Axel Escobar-Ponce v. William Barr, U. S. Atty Gen

Case: 17-60726 Document: 00515109490 Page: 1 Date Filed: 09/09/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60726 FILED September 9, 2019 AXEL JACOB ESCOBAR-PONCE, Lyle W. Cayce Clerk Petitioner, v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A208 677 498 Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges. PER CURIAM:* Petitioner Axel Jacob Escobar-Ponce, a native and citizen of El Salvador, seeks review of a final order of removal issued by the Board of Immigration Appeals. He contends that the BIA erred in affirming the Immigration Judge’s judgment because the IJ lacked jurisdiction due to insufficient notice and applied the incorrect legal standard to Axel’s Convention Against Torture claim. We disagree on both counts. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-60726 Document: 00515109490 Page: 2 Date Filed: 09/09/2019 No. 17-60726 Axel has not exhausted his notice claim, so we lack jurisdiction to review it. And the IJ applied the correct legal standard for CAT claims. We thus DENY Axel’s petition as to his CAT claim and DISMISS his petition for lack of jurisdiction on the notice issue. I Around October 30, 2015, Petitioner Axel Jacob Escobar-Ponce—a one- year-old child at the time—entered the United States with his mother, Wendy Elizabeth Ponce-Torres, without inspection. Wendy claims they were forced to leave their home because of the violent MS-13 gang. Specifically, Wendy alleges that MS-13 gang members pushed her, threatened to kill her whole family, murdered her cousin, and twice beat up Axel’s father. Besides the push, Wendy and Axel were never physically harmed, nor did Wendy ever report the gang threats to Salvadoran police. The next day, Axel was served with a notice to appear (NTA) for unlawfully entering the country. The NTA reflected that a hearing date and time would be set later. At the hearing, Axel sought asylum, withholding of removal, and CAT protection. The IJ ruled against him on all three claims, but he only appeals his CAT protection eligibility. The IJ found that Axel did not meet CAT protection standards because there was insufficient evidence that the “government of El Salvador would wish to torture or acquiesce in the torture [of Axel], including the concept of willful blindness.” Axel argued this was the wrong legal standard to the BIA. But the BIA affirmed the IJ’s judgment, so Axel appealed. And while the petition for review was pending, the Supreme Court issued its decision in Pereira v. Sessions, holding that a “notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).’ ” 138 S. Ct. 2105, 2110 (2018). In response, Axel supplemented his brief under Federal Rule of 2 ...

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