Pineda-Barientos v. Ashcroft , 85 F. App'x 994 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60219
Summary Calendar
ESWIN ESTUARDO PINEDA-BARIENTOS,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 791 786
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Eswin Estuardo Pineda-Barientos petitions for review of the
opinion issued by the Board of Immigration Appeals (“BIA”) that
affirmed without opinion the decision of the Immigration Judge
(“IJ”). The IJ denied Pineda-Barientos’ applications for asylum,
withholding of deportation, and protection under the Convention
Against Torture (“CAT”).
Pineda-Barientos contends that he made a prima facie showing
of eligibility for asylum. He asserts that the IJ violated his
*
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that this opinion should not be published and is not precedent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. 03-60219
-2-
right to due process by excluding the testimony of his expert
witness and his father. He argues that the BIA improperly used
the summary affirmance procedure and did not independently state
a correct ground for affirmance or determine that the IJ’s errors
were “harmless or nonmaterial.”
We review the IJ’s decision in this case. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). We review legal conclusions
de novo and findings for substantial evidence. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
Pineda-Barientos did not establish a well-founded fear of
persecution “on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
Adebisi v. INS, 952 F.2d 910, 912 (5th Cir. 1992). His fear of
persecution arose from a personal dispute and did not provide
sufficient grounds for a grant of asylum. See Adebisi, 952 F.2d
at 913. Pineda-Barientos did not make the showing required to
establish eligibility for asylum, and thus, he has not met the
more stringent standard necessary to establish eligibility for
withholding of deportation. See id. Because Pineda-Barientos
did not establish that he would likely be tortured if returned to
Guatemala, he has not shown eligibility for relief under the CAT.
See Bah v. Ashcroft, 341 F.3d 348, 351-52 (5th Cir. 2003).
We review Pineda-Barientos’ due process claims de novo.
Alwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). Pineda-
Barientos has not shown that the exclusion of testimony from his
No. 03-60219
-3-
expert and his father resulted in substantial prejudice. See id.He has not shown why the testimony was necessary, nor has he
explained how exclusion of the testimony caused him harm.
The BIA’s use of the summary affirmance procedure did not
deprive this court of a basis for judicial review and did not
violate due process. Soadjede v. Ashcroft, 324 F.3d 830, 832-33
(5th Cir. 2003). The inclusion of further explanation or
reasoning by a Board Member in a summary affirmance is explicitly
prohibited by regulation. 8 C.F.R. § 1003.1(a)(7)(ii) & (iii)
(2003).
Pineda-Barientos’ petition for review is DENIED.