Hernandez-Vega v. Garland ( 2023 )

Case: 23-60085 Document: 00516860678 Page: 1 Date Filed: 08/16/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-60085
Summary Calendar FILED
____________ August 16, 2023
Lyle W. Cayce
Jhennyfer Sandrely Hernandez-Vega, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 028 048
______________________________
Before Willett, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Jhennyfer Sandrely Hernandez-Vega, a native and citizen of
Honduras, petitions for review of the decision of the Board of Immigration
Appeals (BIA) upholding the denial of 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.
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No. 23-60085
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. See Shaikh v. Holder, 588
F.3d 861, 863 (5th Cir. 2009). 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). Under that standard, the petitioner has the burden
of showing “that the evidence is so compelling that no reasonable factfinder
could reach a contrary conclusion.” Ramirez-Mejia v. Lynch, 794 F.3d 485,
489 (5th Cir. 2015) (internal quotation marks and citation omitted).
Substantial evidence supports the BIA’s determination that
Hernandez-Vega failed to demonstrate the requisite nexus between the harm
she claimed and her membership in the proposed particular social group of
the “Hernandez-Vega family.” The evidence showed that the gang robbed
or otherwise victimized many people besides Hernandez-Vega’s family, and
there was no evidence that the gang expressed any animus particular to her
family. See Ramirez-Mejia, 794 F.3d at 492-93. “Threats or attacks motivated
by criminal intentions do not provide a basis for protection.” Vazquez-Guerra
v. Garland, 7 F.4th 265, 270 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228
(2022). The conclusion is also supported by the evidence that many members
of her family continue to live in Honduras without being specifically targeted
by the gang. See Ramirez-Mejia, 794 F.3d at 493.
Regarding a well-founded fear of persecution, Hernandez-Vega
claimed that she feared returning to Honduras due to the danger of gangs
everywhere and the ineffectiveness or corruption of the police. She has failed
to establish a well-founded fear of persecution, however, because she has not
demonstrated that the gangs are motivated to harm her based on a protected
ground. See Tabora Gutierrez v. Garland, 12 F.4th 496, 500 (5th Cir. 2021).
“[A] fear of general violence and civil disorder is not sufficient to support a
fear of future persecution.” Munoz-Granados, 958 F.3d at 408. Because she
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No. 23-60085
has failed to establish eligibility for asylum, she has also failed to satisfy her
burden for withholding of removal. See id.
Substantial evidence also supports the denial of requested CAT relief.
Hernandez-Vega was not harmed while she remained in Honduras for about
six months after the robbery at her home, and several family members
continued to live in Honduras unharmed. The evidence does not compel the
conclusion that she more likely than not would be tortured if removed to
Honduras. See Ramirez-Mejia, 794 F.3d at 493-94.
Lastly, Hernandez-Vega contends that her case should have been
dismissed because her notice to appear did not include the hearing date and
time. As the BIA determined, however, our precedent forecloses the
argument. See Castillo-Gutierrez v. Garland, 43 F.4th 477, 480 (5th Cir.
2022). Federal regulations “govern what a notice to appear must contain to
constitute a valid charging document.” Maniar v. Garland, 998 F.3d 235, 242
(5th Cir. 2021) (internal quotation marks and citation omitted). Under the
regulations, a notice to appear “is sufficient to commence proceedings even
if it does not include the time, date, or place of the initial hearing.” Id.(internal quotation marks and citation omitted). Furthermore, Hernandez-
Vega filed her motion to terminate the proceedings only after she had already
conceded removability under the notice to appear. The BIA did not err in
concluding that she failed to timely object that the notice to appear violated
a claim-processing rule. See Pierre-Paul v. Barr, 930 F.3d 684, 693 & n.6 (5th
Cir. 2019), abrogated in part on other grounds by Niz-Chavez v. Garland, 141 S.
Ct. 1474 (2021).
The petition for review is DENIED.
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