Morado-Bassil v. Ashcroft ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60165
Summary Calendar
MARGUERITTE MORADO-BASSIL; PEDRO MORADO-PINTA;
DONA MORADO-BASSIL,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75-881-698
BIA No. A75-881-697
BIA No. A75-881-699
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Before WIENER, BENAVIDES AND STEWART, Circuit Judges.
PER CURIAM:*
Margueritte Morado-Bassil, Pedro Morado-Pinta, and Dona Morado-Bassil (“the
petitioners”), petition for review of the final order of the Board of Immigration Appeals (“BIA”) that
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
affirmed the denial of their application for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”).
The petitioners argue that the BIA erred when it denied relief under the CAT. They argue
that their asylum denial was based on motive only, and therefore it was error to deny them CAT
relief, which they argue does not require proof of motive. The Morados did not raise this issue before
the BIA, and therefore this court lacks jurisdiction to consider this issue. See 8 U.S.C. § 1252(d)(1);
Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
The petitioners argue that the BIA erred in its discretionary asylum denial because it found
no adverse factors, it determined that Mexican refuge was available despite no evidence of
resettlement, and its cited resettlement case was rendered obsolete by amended regulations. These
arguments also were not presented to the BIA, and this court therefore lacks jurisdiction to consider
this issue. See 8 U.S.C. § 1252(d)(1); Wang, 260 F.3d at 452.
The petitioners also argue that they are properly classified as refugees within the meaning of
8 U.S.C. § 1101(a)(42)(A) and that therefore the BIA erred when it denied asylum. The Attorney
General has the discretion to grant asylum to aliens who are classified as refugees within the meaning
of 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1); Jukic v. INS, 40 F.3d 747, 749 (5th Cir.
1994). A finding that an applicant is a refugee only establishes that the alien may be granted asylum
in the discretion of the Attorney General. INS v. Cardoza-Fonseca, 480 U.S. 421, 427 & n.5 (1987);
see also Mikhael v. INS, 115 F.3d 299, 303 (5th Cir. 1997) (being classified as a refugee does not
automatically confer asylum; rather, the refugee classification allows the Attorney General the
discretion to grant asylum). Thus, to prevail in their appeal the petitioners must show that the BIA
erred when it affirmed 1) the determination that the petitioners were not refugees within the meaning
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of 8 U.S.C. § 1101(a)(42)(A) and 2) the determination that, even if the petitioners were classified as
refugees, they were not entitled to asylum as a matter of discretion. As discussed above, this court
lacks jurisdiction to consider the petitioners’ argument challenging the decision that the petitioners
were not entitled to asylum as a matter of discretion. Therefore, the petitioners’ argument that they
are refugees within the meaning of 8 U.S.C. § 1158(b)(1) is moot.
Finally, the Morados do not address whether the BIA erred when it denied their application
for withholding of removal. The Morados therefore have abandoned this issue. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (this court will not raise and
discuss legal issues that the appellant has failed to assert).
The petition for review is therefore DISMISSED.
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