Lemus v. Keisler ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
Fifth Circuit
FOR THE FIFTH CIRCUIT F I L E D
September 21, 2007
No. 06-60664
Charles R. Fulbruge III
Summary Calendar Clerk
EDDI ROMEO LEMUS FERRO; YADIRA PATRICI VILLAVICENCIO
DUARTE DE LEMUS; ANA DALILA LEMUS; ANDREA BEATRIC
VILLAVICENCIO DUARTE DE LEMUS
Petitioner
v.
PETER D. KEISLER, ACTING U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 641 631
BIA No. A97 641 632
BIA No. A97 641 633
BIA No. A97 641 634
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Eddi Romeo Lemus Ferro (Lemus), a native and citizen of Guatemala, has
filed a petition for review of the Board of Immigration Appeals’ (BIA) order
*
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should not be published and is not precedent except under the limited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.
No. 06-60664
denying his application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). Lemus argues that his application should
be granted because he experienced past persecution, has a well-founded fear of
future persecution, and established the requisite nexus between the harm
suffered and his political opinion. He also contends that the Immigration Judge
(IJ) denied him due process by relying on an inadequate hearing transcript.
The BIA’s factual findings are reviewed for substantial evidence. Ozdemir
v. INS, 46 F.3d 6, 7 (5th Cir. 1994). Under the substantial evidence standard,
this court will affirm the BIA’s decision unless the evidence compels a contrary
conclusion. Id. at 8. “The applicant has the burden of showing that the evidence
is so compelling that no reasonable factfinder could reach a contrary conclusion.”
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). The record does not
compel a conclusion contrary to the BIA’s finding that Lemus did not
demonstrate past persecution on account of any of the five enumerated grounds
for asylum relief set forth under 8 U.S.C. § 1101(a)(42)(A). See Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 349
(5th Cir. 2002). The record also does not compel a conclusion contrary to the
determination that Lemus lacked a well-founded fear of persecution on account
of an enumerated ground. See Ontunez-Tursios, 303 F.3d at 349.
Lemus cannot meet the more demanding standard for withholding of
removal given that he cannot satisfy the standard for asylum. See Faddoul v.
INS, 37 F.3d 185, 188 (5th Cir. 1994). As to relief under the CAT, Lemus failed
to raise the CAT claim in his brief to the BIA. Lemus’s failure to exhaust the
CAT claim is a jurisdictional bar to this court’s consideration of the issue. See
Wang v. Ahscroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
Finally, the IJ did not deny Lemus his due process rights by relying on the
hearing transcript. The transcript as a whole adequately and unambiguously
conveyed the essence of Lemus’s testimony. Therefore, Lemus failed to establish
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No. 06-60664
that reliance on the transcript caused substantial prejudice. See Anwar v. INS,
116 140, 144 (5th Cir. 1997).
The petition for review is DENIED IN PART and DISMISSED IN PART.
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