Benitez-Manzanares v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2009
No. 08-60946
Summary Calendar Charles R. Fulbruge III
Clerk
MARTHA DELMIS BENITEZ-MANZANARES
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 033 106
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Having conceded removability, Martha Delmis Benitez-Manzanares, a
native and citizen of Honduras, petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) denial of her
applications for asylum and withholding of removal. “We review the decision of
the BIA, and reach the underlying decision of the [IJ] only if that decision has
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60946
some impact upon the BIA’s opinion.” Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
348 (5th Cir. 2002) (citing Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997)).
“We review factual findings of the [BIA] to determine if they are supported by
substantial evidence in the record.” Mikhael, 115 F.3d at 302 (citing INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). Under this standard, the BIA’s
decision will be affirmed unless the “evidence compels a contrary conclusion”.
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996) (citing Ozdemir v.
INS, 46 F.3d 6, 8 (5th Cir. 1994)).
We conclude: the BIA’s decision is supported by substantial evidence in the
record; concomitantly, the evidence does not compel a contrary conclusion. See
id. Among other things, the evidence does not establish that Benitez was
persecuted for being a member of any particular social group. Moreover,
Benitez’ having failed to make the requisite showing for asylum, she likewise
fails to meet the more stringent standard for proving eligibility for withholding
of removal. See Faddoul v. INS, 37 F.3d 185, 190 n.7 (5th Cir. 1994).
Benitez also claims the BIA erred by affirming the IJ’s decision through
the action of a single BIA member. Pursuant to 8 C.F.R. § 1003.1(e), “[u]nless
a case meets the standards for assignment to a three-member panel under
[§ 1003.1(e)(6)], all cases shall be assigned to a single [BIA] member for
disposition”. 8 C.F.R. § 1003.1(e) (emphasis added). Benitez’ case does not meet
the standards for assignment to a three-member panel. See 8 C.F.R.
§ 1003.1(e)(6) (limiting review by a three-member panel to circumstances where,
inter alia, there is a need to “settle inconsistencies among the rulings of different
immigration judges”, “review a decision by an [IJ] . . . that is not in conformity
with the law or with applicable precedents”, or “review a clearly erroneous
factual determination by an [IJ]”). Accordingly, the affirmance of the IJ’s
decision by a single BIA member was permissible. See 8 C.F.R. § 1003.1(e)(5)
(permitting a single BIA member to consider the merits of a case, and to “issue
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No. 08-60946
a brief order affirming . . . the decision under review”); see also, e.g.,
Azhdaroldini v. Gonzales, 220 F. App’x 350, 351 (5th Cir. 2007) (unpublished).
DENIED.
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