Rosa Cerna-De Sandoval v. Eric Holder, Jr. ( 2013 )

Case: 13-60159 Document: 00512350927 Page: 1 Date Filed: 08/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2013
No. 13-60159
Lyle W. Cayce
Clerk
ROSA MIRIAN CERNA-DE SANDOVAL; MIRIAN LISSETH
SANDOVAL-CERNA; KAREN NOHEMY SANDOVAL-CERNA; ALAN
ERNESTO SANDOVAL-CERNA,
Petitioners
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
A087 998 684
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Petitioners Rosa Mirian Cerna de Sandoval (“Cerna”) and her three minor
children, natives and citizens of El Salvador, petition for review of the decision
of the Board of Immigration Appeals (“BIA”) dismissing her appeal of the
Immigration Judge’s (“IJ”) order denying her applications for asylum and
withholding of removal. Petitioners submit that they are eligible for asylum and
withholding of removal because Cerna suffered past persecution and has a well-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and
is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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No. 13-60159
founded fear of future persecution based on her membership in a particular
social group: female cadets at the National Police Academy of El Salvador. We
review the BIA’s findings of fact for substantial evidence and its conclusions of
law de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
We conclude that the BIA’s ruling is supported by substantial evidence.
Specifically, substantial evidence supports the agency’s determination that the
mistreatment alleged by Cerna—specifically, name-calling, sexual harassment
and threats by fellow cadets at the police academy—“fall[s] far short of the
required ‘extreme conduct’ needed to establish persecution.” Tesfamichael v.
Gonzales, 469 F.3d 109, 116 (5th Cir. 2006) (“Persecution cannot be based on
‘mere denigration, harassment, and threats.’ ”); Eduard v. Ashcroft, 379 F.3d 182,
188 (5th Cir. 2004) (holding that petitioner who was “struck in the head with a
rock while walking to church” and exposed to “denigration, harassment, and
threats” did not establish past persecution). The agency’s determination that
Cerna’s fear of future persecution stems from a personal dispute with a number
of her police academy peers, and not her membership in a protected social group,
is also supported by substantial evidence. See Thuri v. Ashcroft, 380 F.3d 788,
792–93 (5th Cir. 2004); see also Shehu v. Ashcroft, 118 F. App’x 796, 797 (5th Cir.
2004) ([Petitioner]’s fear of persecution arises out of a personal dispute; [he] did
not establish that the alleged persecution he fears will be perpetrated under
government sanction.”). Because the evidence supporting petitioners’ position
is not “so compelling that no reasonable factfinder could reach a contrary
conclusion,” we uphold the decision of the BIA. Orellana–Monson v. Holder, 685
F.3d 511, 517–18 (5th Cir. 2012).
Petitioners’ failure to satisfy the lower burden of proof necessary to obtain
asylum prevents them from satisfying the higher burden of proof for withholding
of removal. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
Cerna argues also that she suffered past persecution and has a
well-founded fear of future persecution based on her political opinion and her
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No. 13-60159
experience with gangs. Because she did not raise these issues in her appeal to
the BIA, we lack jurisdiction to consider them. See Claudio v. Holder, 601 F.3d
316, 318 (5th Cir. 2010) (“[P]arties must fairly present an issue to the BIA to
satisfy § 1252(d)’s exhaustion requirement.”). Accordingly, this portion of the
petition for review will be dismissed. See Seddoh v. Holder, 395 F. App’x 137, 138
(5th Cir. 2010) (citing Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986)).
Having concluded “there can be no substantial question as to the outcome
of the case,” we GRANT respondent’s motion for summary denial. See Seddoh,
395 F. App’x at 139 (citing United States v. Holy Land Found. for Relief & Dev.,
445 F.3d 771, 781 (5th Cir. 2006)).
The petition for review is DISMISSED, in part, and DENIED, in part.
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