Ana Diaz-De Ardon v. Jefferson Sessions, II

Case: 17-60093 Document: 00514487357 Page: 1 Date Filed: 05/24/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60093 May 24, 2018
Summary Calendar
Lyle W. Cayce
Clerk
ANA MARIA DIAZ-DE ARDON; GERMAN EMANUEL ARDON-DIAZ;
INGRID ESTEFANIA CESTONI-DIAZ; JOSUE EZEQUIEL PINEDA-DIAZ,
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. A202 004 416
BIA No. A202 004 417
BIA No. A202 004 418
BIA No. A202 004 419
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
Ana Maria Diaz-de Ardon, German Emanuel Ardon-Diaz, Ingrid
Estefania Cestoni-Diaz, and Josue Ezequiel Pineda-Diaz, natives and citizens
of El Salvador, seek review of the dismissal by the Board of Immigration
Appeals (BIA) of their appeals from the denial by the Immigration Judge (IJ)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60093 Document: 00514487357 Page: 2 Date Filed: 05/24/2018
No. 17-60093
of their applications for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We review the decision of the BIA and
will consider the IJ’s decision only to the extent it influenced the BIA. Shaikh
v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). We review questions of law de
novo and factual findings for substantial evidence. Id. Under the substantial
evidence standard, “[t]he alien must show that the evidence was so compelling
that no reasonable factfinder could conclude against it.” Wang v. Holder, 569
F.3d 531, 537 (5th Cir. 2009).
To qualify for asylum, an alien must prove that he or she either has
suffered past persecution or has a well-founded fear of future persecution in
his or her native country. 8 C.F.R. § 208.13(b). “[T]he applicant must establish
that race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting the
applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). Petitioners’ claim of asylum eligibility
is predicated on their allegation that at least one central reason they suffered
past, or would suffer future, persecution was based on their membership in a
particular social group, namely membership in the de Ardon family.
Petitioners have not shown that the evidence compels a conclusion
contrary to that of the BIA and the IJ on the issue whether they are entitled
to asylum. See Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). At a
minimum, Petitioners failed to establish that they either were victims of past
persecution in El Salvador or have a reasonable fear of future persecution
should they return there. As for past persecution, Petitioners demonstrated,
at most, three instances in which Josue and Diaz-de Ardon were approached
by gang members and threatened with harm if Josue did not join. This is
insufficient to establish past persecution. See Eduard v. Ashcroft, 379 F.3d
182, 188 (5th Cir. 2004); Aguilar v. Mukasey, 294 F. App’x 147, 148 (5th Cir.
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No. 17-60093
2008). 1 As for future persecution, Petitioners point to no evidence of future
acts that would constitute persecution beyond the cumulative effect of the
gang’s previous threats. These previous threats do not rise to the level of past
persecution, and Petitioners’ subjective fear of persecution does not, on its own,
satisfy the objective-reasonableness requirement. Zhao, 404 F.3d at 307.
To qualify for withholding of removal, an alien “must demonstrate a clear
probability of persecution upon return.” Roy v. Ashcroft, 389 F.3d 132, 138 (5th
Cir. 2004) (internal quotation marks and citation omitted). As “[w]ithholding
of removal is a higher standard than asylum,” one who fails to show
entitlement to asylum fails to show entitlement to withholding of removal, Efe
v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). As substantial evidence supports
the BIA’s finding that Petitioners failed to meet their burden for asylum, they
have also failed to demonstrate their burden for withholding of removal. Id.Finally, to obtain relief under the CAT, “an applicant must show that it
is more likely than not that he would be tortured if returned to his home
country.” Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005) (internal
quotation marks and citation omitted). There is no basis in the record to
demonstrate that the BIA’s determination was unsupported by substantial
evidence. Nor does the case require remand in light of our recent decision in
Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017). Petitioners provided no
particularized evidence in this case of the sort offered by Iruegas-Valdez, and
there is nothing in the record to indicate that the IJ or BIA used an incorrect
standard to analyze Petitioners’ CAT claims given the evidence presented by
Petitioners before the IJ.
PETITION DENIED.
1 Although unpublished opinions issued on or after January 1, 1996, are not
precedential, they may nevertheless be persuasive. See Ballard v. Burton, 444 F.3d 391, 401
& n.7 (5th Cir. 2006); 5TH CIR. R. 47.5.4.
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