Mejia Castellano, et al v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60223
Summary Calendar

DORA JACKELINE MEJIA CASTELLANO; JENNIFER JACKELINE
LARIOS MEJIA; XOCHIL ABIGAIL LARIOS MEJIA; BRYAN JAHAZIEL
LARIOS MEJIA; STEVEN JAVIER LARIOS MEJIA; FRANCISCO J. LARIOS
CASTRO, also known as Francisco Javier Larios Castro,

Petitioners

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 316 207
BIA No. A206 316 208
BIA No. A206 316 209
BIA No. A206 316 210
BIA No. A206 316 211
BIA No. A206 316 212

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Petitioners seek review of the Board of Immigration Appeals’ (BIA)
dismissal of their appeal of an immigration judge’s (IJ) denial of their

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
United States Court of Appeals
Fifth Circuit
FILED
January 23, 2020

Lyle W. Cayce
Clerk
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application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). They contend, inter alia: the IJ lacked
jurisdiction over the removal proceedings because the Notices to Appear
(NTAs) issued to them were defective, which rendered the removal proceedings
a violation of due process; and the BIA erred in concluding they were not
entitled to the relief sought. The Government contends petitioners failed to
exhaust their CAT and due-process claims. It further contends the NTAs were
sufficient and the BIA was correct in determining petitioners were not entitled
to relief.
In 2013, lead petitioner Dora Jackeline Mejia Castellano, a native and
citizen of Honduras, attempted to enter the United States along with her
husband Francisco J. Larios Castro and her children Jennifer Jackeline Larios
Mejia, Xochil Abigail Larios Mejia, Bryan Jahaziel Larios Mejia, and Steven
Javier Larios Mejia. The Department of Homeland Security served them with
NTAs, stating they were removable because they lacked valid entry
documents. Petitioners conceded the charges, and an IJ consolidated their
proceedings and sustained the charges.
Castellano applied for asylum, withholding of removal, and CAT relief,
designating her husband and children as derivative beneficiaries. In
proceedings before the IJ, Castellano was the only witness to testify. She
testified: she actively supported a political party in Honduras; after she left a
campaign event one night with her husband and youngest child, members of
an opposing party approached, began to insult them, and ripped her shirt,
which indicated her support for her party’s candidate for the presidency; they
warned her not to show up for an upcoming election “because if [she] did they
were going to do something”; Castellano reported this incident to police; two or
three nights later, she and her husband were awoken by neighbors yelling
there were people outside their house; when the couple went out to investigate,
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they found a gasoline tank and gasoline spread around the house; and this
incident prompted them to leave the country.
The IJ denied relief, giving some weight to Castellano’s testimony but
finding it insufficient to establish entitlement to the relief requested.
Petitioners challenged this ruling on appeal to the BIA. Relying on Pereira v.
Sessions, 138 S. Ct. 2105 (2018), they claimed that, because the NTAs failed to
specify the time and place at which they were to appear, the IJ never acquired
jurisdiction. They further challenged the IJ’s determination they were not
entitled to relief.
The BIA rejected the assertion based on Pereira and concluded the
incidents to which Castellano had attested neither qualified as past
persecution nor established a well-founded fear of future persecution. Further,
because petitioners did not claim to fear torture by public officials and “d[id]
not meaningfully challenge” the IJ’s finding public officials would be unlikely
to acquiesce in their torture, the BIA found they failed to show error in the
denial of CAT relief.
Circuit precedent forecloses petitioners’ assertion that, because the
issued NTAs failed to designate a time and place for the initial hearing, the IJ
lacked jurisdiction and the removal proceedings contravened due process. See
Pierre-Paul v. Barr, 930 F.3d 684, 689 (5th Cir. 2019), petition for cert. filed, —
U.S.L.W.— (U.S. 16 Dec. 2019) (No. 19-779).
Petitioners assert the BIA erred by not addressing whether they had
shown the Honduran government was unwilling or unable to protect them.
Because this contention claims an error “stemming from the BIA’s act of
decisionmaking . . . that neither party could have possibly raised prior to the
BIA’s decision”, a post-decision motion was required to exhaust it. See Omari
v. Holder, 562 F.3d 314, 320–21 (5th Cir. 2009). No such motion was filed;
accordingly, our court lacks jurisdiction to consider it. See id. at 321.
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In reviewing the dismissal of petitioners’ substantive claims for asylum,
withholding of removal, and CAT relief, this court considers only the decision
of the BIA, except to the extent the IJ’s ruling affected that decision. Orellana-
Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (citation omitted). The
BIA’s factual findings are reviewed for substantial evidence, and are affirmed
unless petitioners show the evidence in their favor “was so compelling that no
reasonable factfinder could conclude against it”. Wang v. Holder, 569 F.3d 531,
536–37 (5th Cir. 2009) (citations omitted).
Regarding petitioners’ request for CAT relief and their contentions
regarding due process, the Government contends they are unexhausted and
that, accordingly, our court lacks jurisdiction. Because the BIA reached the
merits of that claim, however, our jurisdiction is proper. See Lopez-Dubon v.
Holder, 609 F.3d 642, 644–45 (5th Cir. 2010) (reaching issue on merits where
BIA had done so, despite issue being improperly presented to BIA).
To qualify for asylum, an alien must show that (1) she was persecuted or
has a well-founded fear of persecution, (2) “by the government or forces that a
government is unable or unwilling to control”, (3) on account of a protected
ground, including “membership in a particular social group or political
opinion”. Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citations
omitted). “The standard for obtaining withholding of removal is even higher
than the standard for asylum, requiring a showing that it is more likely than
not that the alien’s life or freedom would be threatened by persecution on one
of those [protected] grounds.” Orellana-Monson, 685 F.3d at 518 (citation
omitted). To obtain relief under the CAT, an alien must show, inter alia, that
she would more likely than not be tortured if removed to the proposed country
of removal. Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015) (citation
omitted).
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Castellano testified she actively supported a political party in Honduras
and alleges she was persecuted for her political beliefs on two occasions: first
when members of an opposing party threatened and mistreated her, then when
unidentified persons poured gasoline around her house. This evidence does
not compel the conclusions these incidents were related, that the former
incident rises to the level of persecution, or that the latter incident was based
on Castellano’s political opinions. Petitioners have not otherwise shown an
objective likelihood of future persecution on a protected ground or that it is
more likely than not they will be subjected to state-sanctioned torture in
Honduras.
DISMISSED in part; DENIED in part.
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