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Ponce-Medina v. Garland ( 2021 )


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  • Case: 20-60544       Document: 00516135187            Page: 1      Date Filed: 12/17/2021
United States Court of Appeals
for the Fifth Circuit                                  United States Court of Appeals
Fifth Circuit
FILED
No. 20-60544                        December 17, 2021
Summary Calendar                         Lyle W. Cayce
Clerk
Nancy Mariela Ponce-Medina,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 202 075 863
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Nancy Ponce-Medina, a native and citizen of El Salvador, petitions for
review of the dismissal by the Board of Immigration Appeals (“BIA”) of her
appeal of an order by an Immigration Judge (“I.J.”) denying her applications
for asylum, withholding of removal, and protection under the Convention
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-60544        Document: 00516135187              Page: 2       Date Filed: 12/17/2021
No. 20-60544
Against Torture. Ponce-Medina, who is represented by counsel, avers that
she satisfied her burden of establishing her eligibility for asylum and with-
holding of removal because she demonstrated a well-founded fear of future
persecution based on her membership in a particular social group, which she
identified as the family of her late stepfather, Jaime Canjura Flores, who was
murdered in El Salvador years after Ponce-Medina was found in the United
States. 1
We review the decision of the BIA and will consider the I.J.’s decision
only to the extent that it influenced the BIA. See Shaikh v. Holder,
    588 F.3d 861
    , 863 (5th Cir. 2009). We review legal conclusions de novo and factual
findings, such as eligibility for asylum and withholding of removal, for sub-
stantial evidence. Zhang v. Gonzales,
    432 F.3d 339
    , 344 (5th Cir. 2005).
Under the substantial evidence standard, the petitioner “must show that the
evidence was so compelling that no reasonable factfinder could conclude
against it.” Wang v. Holder,
    569 F.3d 531
    , 537 (5th Cir. 2009).
Although Ponce-Medina addresses the BIA’s determination that she
failed to establish a nexus between her fear of future harm and a protected
ground, she fails to address adequately the BIA’s alternative basis for denying
her asylum claim. Specifically, she does not adequately address the deter-
mination that she failed to show either that authorities in El Salvador were
unable or unwilling to protect her from harm or that she could not reasonably
avoid the feared persecution by relocating to another area of El Salvador. In
this regard, her counseled brief is not entitled to liberal construction. See
1
Ponce-Medina also challenges the I.J.’s determination that her asylum application
was untimely, but we do not address that issue because it was not addressed by the BIA and
was not the basis on which the BIA affirmed the I.J.’s decision denying asylum. See
Enriquez-Gutierrez v. Holder,
    612 F.3d 400
    , 407 (5th Cir. 2010). All other challenges she
could have raised in this petition are waived. See Thuri v. Ashcroft,
    380 F.3d 788
    , 793 (5th
Cir. 2004).
2
Case: 20-60544         Document: 00516135187               Page: 3       Date Filed: 12/17/2021
No. 20-60544
Beasley v. McCotter,
    798 F.2d 116
    , 118 (5th Cir. 1986). Accordingly, she has
not shown that substantial evidence compels the conclusion that, for pur-
poses of asylum, she has a well-founded fear of future persecution. 2 Addi-
tionally, although Ponce-Medina asserts that she is eligible for withholding of
removal, she fails to show a “clear probability” or that “it is more likely than
not” that she would be persecuted on the basis of her membership in a par-
ticular social group if she returns to El Salvador. Chen v. Gonzales,
    470 F.3d 1131
    , 1138 (5th Cir. 2006) (internal quotation marks and citation omitted).
Accordingly, the petition for review is DENIED.
2
See Wang,
    569 F.3d at 537
    ; Lopez-Gomez v. Ashcroft,
    263 F.3d 442
    , 446 (5th Cir.
2001) (“[W]hen a person can relocate within [her] country upon return, the extraordinary
act of granting asylum is not necessary.”);
    8 C.F.R. § 208.13
    (b)(2)(ii), (3)(i); see also Ortiz
v. Garland,
    6 F. 4th 685
    , 691 (5th Cir. 2021) (declining to address the issue of persecution
where petitioner could not independently prove that the authorities weres unwilling or
unable to control violence).
3