Roberto Jimenez Garcia v. Loretta Lynch

Case: 14-60470 Document: 00513095283 Page: 1 Date Filed: 06/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60470
Fifth Circuit
FILED
Summary Calendar June 26, 2015
Lyle W. Cayce
ROBERTO JOSUE JIMENEZ GARCIA, Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 969 800
Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
Roberto Josue Jimenez Garcia (Jimenez), a native and citizen of
Nicaragua, petitions for review of a decision by the Board of Immigration
Appeals (BIA) dismissing his application for withholding of removal. Jimenez
sought relief based on his membership in a political party opposed to the
Nicaraguan government and his fear that he would be persecuted if he
returned to Nicaragua. The immigration judge (IJ) determined that Jimenez
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-60470 Document: 00513095283 Page: 2 Date Filed: 06/26/2015
No. 14-60470
failed to substantiate his claim by not submitting any documentation to
support his assertions of political persecution and ordered Jimenez removed to
Nicaragua. The BIA agreed and summarily affirmed the IJ’s decision,
dismissing the appeal. When the BIA summarily affirms the IJ’s decision
without opinion, this court reviews the IJ’s decision. Galvez-Vergara v.
Gonzales, 484 F.3d 798, 801 (5th Cir. 2007).
To be entitled to withholding of removal, Jimenez must demonstrate that
it is more likely than not that his life or freedom will be threatened because of
his political opinion. See 8 U.S.C. § 1231(b)(3)(A). We review the factual
determination that an alien is not eligible for withholding of removal under the
substantial evidence standard. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th
Cir. 2006). Under that standard, we may not reverse an immigration court’s
factual findings unless “the evidence was so compelling that no reasonable
factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th
Cir. 2009).
Jimenez argues that the IJ erred by requiring him to provide
corroborating evidence for his claim of political persecution. However, in order
to carry his burden of proof, a petitioner may be required to present reasonably
available corroborative evidence of his claims, and the failure to do so may be
dispositive of the petitioner’s application for relief without regard to the
credibility of his testimony. Rui Yang v. Holder, 664 F.3d 580, 585-87 (5th Cir.
2011). In reviewing challenges to determinations regarding the availability of
corroborating evidence, this court considers whether the IJ was “compelled to
conclude that such corroborating evidence is unavailable.” Id. at 587 (quoting
8 U.S.C. § 1252(b)(4)).
Jimenez testified that he received death threats based on his opposition
to the Nicaraguan government and membership in the Party Liberal
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Case: 14-60470 Document: 00513095283 Page: 3 Date Filed: 06/26/2015
No. 14-60470
Constitutional. He also recounted an incident in which individuals threw rocks
and other objects at his house based on his political activity. Jimenez
estimated that the party had three to four million members. However, in spite
of the alleged size and influence of the party, Jimenez did not submit any
documentation to corroborate his claim of political persecution. He offered only
general assertions about the opposition party and the current state of political
affairs in Nicaragua. In light of the record, the IJ was not compelled to
conclude that corroborating evidence was unavailable. See Rui Yang, 664 F.3d
at 587. The IJ did not err when it concluded that Jimenez had failed to meet
his burden of proof in showing that it is more likely than not that he would be
harmed based on political opinion if he was removed to Nicaragua.
In light of the foregoing, Jimenez’s petition for review of the BIA’s order
dismissing his appeal is DENIED.
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