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Hernandez-Murillo v. Garland ( 2023 )


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  • Case: 22-60487        Document: 00516699502             Page: 1      Date Filed: 04/04/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60487
Summary Calendar                                 FILED
____________                                  April 4, 2023
Lyle W. Cayce
Luis Antonio Hernandez-Murillo,                                                   Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A208 887 044
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Luis Antonio Hernandez-Murillo, a native and citizen of Honduras,
petitions for review of decisions of the Board of Immigration Appeals (BIA)
dismissing his appeal from an order of the Immigration Judge (IJ) ordering
him removed and denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture. We review for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60487     Document: 00516699502           Page: 2   Date Filed: 04/04/2023
No. 22-60487
substantial evidence. Zhang v. Gonzales,
    432 F.3d 339
    , 344 (5th Cir. 2005);
Chen v. Gonzales,
    470 F.3d 1131
    , 1134 (5th Cir. 2006).
Hernandez-Murillo cites neither evidence nor authority compelling a
conclusion contrary to that of the BIA on the issue whether he suffered past
persecution or is likely to face persecution upon repatriation. See Zhang,
    432 F.3d at 344
    ; Zhu v. Gonzales,
    493 F.3d 588
    , 596 (5th Cir. 2007); Cabrera v.
Sessions,
    890 F.3d 153
    , 164 (5th Cir. 2018). Because persecution is an
essential element of claims for asylum or withholding, we need not consider
his remaining arguments concerning these forms of relief. See Jaco v.
Garland,
    24 F.4th 395
    , 402 (5th Cir. 2021); Efe v. Ashcroft,
    293 F.3d 899
    , 906
(5th Cir. 2002); see also INS v. Bagamasbad,
    429 U.S. 24
    , 25 (1976).
Insofar as he argues that the BIA erred by failing to consider his CAT
claim on remand, we lack jurisdiction to consider this claim because it arises
from the agency’s decision but was not first presented to the agency. See
Martinez-Guevara v. Garland,
    27 F.4th 353
    , 359-60 (5th Cir. 2022);
    8 U.S.C. § 1252
    (d)(1). Finally, as with his asylum and withholding claims, he cites
neither evidence nor authority compelling a conclusion contrary to that of the
BIA on the issue whether he more likely than not would be tortured with
governmental acquiescence if repatriated. See Zhang,
    432 F.3d at 344
    ; Tabora
Gutierrez v. Garland,
    12 F.4th 496
    , 502 (5th Cir. 2021). The petition for
review is DENIED in part and DISMISSED in part.
2