Pineda v. Garland

Case: 20-60724 Document: 00516127198 Page: 1 Date Filed: 12/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 13, 2021
No. 20-60724 Lyle W. Cayce
Summary Calendar Clerk
Wendy Pineda; Jesus Daniel Solorzano Pineda,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 844 952
BIA No. A205 844 955
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Wendy Pineda and her derivative beneficiary, Jesus Daniel Solorzano
Pineda, are natives and citizens of Honduras. She petitions for review of the
denial of her application for asylum, withholding of removal, and protection
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60724 Document: 00516127198 Page: 2 Date Filed: 12/13/2021
No. 20-60724
under the Convention Against Torture (CAT). Pineda argues that she was
persecuted by gang members, and fears future persecution, based on her and
Jesus’s membership in particular social groups (PSGs) defined separately as
Honduran women and men “who fear violence and delinquency in their
home country.”
This court reviews the final decision of the Board of Immigration
Appeals (BIA) and will only consider the decision of the immigration judge
(IJ) where it influenced the decision of the BIA. Zhu v. Gonzales, 493 F.3d
588, 593 (5th Cir. 2007). Where, as here, the BIA affirmed the IJ’s decision
without an opinion, the IJ’s decision is the final agency decision for purposes
of judicial review on appeal. See Soadjede v. Ashcroft, 324 F.3d 830, 831-32
(5th Cir. 2003). Factual findings are reviewed for substantial evidence and
legal questions de novo, giving deference to the BIA’s interpretation of any
ambiguous immigration statutes. Orellana-Monson v. Holder, 685 F.3d 511,
517-18 (5th Cir. 2012). Whether an applicant is eligible for asylum,
withholding of removal, or relief under the CAT is reviewed for substantial
evidence. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (citations
omitted).
To be eligible for asylum, Pineda must show she is unable or unwilling
to return to her country “because of persecution or a well-founded fear of
persecution on account of,” as relevant here “membership in a [PSG].” 8
U.S.C. § 1101(a)(42)(A); see 8 U.S.C. § 1158(b)(1). Pineda has failed to show
that her proposed PSGs meet the necessary requirements. See Orellana-
Monson, 685 F.3d at 518-19, 521. Because she has failed to demonstrate
entitlement to asylum, she has also failed to demonstrate entitlement to
withholding of removal. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir.
2002).
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Case: 20-60724 Document: 00516127198 Page: 3 Date Filed: 12/13/2021
No. 20-60724
Pineda has also failed to establish that she more likely than not would
be tortured with the acquiescence of a governmental official if removed. See
Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015); see also Morales v.
Sessions, 860 F.3d 812, 818 (5th Cir. 2017) (defining “torture” for purposes
of the CAT). Her argument that she will be tortured based on generalized
social conditions in Honduras is too speculative to support CAT relief and is
insufficient to compel reversal under the substantial evidence standard. See
Ramirez-Mejia, 794 F.3d at 493-94. Finally, we lack jurisdiction to consider
Pineda’s contention, raised for the first time on appeal, that the agency
misapplied the standard of review to her CAT claim. See Avelar-Oliva v.
Barr, 954 F.3d 757, 766 (5th Cir. 2020); 8 U.S.C. § 1252(d)(1).
The petition for review is DENIED.
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