Javier Medina Murillo v. Loretta Lynch

Case: 14-60482 Document: 00513214116 Page: 1 Date Filed: 09/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2015
No. 14-60482
Summary Calendar Lyle W. Cayce
Clerk
JAVIER MEDINA MURILLO,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A073 707 602
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Petitioner Javier Medina Murillo (Medina), a native and citizen of
Mexico, petitions for review of the decision of the Board of Immigration Appeals
(BIA), affirming the Immigration Judge’s (IJ) decision that Medina was
inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i) and thus ineligible for
adjustment of status. He also appeals the BIA’s affirmance of the IJ’s denial
of his application for protection under the Convention Against Torture (CAT)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60482 Document: 00513214116 Page: 2 Date Filed: 09/30/2015
No. 14-60482
and the IJ’s order of removal under 8 U.S.C. § 1227(a)(1)(E) for assisting alien
smuggling into the United States. On appeal, Medina has not challenged the
order of removal pursuant to § 1227(a)(2)(A)(iii) or the denial of his
applications for asylum and withholding of removal, so he has abandoned those
claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
We review only the BIA’s decision, “unless the IJ’s decision has some
impact on” that decision. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
We review factual findings under the substantial evidence standard and legal
questions de novo. Rui Yang v. Holder, 664 F.3d 580, 584 (5th Cir. 2011).
Medina contends that he bore his burden of showing that he is not
inadmissible for alien smuggling under §1182(a)(6)(E)(i), because at most the
evidence shows that he recklessly transported undocumented aliens. Arguing
that the statute under which he pleaded guilty, 8 U.S.C. § 1324(a)(1)(A)(ii), is
broader in scope than the alien smuggling statute because it encompasses a
mens rea of reckless disregard of the alien’s legal status, Medina asserts that
his prior transportation conviction did not necessarily trigger the bar.
Medina’s attempt to have the court apply the categorical approach is
misplaced: The proper analysis involves consideration of Medina’s actual
conduct and does not require an analysis of the elements of the statute
supporting the conviction. See Silve-Trevino v. Holder, 742 F.3d 197, 201 (5th
Cir. 2014); Renteria-Gonzalez v. INS, 322 F.3d 804, 817 n.15 (5th Cir. 2002).
In challenging the determination of inadmissibility, Medina contends
that the BIA erred in relying on hearsay evidence contained in his criminal
records. As Medina did not raise this contention in his appeal to the BIA, we
lack jurisdiction to review it. See Rui Yang, 664 F.3d at 588.
Medina claims that the IJ’s adverse credibility finding was not supported
by any cogent reasons. It is clear from the IJ’s comments, however, that a
2
Case: 14-60482 Document: 00513214116 Page: 3 Date Filed: 09/30/2015
No. 14-60482
strong consideration for the adverse credibility ruling was the lack of
credibility of Medina’s testimony regarding his decision to transport the newly
arrived aliens without valid proof of their legal status. See Wang, 569 F.3d at
538. An alien may be found to participate in a smuggling scheme even if he is
not present at the border crossing. Soriano v. Gonzales, 484 F.3d 318, 321 (5th
Cir. 2007). Medina arranged to pick up the illegal aliens near the border soon
after they had crossed illegally, which constituted substantial evidence of alien
smuggling that rendered him inadmissible. See id. at 320 n.1, 321.
Medina did not specifically argue to the BIA that the IJ erred in
determining that he was removable pursuant to § 1227(a)(1)(E)(i), and the BIA
did not rule on that claim. We therefore lack jurisdiction to review it. See Rui
Yang, 664 F.3d at 588.
Lastly, Medina argues that he is entitled to relief under CAT because the
record compels the conclusion that it is more likely than not that (1) he would
be subject to torture by criminal organizations if he returns to Mexico and (2)
the government would turn a blind eye to the conduct. He thus presents issues
of fact, but we do not have jurisdiction to analyze factual questions concerning
entitlement to relief under CAT. Hakim v. Holder, 628 F.3d 151, 155 (5th Cir.
2010).
For the foregoing reasons, Medina’s petition for review is DENIED.
3