Betancourth-Cadalzo v. Garland ( 2023 )


Menu:
  • Case: 23-60200        Document: 00516903426             Page: 1      Date Filed: 09/21/2023
    United States Court of Appeals
    for the Fifth Circuit                                       United States Court of Appeals
    ____________                                      Fifth Circuit
    FILED
    No. 23-60200                           September 21, 2023
    Summary Calendar
    Lyle W. Cayce
    ____________                                     Clerk
    Glenda Gissela Betancourth-Cadalzo; Cristhian
    Alejandro Campos-Betancourth; Kimberly Noelia
    Campos-Betancourth,
    Petitioners,
    versus
    Merrick Garland, U.S. Attorney General,
    Respondent.
    ______________________________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    Agency Nos. A209 291 243,
    A209 291 244,
    A209 291 245
    ______________________________
    Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
    Per Curiam: *
    Glenda Gissela Betancourth-Cadalzo, a native and citizen of
    Honduras, applied for asylum, withholding of removal, and protection under
    _____________________
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
    Case: 23-60200      Document: 00516903426           Page: 2   Date Filed: 09/21/2023
    No. 23-60200
    the Convention Against Torture (CAT). An Immigration Judge (IJ) denied
    her application and ordered her removed.          The Board of Immigration
    Appeals (BIA) dismissed her appeal. Betancourth petitions our court for
    review of, inter alia, the denial of the three bases for her application.
    (Betancourth’s minor children are the other petitioners and derivatives on
    her application for relief.)
    The BIA’s determinations that Betancourth was ineligible for asylum,
    withholding, and CAT relief are factual findings our court reviews for
    substantial evidence. E.g., Zhang v. Gonzales, 
    432 F.3d 339
    , 344 (5th Cir.
    2005) (outlining standard of review). Under that standard, reversal is
    improper unless the court decides “not only that the evidence supports a
    contrary conclusion, but that the evidence compels it.” Chun v. INS, 
    40 F.3d 76
    , 78 (5th Cir. 1994) (emphasis in original).
    Regarding     Betancourth’s    asylum     and   withholding-of-removal
    challenges, she asserts membership in the particular social group of “Female
    Honduran Business Owners”.           She contends the BIA erred by not
    recognizing the group as “socially distinct” and therefore not legally
    cognizable. E.g., Jaco v. Garland, 
    24 F.4th 395
    , 403 (5th Cir. 2021) (“[A]n
    applicant must show that the [particular social] group is . . . (3) socially
    distinct within the society in question.”). As proof the group is “socially
    distinct”, Betancourth points to evidence that Honduran gangs and criminals
    focus on business owners. That evidence, however, is insufficient to compel
    a conclusion contrary to the BIA’s. E.g., Hernandez-De La Cruz v. Lynch, 
    819 F.3d 784
    , 786–87 (5th Cir. 2016) (holding proposed social group must be
    recognized as “discrete class of persons” in relevant society (citation
    omitted)).
    The BIA also denied Betancourth’s CAT claim because she had not
    previously been tortured, presented only speculative fear of future harm, and,
    2
    Case: 23-60200      Document: 00516903426           Page: 3     Date Filed: 09/21/2023
    No. 23-60200
    therefore, did not establish she will likely be tortured with official
    acquiescence upon repatriation. E.g., Morales v. Sessions, 
    860 F.3d 812
    , 818
    (5th Cir. 2017) (“Pursuant to [CAT] . . . the United States may not remove
    an alien to a country in which the alien is more likely than not to be
    tortured.”). In her petition, Betancourth presents evidence that Honduran
    officials are corrupt. This evidence, however, is not enough to compel the
    conclusion that she likely faces torture if she returns to Honduras or that such
    torture will involve state action. See 
    id.
     (denying CAT claim supported by
    news stories and reports describing El Salvador as particularly dangerous for
    unnamed women and children).
    In addition, Betancourth requests remand because of an allegedly
    defective notice to appear. Our court “will not remand if doing so would be
    ‘futile’ and there is ‘no realistic possibility’ that the BIA would have reached
    a different conclusion”. Reese v. Garland, 
    66 F.4th 530
    , 536 (5th Cir. 2023)
    (footnote and citation omitted) (refusing remand). Here, remand would be
    futile because Betancourth waived her challenge by failing to object before
    the closing of pleadings before the IJ. Matter of Fernandes, 
    28 I. & N. Dec. 605
    , 608–11 (BIA 2022) (“[I]f a respondent does not raise an objection to a
    defect in the notice to appear in a timely manner, such an objection is waived
    or forfeited. . . . [The notice is] timely if it is raised prior to the closing of
    pleadings before the Immigration Judge.”).
    DENIED.
    3
    

Document Info

Docket Number: 23-60200

Filed Date: 9/21/2023

Precedential Status: Non-Precedential

Modified Date: 9/21/2023