Amaya-Hernandez v. Garland ( 2023 )

Case: 22-60439 Document: 00516756630 Page: 1 Date Filed: 05/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 19, 2023
No. 22-60439
Lyle W. Cayce
Summary Calendar Clerk
____________
Alba Aracely Amaya-Hernandez; Jefferson Josael Luna-
Amaya,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. A208 752 921,
A208 752 922
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Alba Aracely Amaya-Hernandez and her minor son, both natives and
citizens of El Salvador, petition for review of a decision of the Board of
Immigration Appeals (BIA) dismissing her appeal from the denial by the
immigration judge of her application for asylum, withholding of removal, and
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60439 Document: 00516756630 Page: 2 Date Filed: 05/19/2023
No. 22-60439
relief under the Convention against Torture (CAT).1 We review denials of
asylum, withholding, and CAT claims for substantial evidence. Chen
v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Under this standard, we may
not disturb the BIA’s decision unless the evidence “compels” a contrary
conclusion. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). We
consider the IJ’s decision only insofar as it influences the BIA. Id.Amaya-Hernandez points to no record evidence undermining the
agency’s conclusion that her assailants’ motive was to obtain information
regarding murder of a state prosecutor and they thus targeted Amaya-
Hernandez only as a means to that end, unrelated to her family membership.
The evidence thus does not compel a conclusion contrary to the agency’s
determination that her nuclear family membership was not “one central
reason” for the incident. § 1158(b)(1)(B)(i); see Vazquez-Guerra v. Garland,
7 F.4th 265, 271 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022); Orellana-
Monson, 685 F.3d at 518. A nexus between the harm and a protected ground
is an essential element of asylum and withholding claims. See Vazquez-
Guerra, 7 F.4th at 269. We therefore do not consider Amaya-Hernandez’s
contentions that the attack on her constituted persecution, that her assailants
were police officers, that her particular social group is cognizable, and that
she faces future persecution. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
We likewise do not consider Amaya-Hernandez’s assertion that, as to
withholding, the BIA erred by failing to shift the burden to the Government
to show “a fundamental change in circumstances in El Salvador or that
relocation would be reasonable.” See Bagamasbad, 429 U.S. at 25. Because
Amaya-Hernandez failed to establish eligibility for asylum, she necessarily
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1
Because Amaya-Hernandez’s minor son is a rider on and derivative beneficiary of
his mother’s application for relief, we refer herein only to Amaya-Hernandez.
2
Case: 22-60439 Document: 00516756630 Page: 3 Date Filed: 05/19/2023
No. 22-60439
also cannot meet the requirements for withholding of removal. See Jaco v.
Garland, 24 F.4th 395, 401 (5th Cir. 2021); Orellana-Monson, 685 F.3d at 518.
As to CAT relief, Amaya-Hernandez’s conclusory and unsupported
assertions fail to compel a conclusion contrary to that of the BIA on the
question whether she more likely than not will be tortured with governmental
acquiescence if repatriated. See Martinez Manzanares v. Barr, 925 F.3d 222,
228 (5th Cir. 2019). Because Amaya-Hernandez failed to show the requisite
state acquiescence or involvement, the BIA did not need to address the
likelihood of harm rising to the level of torture. See Bagamasbad, 429 U.S. at
25.
The petition for review is DENIED.
3