Mendoza Martinez v. Garland ( 2023 )

Case: 22-60176 Document: 00516870471 Page: 1 Date Filed: 08/24/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60176
Summary Calendar FILED
____________ August 24, 2023
Lyle W. Cayce
Jorge Luis Mendoza Martinez, 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 650 500
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Jorge Luis Mendoza Martinez, a native and citizen of Mexico,
petitions for review of the decision by the Board of Immigration Appeals
(BIA) adopting and affirming an order of an immigration judge denying 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.
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No. 22-60176
As a preliminary matter, the IJ held, and the BIA affirmed, that
Mendoza Martinez was barred from proceeding with his asylum claim
because the application was untimely and he failed to demonstrate changed
or extraordinary circumstances excusing the untimely filing. Although
Mendoza Martinez now argues that the increase in violence by gangs and
cartels since he left Mexico constitutes changed circumstances excusing the
untimely filing of his asylum application, we lack jurisdiction to review
determinations of timeliness that are based on findings of fact. See Zhu v.
Gonzales, 493 F.3d 588, 594-95 (5th Cir. 2007).
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d
220, 224 (5th Cir. 2018). Factual findings are reviewed for substantial
evidence, and legal determinations are reviewed de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Under the substantial evidence
standard, we may not overturn a factual finding unless the evidence compels
a contrary result. 8 U.S.C. § 1252(b)(4)(B); Martinez-Lopez v. Barr, 943 F.3d
766, 769 (5th Cir. 2019).
On appeal, Mendoza Martinez contends that he was subjected to past
persecution, he has a well-founded fear of future persecution, he is entitled
to protection under the CAT, and his circumstances warrant a grant of
humanitarian asylum.
First, Mendoza Martinez argues that he suffered persecution because
he was threatened on two occasions with harm and death by cartel members
when he opposed their attempted recruitment. In both instances, Mendoza
Martinez was able to walk away without being harmed. As we have explained,
such exaggerated, non-specific threats, which were also lacking in
immediacy, are not enough to demonstrate past persecution. Qorane v. Barr,
919 F.3d 904, 910 (5th Cir. 2019) (citing Corado v. Ashcroft, 384 F.3d 945, 947
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No. 22-60176
(8th Cir. 2004) (per curiam) (explaining that not all alleged death threats
necessarily amount to persecution, such as “where a factfinder concludes
that threats are exaggerated, non-specific, or lacking in immediacy”)).
Accordingly, the evidence does not compel a finding of past persecution. See
Martinez-Lopez, 943 F.3d at 771.
Next, to demonstrate a well-founded fear of future persecution, an
applicant must have a subjective fear of persecution, the fear must be
objectively reasonable, and the subjective fear must have a nexus to a
protected ground. Cabrera v. Sessions, 890 F.3d 153, 159-60 (5th Cir. 2018).
Here, Mendoza Martinez argues that he demonstrated a clear probability of
future prosecution based on his country condition evidence and testimony
that he would be killed if he refused recruitment by a cartel. But this evidence
reflects a fear of general criminal activity, and “an applicant’s fear of
persecution cannot be based solely on general violence and civil disorder.” See
Eduard v. Ashcroft, 379 F.3d 182, 190 (5th Cir. 2004). Moreover, nothing in
the record indicates that Mendoza Martinez would be targeted on his claimed
protected ground, his relationship with his father. Thus, the evidence does
not compel a finding that Mendoza Martinez has a well-founded fear of future
persecution on account of a protected basis.
To establish entitlement to relief under the CAT, an alien must prove
that it is more likely than not that he will be tortured with the consent or
acquiescence of public officials if he returns to the particular country in
question. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The record does not
compel a finding that Mendoza Martinez made such a showing. See Morales
v. Sessions, 860 F.3d 812, 818 (5th Cir. 2017).
Finally, Mendoza Martinez argues that he warrants a grant of
humanitarian asylum. As the Government notes, however, Mendoza
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No. 22-60176
Martinez failed to exhaust this challenge to the BIA. We agree that the issue
is unexhausted and therefore decline to reach it. See 8 U.S.C. § 1252(d)(1). 1
Based upon the foregoing, the petition for review is DISMISSED
IN PART and DENIED IN PART.
_____________________
1
“Neither the Supreme Court nor our court has decided whether § 1252(d)(1) is a
mandatory claim-processing rule.” Carreon v. Garland, 71 F.4th 247, 257 n.11 (5th Cir.
2023); see also Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019) (“A claim-processing
rule may be mandatory in the sense that a court must enforce the rule if a party properly
raise[s] it.” (alteration in original) (citations and quotations omitted)). However, we need
not address this question as we would enforce the exhaustion requirement regardless of
whether § 1252 is a mandatory claims processing rule. See Carreon, 71 F.4th at 257.
4