Pedro Hernandez-Lopez v. Jefferson Sessions, III

Case: 15-60809 Document: 00514021060 Page: 1 Date Filed: 06/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60809 FILED
Summary Calendar June 6, 2017
Lyle W. Cayce
Clerk
PEDRO ALEX HERNANDEZ-LOPEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
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cons/w 15-60823
ELSA LOPEZ-LOPEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of Orders of the
Board of Immigration Appeals
BIA No. A202 126 066
BIA No. A205 404 908
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No. 15-60809
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Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Elsa Lopez-Lopez and her son, Pedro Alex Hernandez-Lopez, petition for
review of separate decisions issued by the Board of Immigration Appeals (BIA),
affirming the immigration judge’s (IJ) denial of Lopez-Lopez’s applications for
withholding of removal and relief under the Convention Against Torture
(CAT), and Hernandez-Lopez’s applications for asylum, withholding of
removal, and CAT relief.
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).
Factual findings are reviewed under the substantial evidence standard, and
legal questions are reviewed de novo. Rui Yang v. Holder, 664 F.3d 580, 584
(5th Cir. 2011). Under the substantial evidence standard, the petitioner must
show that “the evidence is so compelling that no reasonable factfinder could
reach” a conclusion contrary to that of the BIA. Orellana-Monson v. Holder,
685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks and citation
omitted).
As a threshold matter, the Government argues that Lopez-Lopez and
Hernandez-Lopez have not exhausted their administrative remedies with
respect to the particular social group that they assert in their petition for
review. The Government is correct. Because Lopez-Lopez and Hernandez-
Lopez did not exhaust their claim with respect to the particular social group
identified for the first time before the BIA, this court lacks jurisdiction to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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review their claim based on those characteristics. See 8 U.S.C. § 1252(d)(1);
Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009).
As to the particular social group that Lopez-Lopez preserved for review,
the BIA’s determination is consistent with this court’s rejection of another
particular social group defined by its members’ relationship to gangs as “too
amorphous [and] encompass[ing] a wide swath of society crossing many
political orientations, lifestyles, and identifying factors.” See Orellana-
Monson, 685 F.3d at 522. Lopez-Lopez also fails to point to record evidence
that women subject to violence in Guatemala “would be ‘perceived as a group’
by society.” See id. As to the particular social group that Hernandez-Lopez
preserved for review, this court has repeatedly found no error when the BIA
has held that social groups defined similarly to the one defined here are not
sufficiently particularized or socially visible to satisfy asylum requirements.
See e.g., id. at 516, 521-22.
In any event, even if we were to accept Lopez-Lopez’s and Hernandez-
Lopez’s proposed social groups, the record supports the conclusion that the
reported persecution was based upon a personal family dispute and general
criminality rather than a protected ground, and so the BIA did not err by
denying their request for asylum. See e.g., Adebisi v. INS, 952 F.2d 910, 913
(5th Cir. 1992). Because Lopez-Lopez and Hernandez-Lopez cannot
demonstrate that they are eligible for asylum, they also cannot show that they
meet the higher standard for withholding of removal. See Dayo v. Holder, 687
F.3d 653, 658-59 (5th Cir. 2012).
The denial of relief under the CAT is also reviewed under the substantial
evidence standard. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 353 (5th
Cir. 2002). To obtain relief under the CAT, the alien must show that it is more
likely than not that she would be tortured if removed to her home country.
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Ramirez-Mejia, 794 F.3d at 493. Although evidence of past torture can support
a CAT claim, see 8 C.F.R. § 1208.16(c)(3), Lopez-Lopez and Hernandez-Lopez
point to no evidence that they were ever tortured in Guatemala, and none is
apparent from the record. Moreover, Lopez-Lopez testified that she did not
report the incident with the unknown criminals to the police, nor did she know
whether the police would have helped her had she reported it. See Garcia v.
Holder, 756 F.3d 885, 892 (5th Cir. 2014). The BIA’s decisions affirming the
IJ’s denial of relief under the CAT are supported by substantial evidence. See
Ontunez-Tursios, 303 F.3d at 353.
In view of the foregoing, Lopez-Lopez’s and Hernandez-Lopez’s petitions
for review are DISMISSED in part and DENIED in part.
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