Anzures-Lopez v. Garland

Case: 22-60375 Document: 00516789077 Page: 1 Date Filed: 06/15/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-60375 June 15, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Santos Anzures-Lopez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A078 989 838
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Santos Anzures-Lopez, a native and citizen of Mexico, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal and affirming the immigration judge’s (IJ’s) denial of cancellation
of removal, withholding of removal, and protection under the Convention
Against Torture (CAT).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60375 Document: 00516789077 Page: 2 Date Filed: 06/15/2023
No. 22-60375
Anzures-Lopez argues that the BIA erred in denying his application
for cancellation of removal based on the finding that he had failed to show
that his three United States citizen children would suffer exceptional and
extremely unusual hardship upon his removal to Mexico. He further argues
that the BIA erred in denying withholding of removal based on the finding
that he had failed to show the requisite nexus between the harm he suffered
and feared in Mexico and his membership in a particular social group (PSG).
Finally, he challenges the BIA’s denial of his request for CAT relief.
This court reviews the BIA’s decision and considers the IJ’s decision
only to the extent it influenced the BIA. 1 Arulnanthy v. Garland, 17 F.4th
586, 592 (5th Cir. 2021). The BIA’s factual findings are reviewed for
substantial evidence and questions of law, including jurisdictional questions
are reviewed de novo. Id. The substantial evidence test “requires only that
the BIA’s decision be supported by record evidence and be substantially
reasonable.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). We will
not reverse the BIA’s factual findings unless the evidence compels a contrary
conclusion. Chen v. Gonzalez, 470 F.3d 1131, 1134 (5th Cir. 2006).
Though he acknowledges that 8 U.S.C. § 1252(a)(2)(B)(i) deprives
this court of jurisdiction to review the denial of certain types of discretionary
relief, including cancellation of removal, Anzures-Lopez maintains that the
BIA’s decision of whether an alien has sufficiently demonstrated exceptional
and unusual hardship for a qualifying relative requires the application of a
legal standard to established facts and is therefore reviewable.
_____________________
1
Anzures-Lopez incorrectly states that the BIA adopted the IJ’s decision, citing
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). This is incorrect; the BIA affirmed
specific findings of the IJ and made its own findings.
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No. 22-60375
Anzures-Lopez’s argument is foreclosed by this court’s precedent in
Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir. 2022), where we
held that the hardship determination “is a discretionary and authoritative
decision” which “is beyond [this court’s] review” under § 1252(a)(2)(B)(i).
Accordingly, we lack jurisdiction to consider Anzures-Lopez’s challenge to
the BIA’s hardship determination.
Anzures-Lopez argues that the BIA erred in denying withholding of
removal based on the finding that he had failed to show the requisite nexus
between the harm he suffered and feared in Mexico and his PSG
membership.
Substantial evidence supports the BIA’s finding that the cartel
members who attacked Anzures-Lopez were motivated by criminal and
financial concerns and not by his membership in any of his proposed social
groups. See Gonzales-Veliz, 938 F.3d at 224. At his hearing before the IJ,
Anzures-Lopez testified that the reason the cartel members targeted him was
“because of money.” He further testified that the cartel members were
dedicated to extorting people and that “[t]hey don’t care who it is.”
“Conduct that is driven by criminal . . . motives does not constitute
persecution” on account of a protected ground. See Vasquez-De Lopez v.
Lynch, 620 F. App’x 293, 295 (5th Cir. 2015) (citing Thuri v. Ashcroft, 380
F.3d 788, 792-93 (5th Cir. 2004)); see also Garcia v. Holder, 756 F.3d 885, 890
(5th Cir. 2014) (stating that “[t]his court does not recognize economic
extortion as a form of persecution under immigration law”).
Anzures-Lopez next argues that the BIA erred in adopting the IJ’s
denial of CAT relief. He claims that he faces a likelihood of torture in Mexico
given his credible testimony about his kidnapping and beating by members of
the Zetas cartel and subsequent death threats by cartel members, as well as
country conditions evidence showing that the police in Mexico are corrupt
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No. 22-60375
and that government efforts to address corruption have largely been
ineffective.
Though the country conditions evidence describes instances of police
corruption and brutality, on balance, it does not compel the conclusion that
Anzures-Lopez would “more likely than not” be tortured if removed to
Mexico. See Mwembie v. Gonzales, 443 F.3d 405, 415 (5th Cir. 2006).
Further, because Anzures-Lopez failed to show that his experiences in
Mexico amounted to persecution, he cannot meet the higher standard for
torture, which “is an extreme form of cruel and inhuman treatment and does
not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2);
see Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019). Accordingly, the BIA
reasonably concluded that Anzures-Lopez was not eligible for CAT relief.
See Omagah, 288 F.3d at 258.
The petition for review is DISMISSED in part and DENIED in
part.
4