Avila-Simaj v. Garland

Case: 22-60054 Document: 00516520512 Page: 1 Date Filed: 10/25/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 25, 2022 No. 22-60054 Lyle W. Cayce Summary Calendar Clerk Clara Sulamita Avila-Simaj; Joseline Fabiola Vicenta Guez-Avila; Wendy Juana Angeli Avila, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A208 980 214 Agency No. A208 980 215 Agency No. A208 980 216 Before Jolly, Jones, and Ho, Circuit Judges. Per Curiam:* Clara Sulamita Avila-Simaj, a native and citizen of Guatemala, entered the United States illegally in 2016 with her two daughters. She seeks review * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-60054 Document: 00516520512 Page: 2 Date Filed: 10/25/2022 No. 22-60054 of a decision of the Board of Immigration Appeals (BIA) dismissing her appeal and affirming the immigration judge’s (IJ’s) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).1 This court reviews the BIA’s decision and considers the IJ’s decision only to the extent it influenced the BIA. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). The BIA’s factual findings are reviewed for substantial evidence, and its legal conclusions are reviewed de novo. Id. at 517-18. Avila-Simaj argues that the IJ and the BIA should have considered the cumulative effect of the multiple threats and harms she experienced in Guatemala in assessing past persecution. But the decisions of both the IJ and the BIA reflect that they did just that, and Avila-Simaj has not carried her burden to show otherwise. See Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004). The IJ and the BIA also reasonably found that the threats that Avila- Simaj experienced in Guatemala did not rise to the level of persecution, especially where there was no physical harm.2 See id. at 187 n.4. Avila-Simaj further argues that the BIA erred in determining that the threats and extortion she experienced in Guatemala did not have the requisite 1 Because Avila-Simaj is the lead petitioner and her daughters’ claims for immigration relief are derivative of her claim or dependent on the same facts and circumstances of her case, this opinion will hereinafter refer only to Avila-Simaj unless otherwise specified. 2 Though the gang members never acted on their threats to harm Avila-Simaj and her daughters, Avila-Simaj testified that she still believed that they would harm her family because she had a cousin who the gangs had attempted to extort, and they eventually raped and killed her when she did not meet their demands. As the Government points out, there is no evidence that ties her cousin’s rape and murder to the threats that Avila-Simaj received from the gangs. Moreover, “[t]he alleged past-persecution of another [family member] cannot be …

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