Paz-Fernandez v. Garland ( 2021 )

Case: 19-60915 Document: 00515813656 Page: 1 Date Filed: 04/08/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2021
No. 19-60915 Lyle W. Cayce
Summary Calendar Clerk
Carmen Xiomara Paz-Fernandez; Jose Ramon Martinez-
Paz,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A202 131 897
BIA No. A202 131 898
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Carmen Xiomara Paz-Fernandez and her derivative beneficiary, Jose
Ramon Martinez-Paz, are natives and citizens of Honduras. They petition
for review of the decision of the Board of Immigration Appeals (BIA)
*
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opinion should not be published and is not precedent except under the limited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. 19-60915
dismissing their appeal of an Immigration Judge’s (IJ) denial of their
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Paz-Fernandez argues the BIA
erroneously determined that the harm she suffered did not rise to the level of
past persecution, that she did not establish a well-founded fear of future
persecution, and that she did not demonstrate that the Honduran
government was unable or unwilling to control her persecutor. She further
contends the BIA incorrectly concluded that she had not been tortured and
ignored evidence showing that local police officers acquiesced to her
persecutor’s violent acts.
This court reviews the BIA’s decision and the IJ’s ruling, to the extent
it affects the BIA’s decision. Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009). We review factual findings for substantial evidence and legal
questions de novo. Iruegas-Valdez v. Yates, 846 F.3d 806, 810 (5th Cir. 2017).
Under substantial evidence review, reversal is improper unless this court
decides “not only that the evidence supports a contrary conclusion, but also
that the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006) (internal quotation marks and citation omitted).
The evidence does not compel a conclusion that the police either
condone the violent actions of Paz-Fernandez’s persecutor or are completely
helpless to protect her, particularly considering that she has not sought help
from local authorities and merely speculates that they would not protect her
because some police officers appear to be friendly with her persecutor. See
Gonzales-Veliz v. Barr, 938 F.3d 219, 231 (5th Cir. 2019). Paz-Fernandez
argues that the BIA and IJ erred by requiring her to show conclusive evidence
that it would have been futile to report her persecutor to the police, but we
do not have jurisdiction to consider this argument because she did not
exhaust it before the BIA. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir.
2009). Paz-Fernandez’s failure to establish that the government is unable or
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No. 19-60915
unwilling to control her persecutor is, on its own, dispositive of her claims
regarding both past persecution and her well-founded fear of future
persecution. See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006).
Further, because she fails to meet the less stringent standard for asylum, Paz-
Fernandez is necessarily unable to establish eligibility for withholding of
removal. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012).
The evidence also does not compel a conclusion that Paz-Fernandez
is eligible for CAT relief, as she has not established that the government
would consent to her torture. See Tamara-Gomez v. Gonzales, 447 F.3d 343,
350-51 (5th Cir. 2006); Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014).
In particular, she has not established that the police would acquiesce in her
torture, and the record reflects that the Honduran government is making
progress in reducing societal violence. Further, there is no merit to Paz-
Fernandez’s argument that the BIA erroneously focused on the national
government’s efforts to curb violence and failed to address her assertion that
local police officers allow her persecutor to commit violent acts with
impunity. The record makes clear that the BIA considered, but was
ultimately unpersuaded by, her allegation that the local police would allow
her to be tortured.
The petition for review is DENIED.
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