Gomez-Zelaya v. Garland

Case: 21-60390 Document: 00516300892 Page: 1 Date Filed: 04/29/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60390
FILED
April 29, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Fatima Del Carmen Gomez-Zelaya,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 273 137
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Petitioner Fatima Del Carmen Gomez-Zelaya, a native and citizen of
El Salvador, petitions for review of a decision of the Board of Immigration
Appeals (BIA) dismissing her appeal from a decision of an Immigration Judge
(IJ). The IJ concluded that Gomez-Zelaya was ineligible for asylum,
*
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opinion should not be published and is not precedent except under the limited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: 21-60390 Document: 00516300892 Page: 2 Date Filed: 04/29/2022
No. 21-60390
withholding of removal, and relief under the Convention Against Torture
(CAT).
She contends that the BIA erred in analyzing her claims for asylum
and withholding of removal by, among other things, concluding that her
proposed particular social group (PSG) is not cognizable. “Asylum and
withholding of removal claims, in part, turn on . . . whether a group
constitutes a cognizable” PSG. Gonzales-Veliz v. Barr, 938 F.3d 219, 228-9
(5th Cir. 2019). Gomez-Zelaya has not shown error in the BIA’s
determination that her proposed PSG — Salvadoran women who fear
violence and delinquency in their home country — is not a cognizable group.
Id. at 229, 232. Her proposed PSG “lacks particularity because broad swaths
of society may be susceptible to victimization.” Id. at 232 (quotation marks
omitted). The failure to assert a cognizable PSG dooms her claims for asylum
and withholding of removal so we need not evaluate the other errors she
raises relating to these claims. INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
As for her CAT claim, Gomez-Zelaya did not raise before the BIA the
IJ’s and BIA’s purported failure to (1) address evidence pertaining to gang
activity and the possibility of future mistreatment (2) elucidate evidence, and
(3) meaningfully address why she was not entitled to CAT relief. She has not
exhausted these claims because she did not give the BIA an opportunity to
consider them. Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir.
2022). We therefore lack jurisdiction to consider these issues. Roy v. Ashcroft,
389 F.3d 132, 137 (5th Cir. 2004); 8 U.S.C. § 1252(d)(1).
However, the BIA did consider her CAT claim evidence showing that
Salvadoran authorities acquiesce in human rights violations. This issue is
exhausted because the BIA considered its merits. Thus, this court does have
jurisdiction to address that claim. Mirza v. Garland, 996 F.3d 747, 753 (5th
Cir. 2021). We are convinced that the BIA did not err in concluding that
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Case: 21-60390 Document: 00516300892 Page: 3 Date Filed: 04/29/2022
No. 21-60390
Gomez-Zelaya has not shown that “it is more likely than not that she will be
tortured if she returns to her country of origin.” See Martinez-Lopez v. Barr,
943 F.3d 766, 772-73 (5th Cir. 2019).
Gomez-Zelaya’s petition for review is DENIED IN PART AND
DISMISSED IN PART.
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