Soto-Gomez v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60122
Summary Calendar

Jesus Eduardo Soto-Gomez,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 683 419

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Jesus Eduardo Soto-Gomez petitions for review of the decision of the
Board of Immigration Appeals (BIA) upholding the decision of the
immigration judge (IJ) who denied his application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
August 10, 2020

Lyle W. Cayce
Clerk
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generally review only the decision of the BIA and consider the underlying IJ
decision only if it influenced the BIA’s determination. See Masih v. Mukasey,
536 F.3d 370, 373 (5th Cir. 2008). We review the factual findings of an
immigration court for substantial evidence and consider legal questions
under the de novo standard. Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009); Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The BIA’s factual
findings are conclusive unless the record compels a contrary finding. Sharma
v. Holder, 729 F.3d 407, 411 (5th Cir. 2013).
First, Soto-Gomez contends that the IJ deprived him of due process
by denying his request to continue the merits hearing so that he could hire a
new attorney and obtain documents to support his asylum application. The
record shows, however, that Soto-Gomez had 11 months between his prior
appearance before the IJ and the merits hearing and that his former attorney
had withdrawn from the case because Soto-Gomez failed to provide the
lawyer with requested documentation. The BIA did not abuse its discretion
in concluding Soto-Gomez did not show good cause for the requested
continuance. Masih, 536 F.3d at 373 (5th Cir. 2008). Moreover, Soto-Gomez
has not established that the denial of a continuance caused “actual
prejudice” or “materially affected the outcome of his case.” In re Sibrun, 18
I. & N. Dec. 354, 356–57 (BIA 1983).
In addition, Soto-Gomez maintains that the BIA erred in concluding
that he was not entitled to asylum or withholding of removal. Asylum may be
granted to “an alien who is unable or unwilling to return to his home country
because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or
political opinion.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005)
(internal quotation marks and citation omitted). Because the BIA determined
that Soto-Gomez had proved past persecution on account of an imputed
political opinion, it recognized a rebuttable presumption that his life or
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freedom would be threatened in the future. See 8 C.F.R. § 208.13(b)(1). Soto-
Gomez contends that the BIA erred in concluding that the Department of
Homeland Security (DHS) rebutted that presumption by showing that he
could relocate within Honduras and that it would be reasonable for him to do
so. See § 208.13(b)(1)(i). The BIA explicitly recognized that DHS had the
burden to prove the viability of internal relocation. Although DHS did not
present its own evidence regarding the issue, it could rely on Soto-Gomez’s
testimony. See, e.g., Singh v. Barr, 920 F.3d 255, 260 (5th Cir. 2019) (evidence
obtained through cross-examination of the alien). Soto-Gomez’s testimony
reflected that he had extended family in other cities in Honduras that he
considered safer than his home city of La Ceiba. Although the BIA may not
have explicitly considered each of the possible factors listed in
§ 208.13(b)(3), not all factors are necessarily relevant depending on the
circumstances of the case. Soto-Gomez has not shown that the BIA erred in
concluding that the presumption of future persecution was properly rebutted
by DHS. See Sharma, 729 F.3d at 411; § 208.13(b)(1)(i). Because he did not
meet the lower standard to qualify for asylum, he necessarily did not establish
a “clear probability of persecution” necessary to qualify for withholding of
removal. See Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004); Eduard
v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004).
In his final ground for relief, Soto-Gomez argues that the BIA erred in
adopting the IJ’s conclusion that he was not entitled to relief under the CAT.
The CAT provides that “[n]o State Party shall expel, return . . . or extradite
a person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture.” Efe v. Ashcroft, 293
F.3d 899, 907 (5th Cir. 2002). Torture is the intentional infliction of severe
mental or physical pain for the purpose of obtaining information,
intimidation, punishment, or discrimination, “when such pain or suffering is
inflicted by or at the instigation of or with the consent of or acquiescence of
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a public official or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1). The record does not compel a finding that any harm suffered
by Soto-Gomez was caused by or acquiesced in by government officials. See
Bah v. Ashcroft, 341 F.3d 348, 351-52 (5th Cir. 2003); § 208.18(a)(7).
Accordingly, his petition for review is DENIED.
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