Basurto-Lozano v. Garland ( 2023 )

Case: 22-60344 Document: 00516746112 Page: 1 Date Filed: 05/10/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-60344
May 10, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Adalberto Basurto-Lozano,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 999 151
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Adalberto Basurto-Lozano, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
his appeal from the Immigration Judge’s (IJ) denial of asylum, withholding
of removal, and protection under the Convention Against Torture (CAT).
He maintains the BIA erred in: finding he was not credible; ruling he failed
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60344
to satisfy the nexus requirement; basing its denial of withholding on his failed
asylum claim; and finding he failed to establish the relevant requirements for
protection under CAT.
In considering the BIA’s decision (and the IJ’s, to the extent it
influenced the BIA), legal conclusions are reviewed de novo; factual findings,
for substantial evidence. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 517–
18 (5th Cir. 2012). Under the substantial-evidence standard, petitioner must
demonstrate “the evidence is so compelling that no reasonable factfinder
could reach a contrary conclusion”. Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006).
First, Basurto’s challenge regarding the IJ’s adverse credibility
finding is not properly before this court because the BIA did not rule on it;
instead, it assumed he was credible and reached the merits of his claims. E.g.,
Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (“[W]e are not permitted to
consider reasons other than those [the BIA] advanced”. (citation omitted)).
Second, the BIA denied asylum and withholding based on the nexus
element, without reaching the merits of the cognizability of his proposed
particular social group of former police officers. E.g., Vazquez-Guerra v.
Garland, 7 F.4th 265, 269 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022)(explaining nexus element requires protected ground be “at least one central
reason for persecution”, “it cannot be incidental, tangential, superficial, or
subordinate to another reason for harm” (citations omitted)). Because
evidence of extortion and threats by gangs due to his status as a former police
officer is not “so compelling that no reasonable factfinder could reach a
contrary conclusion”, he failed to show that substantial evidence does not
support the BIA’s conclusion the gangs were financially motivated. Chen,
470 F.3d at 1134.
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No. 22-60344
Third, as Basurto acknowledges, his assertion that the nexus standard
is more relaxed for a withholding claim is foreclosed in this circuit. E.g.,
Vazquez-Guerra, 7 F.4th at 271 (“Despite [petitioner]’s argument that
withholding of removal involves a ‘less demanding’ and ‘more relaxed’
standard than asylum for meeting the nexus requirement, this court has held
that applicants for withholding of removal must similarly show that a
protected ground, including membership in a particular social group, was or
will be at least one central reason for persecuting the applicant.” (citation
omitted)). Accordingly, the BIA did not err in rejecting the asylum and
withholding claims.
Finally, Basurto has abandoned his CAT claim because he failed to
brief adequately that any torture he faced, or would face, would be by, or with
the acquiescence, of El Salvadoran officials. E.g., Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003) (noting issues not briefed are abandoned);
Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (establishing protection
under CAT requires alien “demonstrate that, if removed to a country, it is
more likely than not he would be tortured by, or with the acquiescence of,
government officials acting under the color of law”).
DENIED.
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