Sierra Najera v. Garland ( 2023 )

Case: 22-60558 Document: 00516792913 Page: 1 Date Filed: 06/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
June 20, 2023
No. 22-60558
Summary Calendar Lyle W. Cayce
____________ Clerk
Maricela Michell Sierra Najera; Antony Dariel Sierra
Najera,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. A206 776 451,
A215 948 282
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Maricela Michell Sierra Najera, a native and citizen of Honduras, and
her son, Antony Dariel Sierra Najera, petition for review of the decision by
Board of Immigration Appeals (BIA) dismissing their appeal from the
immigration judge’s (IJ) denial of Maricela’s application for asylum,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60558 Document: 00516792913 Page: 2 Date Filed: 06/20/2023
No. 22-60558
withholding of removal, and protection under the Convention Against
Torture (CAT). Because Antony is Maricela’s derivative beneficiary, only
Maricela will be hereinafter referred to.
We review the BIA’s decision and will consider the IJ’s underlying
decision only if it impacted the BIA’s decision as it did here. See Sharma v.
Holder, 729 F.3d 407, 411 (5th Cir. 2013). Findings of fact, including the
denial of asylum, withholding of removal, and CAT protection, are reviewed
under the substantial evidence standard. Chen v. Gonzales, 470 F.3d 1131,
1134 (5th Cir. 2006). Conclusions of law are reviewed de novo. Sharma, 729
F.3d at 411. Whether we have jurisdiction is also reviewed de novo.
Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021).
Before reaching the merits of Sierra Najera’s petition, the
Government asserts that her arguments regarding the BIA’s legal errors in
dismissing her appeal are unexhausted—thereby depriving the court of
jurisdiction—because she did not first raise them before the BIA in a motion
to reconsider. However, the Supreme Court in Santos-Zacaria v. Garland,
143 S. Ct. 1103, 1119-20 & n.9 (2023), recently held that exhaustion under 8
U.S.C. § 1252(d)(1) does not require an alien to file a motion for
reconsideration where an issue for review arises in the BIA’s decision, i.e.,
alleged BIA error, because it is not a remedy available as of right. See Santos-
Zacaria, 143 S. Ct. at 1119-20 & n.9. Thus, we have jurisdiction to review her
claims.
We reject Sierra Najera’s next argument that the BIA reviewed the
IJ’s decision with the incorrect and more deferential standard of review
because it is premised on her conflation of the gang members’ motives
(criminal, financial) in order to determine persecution with whether the
Honduran government is unable or unwilling to protect her from said
persecution, both of which must be satisfied in order to prevail on her asylum
2
Case: 22-60558 Document: 00516792913 Page: 3 Date Filed: 06/20/2023
No. 22-60558
claim. See Jaco v. Garland, 24 F.4th 395, 401, 406-07 (5th Cir. 2021). Her
argument that the BIA erred by only evaluating the state action element of
her CAT claim instead of evaluating both elements similarly lacks merit. See
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
She then argues that the BIA failed to address country data evidence
regarding gang violence in Honduras or “properly” explain its denial of her
CAT claim. However, while the BIA did not cite the specific evidence to
which Sierra Najera refers, it did acknowledge the problems of crime and
violence in Honduras, and its decision reflects meaningful consideration of
her CAT claim as it dedicated a lengthy paragraph to the issue with
references to the record and case law. See Abdel-Masieh v. U.S. I.N.S., 73
F.3d 579, 585 (5th Cir. 1996) (holding that the BIA is not required to “address
evidentiary minutiae or write any lengthy exegesis” and that “its decision
must reflect meaningful consideration of the relevant substantial evidence
supporting the alien’s claims”).
Her argument that the BIA erred in citing Matter of A-B-, 27 I. & N.
Dec. 316 (U.S. Att’y Gen. 2018) is abandoned because she did not explain
why exactly the case should be remanded for this reason. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Finally, this court has rejected
Sierra Najera’s last argument that the BIA erred in holding that because she
could not satisfy the standard for asylum, she necessarily could not establish
the showing for withholding of removal. See Vazquez-Guerra v. Garland, 7
F.4th 265, 271 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022).
Accordingly, the petition for review is DENIED and the
Government’s motion for summary disposition is DENIED as moot.
3