advanced before the I.J. and the
BIA. Instead, she avers that she is a member of the political social group of
“Guatemala business owners and also that the gang members imputed an
anti-gang political opinion to her after she resisted their extortion demands;
she posits that the BIA erred in failing to consider whether she was perse-
cuted based on this statutorily protected ground.
Generally, the BIA will not consider an argument that could have
been, but was not, raised before the I.J. Matter of W-Y-C- & H-O-B-,
    27 I. & N. Dec. 189
    , 190 (BIA 2018). Though Matias Gomez raised the issue
of imputed political opinion before the BIA, she did not press it before the I.J.
Therefore, the BIA was under no obligation to consider this new theory on
appeal. See
    id.
    This court is without jurisdiction to consider the issue of imputed
political opinion because it was not considered by the BIA and is unex-
hausted. See Toledo–Hernandez v. Mukasey,
    521 F.3d 332
    , 334 (5th Cir. 2008).
Further, because Matias Gomez does not challenge the BIA’s rejection—as
not cognizable—of her proposed social group of persons in professions or
positions susceptible to extortion, she has abandoned the issue before this
court. See Soadjede v. Ashcroft,
    324 F.3d 830
    , 833 (5th Cir. 2003).
Finally, Matias Gomez claims that the BIA erred in denying her claim
for CAT protection because it is more likely than not that she would be tor-
tured by the gang members who threatened her if she were returned to Guate-
mala. Matias Gomez did not “fairly present” any substantive challenges to
the I.J.’s denial of CAT relief before the BIA. See Omari v. Holder,
    562 F.3d 314
    , 321 (5th Cir. 2009). Therefore, she has failed to exhaust her administra-
tive remedies, and this court lacks jurisdiction to consider her arguments
3
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No. 22-60182
regarding the denial of such relief. See Roy v. Ashcroft,
    389 F.3d 132
    , 137 (5th
Cir. 2004).
The petition for review is DISMISSED in part and DENIED in
part.
4