Alvarez v. Garland ( 2023 )

Case: 22-60323 Document: 00516748928 Page: 1 Date Filed: 05/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60323
Summary Calendar FILED
____________ May 12, 2023
Lyle W. Cayce
Edyn Nahun Alvarez, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A205 870 676
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Edyn Nahun Alvarez, a native and citizen of Honduras, petitions for
review of a decision of the Board of Immigration Appeals (BIA) upholding
the denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60323 Document: 00516748928 Page: 2 Date Filed: 05/12/2023
No. 22-60323
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. See Munoz-Granados v.
Barr, 958 F.3d 402, 406 (5th Cir. 2020). Legal questions are reviewed de
novo. Id. 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).
Alvarez first challenges the determination that his application for
asylum was time barred. Because his argument regarding 8 U.S.C.
§ 1158(a)(2)(B) concerns the disputed factual question of whether he
submitted an asylum application to attorneys in 2014 for filing, we lack
jurisdiction to review the issue. See § 1158(a)(3); Arif v. Mukasey, 509 F.3d
677, 680 (5th Cir. 2007); Zhu v. Gonzales, 493 F.3d 588, 594-96 (5th Cir.
2007).
Regarding withholding of removal, substantial evidence supports the
BIA’s determination that Alvarez’s alleged harm did not rise to the level of
persecution. He alleged that one threat, conveyed in a note to his uncle in
Honduras, was made to his life in 2013 by the killers of his stepbrother. The
note warned Alvarez, who was in the United States, not to return to
Honduras. Even assuming that a threat to Alvarez’s life while he was not in
Honduras could constitute persecution, “threats that are exaggerated, non-
specific, or lacking in immediacy should not suffice.” Munoz-Granados, 958
F.3d at 407 (internal quotation marks and citation omitted). The alleged
threat was too lacking in immediacy to constitute persecution. See id.
Because substantial evidence supports the BIA’s decision on the issue of
persecution, we need not address the BIA’s additional determination that
Alvarez failed to demonstrate a nexus between the alleged harm and a
protected ground. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
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Case: 22-60323 Document: 00516748928 Page: 3 Date Filed: 05/12/2023
No. 22-60323
To obtain protection under the CAT, Alvarez was required to show
that it is more likely than not that he would be tortured in Honduras by, or
with the acquiescence of, a public official or other person acting in an official
capacity. See 8 C.F.R. § 208.18(a)(1); Martinez Manzanares v. Barr, 925 F.3d
222, 228 (5th Cir. 2019). He argues that his documentary evidence showed
that government officials in Honduras were ineffective against crime and
therefore likely would be unable to protect him. The argument is unavailing,
as “a government’s inability to protect its citizens does not amount to
acquiescence.” See Martinez Manzanares, 925 F.3d at 229 (internal
quotation marks and citation omitted). Alvarez has not shown that the
evidence compels a conclusion contrary to the BIA’s determination that he
failed to demonstrate governmental acquiescence for purposes of CAT relief.
The petition for review is DISMISSED in part for lack of
jurisdiction and DENIED in all other respects.
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