Palencia-Ascencio De Ortiz v. Garland ( 2023 )

Case: 22-60248 Document: 00516685911 Page: 1 Date Filed: 03/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
March 22, 2023
No. 22-60248
Summary Calendar Lyle W. Cayce
____________ Clerk
Maria Aura Palencia-Ascencio De Ortiz; Hugo Jeferson
Ortiz-Palencia; Marlen Karina Ortiz-Palencia,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A213 119 743
Agency No. A213 119 744
Agency No. A213 119 745
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Maria Aura Palencia-Ascencio De Ortiz and two of her minor
children, Hugo Jeferson Ortiz-Palencia and Marlen Karina Ortiz-Palencia, all
natives and citizens of Guatemala, petition for review of the dismissal by the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60248
Board of Immigration Appeals (BIA) of their appeal from the denial by the
immigration judge (IJ) of their applications for asylum, withholding of
removal (WOR), and protection under the Convention Against Torture
(CAT).
The petitioners challenge the agency’s denial of asylum and WOR
based on its finding that there was not a nexus between the petitioners’
suffered and feared persecution and their family-based proposed particular
social groups. We lack jurisdiction to consider the unexhausted contention
that the BIA erred by reviewing the IJ’s lack-of-nexus finding under the clear
error standard of review. See Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir.
2020). Because this assertion raises a completely new ground for relief
arising solely as a consequence of the BIA’s alleged error, the petitioners
were required to, but did not, exhaust the issue in a motion to reconsider filed
with the BIA. See Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir.
2022).
There is no merit to the petitioners’ substantive challenge to the
agency’s determination that the required nexus was absent because the gang
targeted them with criminal intent and their family relationship to an extorted
person was not a central reason for the persecution. See Vazquez-Guerra v.
Garland, 7 F.4th 265, 270 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022)(stating that “[t]hreats or attacks motivated by criminal intentions do not
provide a basis for protection”); Gonzales-Veliz v. Barr, 938 F.3d 219, 224
(5th Cir. 2019) (explaining that, under the nexus requirement for asylum and
WOR, the statutorily protected ground must be a central reason for the
persecution and cannot be incidental or subordinate to another reason for
harm); see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015)
(finding that persecution was not on account of family membership where
there was no reason to suppose that the demand for information about the
applicant’s brother was based on “hatred for [the] family”). The petitioners
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have not established that the evidence compels a contrary conclusion. See
Gonzales-Veliz, 938 F.3d at 224-25.
Additionally, the petitioners challenge the agency’s denial of CAT
protection on the grounds that the BIA failed to adequately explain its
decision, including its standard of review, and failed to consider relevant
testimony regarding the Guatemalan police response, which purportedly
showed government acquiescence to torture. Here again, the petitioners are
asserting new arguments arising solely from the BIA’s alleged errors that
were not exhausted in a motion to reconsider, and we lack jurisdiction to
consider them. See Martinez-Guevara, 27 F.4th at 360; Avelar-Oliva, 954
F.3d at 766.
To the extent that the petitioners are raising a substantive challenge
to the agency’s determination that they failed to show that the Guatemalan
government would acquiescence to their torture, the claim lacks merit. See
Zhang v. Gonzales, 432 F.3d 339, 345 (5th Cir. 2005) (internal quotation
marks and citation omitted) (stating that a CAT applicant must show a
likelihood of torture in the country of removal “by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity”). The petitioners rely on Palencia-Ascencio De Ortiz’s
testimony that, in response to her complaint about her son being threatened
at school, the Guatemalan police told her they could not get involved because
threats happen daily and that, in response to her complaint about threatening
telephone calls, the police sent a patrol car to drive by her home only once.
However, as the BIA explained, a government’s inability to curtail gang
violence or eradicate crime, especially when due to a lack of resources, does
not satisfy the acquiescence requirement. See Tabora Gutierrez v. Garland,
12 F.4th 496, 504-05 (5th Cir. 2021). The petitioners have not shown that
the record compels a contrary conclusion with respect to their CAT claim.
See Gonzales-Veliz, 938 F.3d at 224; Zhang, 432 F.3d at 344.
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The petition for review is DISMISSED in part for lack of
jurisdiction and DENIED in part.
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