Penaloza-Megana v. Garland ( 2022 )

Case: 21-60363 Document: 00516374146 Page: 1 Date Filed: 06/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 28, 2022
No. 21-60363
Lyle W. Cayce
Summary Calendar Clerk
Maria Jeannette Penaloza-Megana,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A087 770 503
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Maria Jeannette Penaloza-Megana, a native and citizen of Mexico,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
dismissing her appeal from an order of the immigration judge (IJ) denying
withholding of removal and relief under the Convention Against Torture
*
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opinion should not be published and is not precedent except under the limited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: 21-60363 Document: 00516374146 Page: 2 Date Filed: 06/28/2022
No. 21-60363
(CAT). We review the BIA’s decision and will consider the IJ’s underlying
decision only insofar as it influenced the BIA’s decision. See Singh v. Sessions,
880 F.3d 220, 224 (5th Cir. 2018).
The IJ and the BIA determined that Penaloza-Megana’s proposed
particular social group (PSG), which was based on family membership, was
not cognizable; additionally, the agency determined that Penaloza-Megana
had not established a nexus between her membership in a PSG and the harm
she experienced in the past or her fear of future harm. Penaloza-Megana
argues that a remand is warranted for a proper analysis of her proposed
PSG because, in making their determinations, both the IJ and the BIA relied
on a case that has since been overruled by the Attorney General (AG).
See Matter of L-E-A-, 27 I & N Dec. 581 (A.G. 2019), vacated by Matter of L-
E-A-, 28 I & N Dec. 304 (A.G. 2021).
We need not resolve the cognizability of a PSG before addressing the
dispositive nexus issue. See Vazquez-Guerra v. Garland, 7 F.4th 265, 268-69
(5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022); Martinez Manzanares
v. Barr, 925 F.3d 222, 227 (5th Cir. 2019); see also Revencu v. Sessions, 895
F.3d 396, 402 (5th Cir. 2018), as revised (Aug. 2, 2018). Penaloza-Megana
has abandoned any challenge with respect to the dispositive nexus issue by
failing to brief it. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Therefore, a remand is not required for consideration of the cognizability of
the proposed PSG.
Further, a remand is not warranted due to the BIA’s reliance on the
now-vacated decision in Matter of A-B-, 27 I & N Dec. 316, 340 (A.G. 2018),
vacated by Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021). The BIA cited
that case merely to signal that, given its determination as to the dispositive
nexus issue, it was unnecessary to address other elements of her claim.
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Case: 21-60363 Document: 00516374146 Page: 3 Date Filed: 06/28/2022
No. 21-60363
Penaloza-Megana’s remaining attack on the agency’s denial of her
claim for withholding of removal concerns the agency’s treatment of the
testimony of her expert witness; she contends that the IJ and the BIA erred
by reaching a determination contrary to the expert’s opinion without a proper
analysis. However, the expert’s testimony had no bearing on the dispositive
nexus issue; it was relevant only to the unrelated question whether the
Mexican government would be unable or unwilling to control Penaloza-
Megana’s persecutors. Accordingly, we need not consider the issue. See INS
v. Bagamasbad, 429 U.S. 24, 25 (1976).
Finally, Penaloza-Megana has not briefed and thus has abandoned any
challenge to the denial of her claim for protection under the CAT. See
Soadjede, 324 F.3d at 833.
The petition for review is DENIED.
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