Cruz Sanchez v. Garland ( 2022 )

Case: 21-60605 Document: 00516370358 Page: 1 Date Filed: 06/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2022
No. 21-60605
Lyle W. Cayce
Summary Calendar Clerk
Carlos Jose Cruz Sanchez; Yarin Alejandra Andino-
Funez; Yeiner Steven Cruz-Andino,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 298 397
Agency No. A209 298 423
Agency No. A209 298 424
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Carlos Jose Cruz Sanchez, Yarin Alejandra Andino-Funez, and Yeiner
Steven Cruz-Andino, natives and citizens of Honduras, petition for review of
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-60605 Document: 00516370358 Page: 2 Date Filed: 06/24/2022
No. 21-60605
the Board of Immigration Appeals’s (“BIA”) decision dismissing their
appeal from an order of the Immigration Judge (“IJ”) denying their
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). 1 We generally review only the BIA’s
decision except to the extent that the IJ’s ruling influences the BIA. See Singh
v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
The petitioners assert that they established past persecution and a
well-founded fear of future persecution because Cruz Sanchez, a former
Honduran police officer, received threatening phone calls and text messages
from a gang who demanded that he assist in moving drugs across the border.
The petitioners assert that the caller threatened to harm Sanchez and his
family, the other petitioners, if he refused assistance. “Neither
discrimination nor harassment ordinarily amounts to persecution” for
purposes of asylum. Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004).
The record does not compel the conclusion that the BIA erred by finding that
the harm that the petitioners experienced did not constitute past persecution.
See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005); Eduard, 379 F.3d at
188; cf. Tamara-Gomez v. Gonzales, 447 F.3d 343, 346 (5th Cir. 2006).
Regarding a well-founded fear of future persecution, the petitioners
do not challenge the BIA’s finding that they failed to demonstrate that they
could avoid persecution by relocating to another part of Honduras or that the
Honduran government was unwilling or unable to protect them from any
harm inflicted by the threatening gang. See Gonzales-Veliz v. Barr, 938 F.3d
219, 228–29 (5th Cir. 2019); Eduard, 379 F.3d at 194. The claims are
1
Andino-Funez sought relief in her own right because she and Cruz Sanchez are
not married. See 8 U.S.C. § 1158(b)(3)(A). However, their son, Cruz-Andino, was
included as a derivative beneficiary on Cruz Sanchez’s asylum application. The cases were
consolidated.
2
Case: 21-60605 Document: 00516370358 Page: 3 Date Filed: 06/24/2022
No. 21-60605
therefore deemed abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th
Cir. 2003). In addition, their claim that they established a well-founded fear
of persecution based on a pattern or practice of persecution of persons
similarly situated to them on account of a protected ground is unexhausted
and therefore dismissed for lack of jurisdiction. See 8 C.F.R. §
208.13(b)(2)(iii); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
Accordingly, the petitioners have not shown that substantial evidence
compels the conclusion that they demonstrated eligibility for asylum or
withholding of removal. See Zhang, 432 F.3d at 344; Efe v. Aschcroft, 293 F.3d
899, 906 (5th Cir. 2002). Because the petitioner’s fail to show substantial
evidence compels a finding of past or future persecution, we need not decide
whether the petitioners demonstrated eligibility for relief based on
membership in a particular social group or anti-gang political opinion. See
INS v. Bagamasbad, 429 U.S. 24, 25–26 (1976).
The BIA deemed the petitioners’ CAT claims waived because they
failed to challenge the IJ’s conclusion they were not entitled to relief.
Because the petitioners do not challenge this finding by the BIA, the claim is
deemed abandoned. See Soadjede, 324 F.3d at 833.
The petition for review is DENIED IN PART and DISMISSED
IN PART for lack of jurisdiction.
3