Ayala-Soriano v. Garland ( 2023 )

Case: 22-60530 Document: 00516724646 Page: 1 Date Filed: 04/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 25, 2023
No. 22-60530 Lyle W. Cayce
Summary Calendar Clerk
____________
Yessenia Beatriz Ayala-Soriano,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 218 708
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Yessenia Beatriz Ayala-Soriano, a native and citizen of El Salvador,
petitions for review of a 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should not be published and is not precedent except under the limited circumstances set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.
Case: 22-60530 Document: 00516724646 Page: 2 Date Filed: 04/25/2023
No. 22-60530
upholding the denial of her application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT).
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. See Orellana-Monson v.
Holder, 685 F.3d 511, 517 (5th Cir. 2012). The BIA’s factual determination
that an individual is not eligible for asylum, withholding of removal, or CAT
relief is reviewed under the substantial evidence standard. Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006).
Ayala-Soriano sought asylum and withholding of removal based on her
political opinion and membership in a particular social group (PSG). She
proposed two PSGs: (1) Pentecostal Salvadoran women who oppose or resist
the authority of the MS-13 and (2) Salvadoran women who report gang-
related crimes to law enforcement. Substantial evidence supports the BIA’s
determination that neither is cognizable due to the lack of social distinction.
The record does not compel the conclusion that the members of the proposed
PSGs are perceived substantially differently from the general Salvadoran
population who resist the MS-13 gang or otherwise threaten the gang’s
interests. See Suate-Orellana v. Barr, 979 F.3d 1056, 1061 (5th Cir. 2020);
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016); Orellana-
Monson, 685 F.3d at 522.
Additionally, Ayala-Soriano has waived the claims relating to her
political opinion because her opening brief did not contain any argument
contesting the issue of political opinion. See Bouchikhi v. Holder, 676 F.3d
173, 179 (5th Cir. 2012). On the other hand, she argues, for the first time
here, that she demonstrated persecution on account of her religious views.
The record reflects that she did not make a claim of asylum or withholding of
removal based on religion. She also did not raise religion as one of her
protected grounds in the BIA, and the BIA did not address any such claim.
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No. 22-60530
Thus, her argument is unexhausted, and we lack jurisdiction to consider it.
See 8 U.S.C. § 1252(d)(1); Hernandez-De La Cruz, 819 F.3d at 786.
Because Ayala-Soriano has not succeeded regarding her alleged
protected grounds, we do not reach her argument that withholding of
removal has a less demanding nexus standard than asylum. Her failure to
establish eligibility for asylum, as discussed above, necessarily means that she
also cannot meet the requirements for withholding of removal. See Orellana-
Monson, 685 F.3d at 518.
To obtain protection under the CAT, the applicant must demonstrate
that, in the proposed country of removal, it is more likely than not that she
would be tortured by, or with the acquiescence of, a public official or other
person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1); see Martinez
Manzanares v. Barr, 925 F.3d 222, 228 (5th Cir. 2019). “Acquiescence by
the government includes willful blindness of torturous activity.” Gonzales-
Veliz v. Barr, 938 F.3d 219, 225 (5th Cir. 2019) (internal quotation marks and
citation omitted). As the BIA determined, the fact that the police lacked the
means to protect Ayala-Soriano from the MS-13 gang did not amount to
acquiescence. See Gonzales-Veliz, 938 F.3d at 225; Martinez Manzanares,
925 F.3d at 229. She has not shown that the evidence compels the conclusion
that any potential torture would entail the requisite state action or
acquiescence. See Gonzales-Veliz, 938 F.3d at 225; Martinez Manzanares,
925 F.3d at 229.
The petition for review is DISMISSED in part for lack of
jurisdiction and DENIED in all other respects.
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