Elvira Pacheco v. Eric Holder, Jr.

Case: 12-60636 Document: 00512252025 Page: 1 Date Filed: 05/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 23, 2013
No. 12-60636
Summary Calendar Lyle W. Cayce
Clerk
ELVIRA CAMAC PACHECO, also known as Elvira Camac; also known as Eluira
Camac,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 278 780
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Elvira Camac Pacheco, a native and citizen of Mexico, seeks a petition for
review of the order of the Board of Immigration Appeals (BIA) affirming the
immigration judge’s (IJ) denial of her application for withholding of removal
under the Convention Against Torture (CAT). Pacheco argues that (1) the BIA
and the IJ applied two incorrect legal standards in determining her eligibility
for relief under the CAT; (2) her merits hearing was fundamentally unfair,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60636
violating her due process rights; and (3) the IJ erred in pretermitting her
application for cancellation of removal because she had not been convicted of a
crime involving moral turpitude.
Because the BIA agreed with the IJ’s findings and conclusions, we review
the decisions of both the IJ and the BIA. See Efe v. Ashcroft, 293 F.3d 899, 903
(5th Cir. 2002). Whether an alien has demonstrated eligibility for withholding
of removal is a factual determination reviewed for substantial evidence. See
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). In order to obtain relief
under the CAT, an alien has the burden of demonstrating “that it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.” Id. at 1139 (citing 8 C.F.R. § 208.16(c)(2)). The CAT defines torture
as “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person . . . by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.” § 208.18(a)(1).
Pacheco provides no evidence that either the IJ or the BIA used an
inappropriate standard of review when deciding whether she was more likely
than not to be tortured upon returning to Mexico. Her wholly conclusional
assertions are insufficient to state a claim and amount to a waiver of the claim
due to inadequate briefing. See Garrido-Morato v. Gonzales, 485 F.3d 319, 322
n.1 (5th Cir. 2007); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Moreover, she fails to provide any evidence that either the IJ or the BIA applied
an improper standard to determine whether officials acquiesced in torture. See
Hakim v. Holder, 628 F.3d 151, 155-56 (5th Cir. 2010) (noting that a
Government’s willful blindness to the torture would satisfy the acquiescence
requirement).
Pacheco’s assertion that her merits hearing violated her due process rights
is also without merit. She argues that she should have been given the
opportunity to get a reply from her Freedom of Information Act (FOIA) request
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No. 12-60636
to determine whether she was eligible for adjustment of status. However,
because Pacheco did not request a continuance or fairly present the issue of her
FOIA request during the merits hearing, she has arguably waived the claim. See
Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004). In any event, the BIA
adequately addressed Pacheco’s claim, noting that she had not raised the FOIA
issue before the IJ or requested a continuance.
Furthermore, the IJ did not err by pretermitting Pacheco’s application for
cancellation of removal. Contrary to her conclusional assertion otherwise,
pursuant to 8 U.S.C. § 1101(f)(7), a finding of good moral character is precluded
if, “during the period for which good moral character is required to be
established,” the person was “confined, as a result of conviction, to a penal
institution for an aggregate period of one hundred and eighty days or more.”
Pacheco admitted to serving over four years in prison; thus, she was statutorily
ineligible for cancellation of removal because she could not demonstrate the
requisite good moral character, regardless of whether she was convicted of a
crime involving moral turpitude. See Eyoum v. INS, 125 F.3d 889, 891 & n.2
(5th Cir. 1997) (voluntary departure); 8 U.S.C. § 1229b(b)(1)(B).
Accordingly, Pacheco’s petition for review is DENIED.
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