Carla Mejia-Oviedos v. Jefferson Sessions

Case: 17-60179 Document: 00514397087 Page: 1 Date Filed: 03/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60179
FILED
March 22, 2018
Summary Calendar
Lyle W. Cayce
Clerk
CARLA PATRICIA MEJIA-OVIEDOS, also known as Carla Patricia Mejia-
Oviedge; FABIO ALEJANDRO LOPEZ-MEJIA,
Petitioners
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 450 601
BIA No. A208 450 602
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Carla Patricia Mejia-Oviedos and her minor son Fabio Alejandro Lopez-
Mejia, natives and citizens of Honduras, applied for admission into the United
States without valid entry documents. During their removal proceedings, they
applied for asylum and withholding of removal on the grounds that they had
suffered death threats in Honduras from a gang that had attempted to recruit
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-60179
Lopez and that, if returned to Honduras, they reasonably feared death on
account of their membership in the particular social group of Honduran
mothers fleeing with their children because of gang recruitment. The Board of
Immigration Appeals (BIA) affirmed the immigration judge’s (IJ) denial of the
requested relief. Mejia and Lopez jointly petition for review.
The BIA’s conclusions of law are reviewed de novo, Shaikh v. Holder, 588
F.3d 861, 863 (5th Cir. 2009); its findings of fact, including whether an alien is
eligible for asylum or withholding of removal, for substantial evidence, Zhang
v. Gonzales, 432 F.3d 339, 343–44 (5th Cir. 2005). “Under substantial evidence
review, [we] may not reverse the BIA’s factual findings unless the evidence
compels it.” Wang v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009).
First, petitioners contend the IJ deprived them of due process by denying
their request to continue the asylum merits hearing because they had only just
obtained legal counsel and needed time to supplement their initial asylum
application. The record shows, however, that petitioners’ counsel had
appeared on their behalf more than three weeks earlier and was allowed to
supplement the asylum application at the hearing. The BIA did not abuse its
discretion in concluding petitioners did not show good cause for the requested
continuance. Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). Moreover,
as the BIA stated, petitioners did not explain how the denial of a continuance
caused “actual prejudice” or “materially affected the outcome of [their] case”.
In re Sibrun, 18 I. & N. Dec. 354, 356–57 (BIA 1983). Accordingly, they were
not denied due process. E.g., Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir. 2006).
To obtain discretionary asylum relief as a refugee, an applicant must
demonstrate either past persecution or a reasonable, well-founded fear of
future persecution on account of one of the five grounds enumerated in 8 U.S.C.
§ 1101(a)(42)(A), including, as relevant here, membership in a particular social
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No. 17-60179
group. Milat v. Holder, 755 F.3d 354, 360 (5th Cir. 2014). To show “persecution
based on membership in a particular social group, the petitioners must show
that they are members of a group of persons that share a common immutable
characteristic that they either cannot change or should not be required to
change”. Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)
(internal quotation marks and citation omitted). And, “the failure to establish
a well-founded fear [of persecution based on membership in a protected group]
for asylum eligibility also forecloses eligibility for withholding of removal.”
Milat, 755 F.3d at 360 (internal citation omitted).
The BIA’s findings that, inter alia, petitioners were not subjected to past
persecution, did not have a well-founded fear of future persecution in
Honduras, and were not members of a particular social group are supported by
substantial evidence. See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir.
2006); Eduard v. Ashcroft, 379 F.3d 182, 193–94 (5th Cir. 2004). Notably, that
petitioners’ family has remained in Honduras unharmed belies petitioners’
assertion that they have a well-founded fear of persecution if they return. E.g.,
Eduard, 379 F.3d at 193 (“fear of persecution is reduced when [petitioner’s]
family remains in his native country unharmed”). Moreover, our court has
repeatedly held petitioners’ proposed social group—those fleeing their home
countries to avoid gang recruitment—is not a protected one. E.g., Orellana-
Monson, 685 F.3d at 521–22; Abrego v. Lynch, 669 F. App’x 280, 281 (5th Cir.
2016); Arteaga Hernandez v. Lynch, 668 F. App’x 578, 579 (5th Cir. 2016).
DENIED.
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