Matute-Munguia v. Garland ( 2023 )

Case: 23-60254 Document: 00516959111 Page: 1 Date Filed: 11/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-60254 November 7, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
Rubenia Carolina Matute-Munguia; Jeyson Estiven
Cruz-Matute; Wilson Estevan Cruz-Matute; Ashley
Anahi Cruz-Matute,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. A208 751 681,
A208 751 682, A208 751 683,
A208 751 688
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Rubenia Carolina Matute-Munguia and her three children, Jeyson
Estiven Cruz-Matute, Wilson Estevan Cruz-Matute, and Ashley Anahi
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60254
Cruz-Matute, petition for review of the decision of the Board of Immigration
Appeals (BIA) affirming the denial of asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). They are natives
and citizens of Honduras, and the children were derivatives on Matute-
Munguia’s application for relief.
Because the BIA affirmed without opinion in this case, the underlying
decision of the immigration judge (IJ) is the proper focus of our review here.
See Mwembie v. Gonzales, 443 F.3d 405, 409 (5th Cir. 2006). Legal questions
are generally reviewed de novo. Orellana-Monson v. Holder, 685 F.3d 511, 517
(5th Cir. 2012). 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, “[t]he petitioner has the burden of showing
that the evidence is so compelling that no reasonable factfinder could reach a
contrary conclusion.” Orellana-Monson, 685 F.3d at 518 (internal quotation
marks and citation omitted).
With respect to asylum and withholding of removal, Matute-Munguia
claimed membership in two particular social groups: “persons in professions
susceptible to extortion” and “women and girls with certain profiles or in
specific circumstances, witness to gang violence.” To be cognizable, a PSG
must be (1) comprised of persons who share an immutable characteristic, (2)
particularly defined, and (3) socially distinct within the society at issue.
Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir. 2019). The petitioners
have not shown that the IJ erred in determining that their proposed PSGs
were not cognizable. See Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786-
87 (5th Cir. 2016); Gonzalez-Soto v. Lynch, 841 F.3d 682, 684 (5th Cir. 2016);
Mwembie, 443 F.3d at 414-15. They thus cannot demonstrate eligibility for
asylum or withholding of removal. See Orellana-Monson, 685 F.3d at 522.
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No. 23-60254
Accordingly, we need not address their remaining arguments on those forms
of relief. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
To obtain protection under the CAT, an applicant must demonstrate
that, in the proposed country of removal, it is more likely than not that she
would be tortured by, or with the acquiescence of, a public official or other
person acting in an official capacity. Martinez Manzanares v. Barr, 925 F.3d
222, 228 (5th Cir. 2019). Thus, the applicant must show both that (1) she
more likely than not would suffer torture and (2) sufficient state action would
be involved in that torture. Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51
(5th Cir. 2006). “Acquiescence by the government includes willful blindness
of torturous activity.” Gonzales-Veliz, 938 F.3d at 225 (internal quotation
marks and citation omitted).
Regarding state involvement, the petitioners assert that the local
police failed to apprehend any suspects for the shootings of Matute-
Munguia’s mother and brother. Matute-Munguia’s testimony reflected that
she had only limited and vague information about the shootings and that the
police made a report on the shootings but were unable to apprehend anyone.
“[A] government’s inability to protect its citizens does not amount to
acquiescence.” Martinez Manzanares, 925 F.3d at 229 (internal quotation
marks and citation omitted). Substantial evidence supports the IJ’s finding
that the petitioners failed to show that any torture would involve the requisite
state action. See id.The petition for review is DENIED.
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