Paz Palma v. Garland ( 2023 )

Case: 22-60341 Document: 00516716643 Page: 1 Date Filed: 04/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 18, 2023
No. 22-60341 Lyle W. Cayce
Summary Calendar Clerk
____________
Wilson Filander Paz Palma,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 157 682
______________________________
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Wilson Filander Paz Palma, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
his appeal from an order of the Immigration Judge (IJ) denying his application
for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). He contends: the BIA incorrectly concluded he
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60341
waived any challenge to the IJ’s denying asylum based on the firm
resettlement rule; he established his eligibility for relief for asylum and
withholding of removal; and his request for a continuance during proceedings
before the IJ should have been granted. (He has abandoned any claims
regarding CAT protection by failing to brief them. E.g., Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003) (stating issues not briefed are abandoned).)
We review the BIA’s decision and consider the IJ’s decision only to
the extent it influenced that of the BIA. E.g., Shaikh v. Holder, 588 F.3d 861,
863 (5th Cir. 2009). Legal conclusions are reviewed de novo; factual findings,
for substantial evidence. Id. The substantial-evidence standard applies to
factual determinations that an alien is ineligible for asylum, withholding of
removal, and CAT protection. E.g., Zhang v. Gonzales, 432 F.3d 339, 344 (5th
Cir. 2005).
Regarding asylum, the BIA ruled: Palma failed to meaningfully
contest the IJ’s determination he was ineligible for asylum based on the firm
resettlement rule, see 8 U.S.C. § 1158(b)(2)(A)(vi) (alien ineligible for asylum
if “firmly resettled in another country prior to arriving in the United
States”); and, therefore, he waived the issue. It alternatively denied asylum
on the merits. We note our circuit’s precedent regarding the exhaustion
requirement in immigration proceedings may be affected by the Supreme
Court’s forthcoming decision in Santos-Zacaria v. Garland, 22 F.4th 570 (5th
Cir.), cert. granted, 143 S. Ct. 82 (2022). Because, as discussed infra, Palma’s
asylum claim fails on the merits, we assume, without deciding, he exhausted
this issue.
In alternatively denying asylum, and denying withholding of removal,
the BIA determined Palma failed to demonstrate the requisite nexus between
his alleged harm and the two protected grounds he claimed: his religion and
membership in a particular social group consisting of “small businessmen in
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Honduras victimized by gang violence and extortion”. He had the burden of
showing he suffered past-persecution or had “a well-founded fear of
persecution on account of” a protected ground. Milat v. Holder, 755 F.3d
354, 360 (5th Cir. 2014) (citation omitted). In this context, “on account of”
means the protected ground “was or will be at least one central reason” for
the persecution. Id. (citation omitted).
His testimony indicated that the MS-13 gang did not threaten or beat
him during the nearly two-year period while he paid the monthly fee they
demanded. The gang took those actions only after he stopped paying the fee
following an increase and refused their alternative demand to disassemble
stolen cars for them. He also testified that the gang extorted money from
almost everyone, not just businessmen and churches.
Based on that testimony, substantial evidence supports a finding that
the gang was primarily motivated by monetary extortion or assistance with
their criminal activity, and that Palma’s religion and status as a small
businessman at most were incidental or secondary reasons for the harm he
experienced. While he contends he refused to disassemble the stolen cars
because of his religious concerns, it is the motivation of the “persecutor, not
the persecuted” that is the proper focus of this analysis. Vazquez-Guerra v.
Garland, 7 F.4th 265, 269 (5th Cir. 2021) (emphasis in original).
Palma also did not demonstrate the requisite nexus as to a different
incident he experienced involving the police, as he testified that the police
were motivated by money and not his religion or the fact he owned a small
business. Further, his reliance on expert reports about gang conduct in
Honduras does not compel the determination that a protected ground was a
central reason for the harm he experienced or might face in Honduras in the
future. See Shaikh, 588 F.3d at 864 (nexus requirement fails where protected
ground is “incidental, tangential, superficial, or subordinate to another
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reason for harm” (citation omitted)); Wang v. Holder, 569 F.3d 531, 536–37
(5th Cir. 2009) (reversing under substantial-evidence standard requires
evidence “so compelling that no reasonable factfinder could conclude against
it”).
The denial of his motion for a continuance is reviewed for abuse of
discretion. E.g., Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). The
BIA’s decision is not an abuse of discretion “so long as it is not capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
aberrational that it is arbitrary rather than the result of any perceptible
rational approach”. Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir.
2007) (citation omitted).
In upholding the IJ’s finding of lack of good cause, the BIA noted
counsel’s involvement and familiarity with the case prior to his entry of
appearance. Palma fails to show an abuse of discretion in reaching that
determination. See Pan v. Garland, No. 19-60606, 2022 WL 4007282, at *5
(5th Cir. 2 Sept. 2022) (unpublished) (holding no abuse of discretion where
“a perceptible rational approach” supported denial of continuance (citation
omitted)). Moreover, he has not shown that the BIA erred in alternatively
concluding he failed to demonstrate prejudice from the denial of the
continuance, as he does not identify any specific evidence he could have
obtained if his case had been continued. See Matter of Sibrun, 18 I. & N. Dec.
354, 356–57 (BIA 1983) (petitioner must show actual prejudice from denial of
continuance).
Finally, to the extent he claims the denial of a continuance violated his
right to due process, that contention is unavailing. See Santos-Alvarado v.
Barr, 967 F.3d 428, 439 (5th Cir. 2020) (initial showing of substantial
prejudice required to prevail on due-process claim); Ali v. Gonzales, 440 F.3d
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678, 681 (5th Cir. 2006) (denial of continuance does not violate due process
where good cause not shown).
DENIED.
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