Munoz-Morales v. Garland ( 2022 )

Case: 21-60030 Document: 00516382055 Page: 1 Date Filed: 07/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 5, 2022
No. 21-60030 Lyle W. Cayce
Summary Calendar Clerk
Jeny Joselin Munoz-Morales,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 841 349
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Jeny Joselin Munoz-Morales, a native and citizen of Honduras, seeks
review of a decision by the Board of Immigration Appeals (BIA) dismissing
her appeal from the denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). Relying
*
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opinion should not be published and is not precedent except under the limited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.
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No. 21-60030
on Matter of A-C-A-A-, 28 I. & N. Dec. 84, 89 (A.G. 2020), vacated by Matter
of A-C-A-A-, 28 I. & N. Dec. 351 (A.G. 2021), she objects that the BIA
adopted the decision of the immigration judge (IJ) without providing “a
thorough and proper analysis,” and she seeks a remand for the Board to
examine whether the facts found by the IJ established her right to asylum.
Because the BIA has had no chance to consider the challenge to the adequacy
of its reasons, the issue is unexhausted, and we lack jurisdiction to consider
it. See Martinez-Guevara v. Garland, 27 F.4th 353, 359-60 (5th Cir. 2022);
Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009).
With respect to her claims for asylum and withholding of removal,
Munoz-Morales also challenges the finding by the IJ, adopted by the BIA,
that she failed to establish a nexus between her articulated particular social
groups (PSGs) and the alleged persecution. She claimed that she was
targeted by a gang leader because she belonged to the PSGs “teenage
Honduran females,” “young, single Honduran women,” and “Honduran
women targeted for gang recruitment.” There was no evidence, however,
that the gang leader was motivated to harm her by her status as a
teenage/young, single, Honduran woman. Indeed, she acknowledged that he
was motivated by his opinion that she was pretty and his desire for her to be
his girlfriend. Moreover, she conceded she was the “only one” of her
classmates whom he targeted, though presumably others were also
teenage/young, female, single, and Honduran. Evidence that other members
of a PSG have not been harmed weighs against a nexus finding. Vazquez-
Guerra v. Garland, 7 F.4th 265, 270 (5th Cir. 2021), cert. denied, 142 S. Ct.
1228 (2022). Additionally, to the extent the gang leader was motivated by
the desire to recruit Munoz-Morales to join his gang, “[t]hreats or attacks
motivated by criminal intentions do not provide a basis for protection.” Id.
at 270.
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Accordingly, the evidence does not compel a conclusion that the PSGs
were a central reason for the alleged persecution; instead, they were
incidental, tangential, superficial, or subordinate reasons for the gang
leader’s actions. See id. Munoz-Morales thus fails to show that she is eligible
for asylum or withholding of removal. See id. at 270-71; Gonzales-Veliz v.
Barr, 938 F.3d 219, 224 (5th Cir. 2019). Her argument that the nexus
standard for withholding of removal is less demanding than for asylum is
without merit. See Vazquez-Guerra, 7 F.4th at 271. We need not reach the
parties’ other arguments concerning her eligibility for that relief. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976); Cantu-Delgadillo v. Holder, 584 F.3d
682, 690 (5th Cir. 2009).
Finally, Munoz-Morales challenges the IJ’s finding, adopted by the
BIA, that she failed to show harm that rises to the level of torture. See Garcia
v. Holder, 756 F.3d 885, 891 (5th Cir. 2014). We review the finding for
substantial evidence. See Majd v. Gonzales, 446 F.3d 590, 594, 597 (5th Cir.
2006).
Munoz-Morales contends that she satisfied the requirement with her
testimony that the gang leader stalked, harassed, aggressively grabbed, and
threatened her and with documentary evidence showing that gang members
in Honduras routinely inflict “gender-based harm and victimization” and
“extreme physical and sexual violence.” However, detaining someone for a
short time and “roughing [her] up” does not inflict the type of severe pain or
suffering required to constitute torture. Majd, 446 F.3d at 597. Nor does
slapping and harassing someone or a shoving him and causing a hip injury.
Qorane v. Barr, 919 F.3d 904, 909, 911 (5th Cir. 2019). Additionally, country
reports indicating that similarly-situated people “have been subjected to acts
constituting torture” do not compel the required conclusion that the
individual petitioner will more likely than not be tortured. Chen v. Gonzales,
470 F.3d 1131, 1140-41 (5th Cir. 2006). Accordingly, the evidence Munoz-
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Morales relies on does not compel a conclusion that she faces harm rising to
the level of torture. See Majd, 446 F.3d at 597. Because the issue is
dispositive of her CAT claim, we do not consider her challenge to the IJ’s
alternative finding that she failed to show acquiescence by a public official.
See Garcia, 756 F.3d at 891; Bagamasbad, 429 U.S. at 25; Cantu-Delgadillo,
584 F.3d at 690.
The petition is DISMISSED IN PART and DENIED IN PART.
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