Perez-Leiva v. Garland

Case: 21-60935 Document: 00516493591 Page: 1 Date Filed: 10/03/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 3, 2022 No. 21-60935 Lyle W. Cayce Summary Calendar Clerk Manuela De Jesus Perez-Leiva; Jorge Marubi Regalado- Perez, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206 629 641 Agency No. A206 629 642 Before Barksdale, Elrod, and Haynes, Circuit Judges. Per Curiam:* Manuela De Jesus Perez-Leiva, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (BIA) dismissing her appeal from a decision of the Immigration Judge (IJ) denying her * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-60935 Document: 00516493591 Page: 2 Date Filed: 10/03/2022 No. 21-60935 application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). (A derivative claim for asylum is also presented for her son. And, Perez does not challenge the BIA’s conclusion she waived challenges to the IJ’s determination she did not demonstrate past persecution or establish eligibility for CAT protection.) Perez asserts the BIA erred in determining that, because she had not shown it would be unreasonable for her to relocate within Honduras to avoid harm, she failed to show a well-founded fear of future persecution. (In addition, she maintains: her asylum application was timely filed; and she established the requisite nexus between the harm she suffered and feared in Honduras and her family-based social group. Because the BIA did not rule on these matters, they are outside of the scope of our court’s review. E.g., Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (“The BIA did not, however, choose to act on that basis in the order we are now asked to review, and we are not permitted to consider reasons other than those it advanced.”).) In considering the BIA’s decision (and the IJ’s, to the extent it influenced the BIA), legal conclusions are reviewed de novo; factual findings, for substantial evidence. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 517– 18 (5th Cir. 2012). Under the substantial-evidence standard, petitioner must demonstrate “the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion”. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Perez does not have a well-founded fear of persecution if she could avoid persecution by relocating to another part of her country “if under all the circumstances it would be reasonable to expect [her] to do so”. Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (citation omitted). She contends she cannot reasonably relocate within Honduras to avoid harm because her family is still receiving threats from her persecutors, noting that 2 Case: 21-60935 Document: 00516493591 Page: 3 Date Filed: 10/03/2022 No. 21-60935 the two gang members …

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