Hector Rodriguez v. Eric Holder, Jr. ( 2010 )

Case: 09-60444 Document: 00511120532 Page: 1 Date Filed: 05/25/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 25, 2010
No. 09-60444
Summary Calendar Lyle W. Cayce
Clerk
HECTOR ROBERTO RODRIGUEZ,
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. A076 833 032
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Hector Roberto Rodriguez, a native of Guatelmala, has filed a petition for
review from the denial by the Board of Immigration Appeals (BIA) of his request
for withholding of removal. He argues that the BIA erred when it determined
that the violence he experienced at the hands of members of a Guatemalan gang
did not warrant relief from removal.
Rodriguez does not challenge the determination by the immigration judge
(IJ) and the BIA that he was not seeking relief under the Convention Against
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60444 Document: 00511120532 Page: 2 Date Filed: 05/25/2010
No. 09-60444
Torture, nor does he challenge the denial of voluntary departure. He has
therefore abandoned any challenge to these rulings. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Also, although he conclusionally
asserts that he seeks asylum, Rodriguez does not address the IJ’s determination
that he is ineligible for asylum because he did not file a timely asylum
application. He has therefore abandoned this issue. See Brinkmann, 813 F.2d
at 748. In any event, as more than a year elapsed between Rodriguez’s arrival
in the United States and the date that he filed his asylum application, and he
does not argue that there are extraordinary circumstances that prevented his
filing, the record supports the determination that he is not entitled to asylum.
See 8 U.S.C. § 1158(a)(2)(B).
The IJ and the BIA determined that regardless of whether the harm that
Rodriguez sustained at the hands of the gang was severe enough to qualify as
persecution, Rodriguez’s claim for withholding of removal failed because he did
not establish that the persecution was motivated by his membership in one of
the five protected categories. An applicant for withholding of removal has the
burden of showing that it is “more likely than not” that his life or freedom would
be threatened by persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8 C.F.R.
§ 208.16(b); 8 U.S.C. § 1231(b)(3); Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir.
2002). Although Rodriguez argues that he is member of a particular social
group, he has failed to establish that he is a “member of a group of persons that
share a common immutable characteristic that they either cannot change or
should not be required to change because it is fundamental to their individual
identities or consciences.” See Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th
Cir. 2006) (internal quotation marks omitted). Accordingly, the petition for
review is DENIED.
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