Gonzalez-Gutierrez v. Garland ( 2021 )

Case: 20-60413 Document: 00516096097 Page: 1 Date Filed: 11/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 16, 2021
No. 20-60413
Lyle W. Cayce
Summary Calendar
Clerk
Jessica Roxana Gonzalez-Gutierrez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
Agency No. A208-762-891
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Jessica Roxana Gonzalez-Gutierrez is a native and citizen of El
Salvador. She petitions us to review the Board of Immigration Appeals’
(BIA) decision that dismissed her appeal from the Immigration Judge’s (IJ)
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-60413
denial of her application for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT).
Gonzalez-Gutierrez alleges errors by both the IJ and the BIA.
As for the IJ, Gonzalez-Gutierrez argues that (1) the IJ misinterpreted
the concept of government acquiescence in denying her CAT claim, and (2)
her due-process rights were violated when parts of her removal-hearing-
testimony transcript were marked as “indiscernible.” Gonzalez-Gutierrez
has not exhausted these claims, though, because she did not raise them before
the BIA. See Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018); Omari v.
Holder, 562 F.3d 314, 318–19 (5th Cir. 2009); Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004) (per curiam). Likewise, Gonzalez-Gutierrez has not
exhausted her claim that the BIA erred in deeming her CAT claim
abandoned. She neither substantively appealed it in her brief to the BIA nor
moved the BIA to either reopen or reconsider its determination. See
Vazquez, 885 F.3d at 868; Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010).
We therefore lack jurisdiction to review these claims. See Vazquez, 885 F.3d
at 868; Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
As for the BIA, Gonzalez-Gutierrez contends the BIA erred in (1)
affirming the IJ’s decision that her proposed particular social group
(PSG)—“Salvadoran women who fear gender based violence and
delinquency in their home country”—was not cognizable, (2) holding that
she failed to establish past persecution and a well-founded fear of future
persecution on account of her PSG, and (3) affirming the IJ’s denial of
withholding of removal. We review factual findings under the substantial-
evidence standard and legal questions de novo. Orellana-Monson v. Holder,
685 F.3d 511, 517–18 (5th Cir. 2012). Under the substantial-evidence
standard, we may not reverse the BIA’s factual findings unless “the
evidence was so compelling that no reasonable factfinder could conclude
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No. 20-60413
against it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). Those factual
findings include the conclusion that an alien is not eligible for asylum or
withholding of removal. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
Applying this standard, we disagree with Gonzalez-Gutierrez that the
BIA erred in reviewing her case. Her proposed PSG lacks particularity. It
could potentially include every woman in El Salvador, without any
limitations or distinguishing factors. See Orellana-Monson, 685 F.3d at 519.
Accordingly, Gonzalez-Gutierrez has failed to show that her proposed PSG
is more than a “catch all” for persons fearing persecution. Id. at 518–19.
Additionally, the BIA properly affirmed the IJ’s decision that Gonzalez-
Gutierrez was not persecuted. Cf. Tesfamichael v. Gonzales, 469 F.3d 109, 116
(5th Cir. 2006) (requiring “extreme conduct” beyond isolated incidents of
“discrimination”, “harassment”, or “threats”); Eduard v. Ashcroft, 379
F.3d 182, 188 (5th Cir. 2004) (same). Substantial evidence similarly supports
that Gonzalez-Gutierrez was victimized for personal or general-criminal
reasons, and not because of a protected ground. See Thuri v. Ashcroft, 380
F.3d 788, 790–93 (5th Cir. 2004) (per curiam). Substantial evidence further
supports that Gonzalez-Gutierrez failed to show a well-founded fear of future
persecution on account of a protected ground. See 8 C.F.R.
§ 1208.13(b)(2)(i); Cantarero-Lagos v. Barr, 924 F.3d 145, 150 (5th Cir. 2019).
Because substantial evidence supports the BIA’s determination that
Gonzalez-Gutierrez failed to show that she was eligible for asylum, she
necessarily has also failed to show that she is eligible for withholding of
removal. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002) (quorum).
Accordingly, the petition for review is DISMISSED IN PART and
DENIED IN PART.
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