Hernandez-Marchante v. Garland

Case: 20-60887 Document: 00516402211 Page: 1 Date Filed: 07/21/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 21, 2022 No. 20-60887 Summary Calendar Lyle W. Cayce Clerk Kevin David Hernandez-Marchante, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209 998 631 Before Higginbotham, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* Kevin David Hernandez-Marchante, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal from the denial by an immigration judge * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-60887 Document: 00516402211 Page: 2 Date Filed: 07/21/2022 No. 20-60887 (IJ) of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). As a threshold matter, Hernandez-Marchante argues that based on recent case law, the IJ did not have jurisdiction and we should, thus, terminate these proceedings because his initial notice to appear (NTA) did not contain the date and place of his first immigration hearing. In Niz-Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021), the United States Supreme Court concluded that an NTA sufficient to trigger the stop- time rule must have all of the requisite information in a single document. However, Hernandez-Marchante is not seeking cancellation of removal such that the time-stop rule is applicable. Accordingly, we decline to terminate for lack of jurisdiction. On appeal, Hernandez-Marchante argues that he is entitled to relief based on a showing of past persecution and a fear of future persecution on account of his membership in a particular social group, namely witnesses to gang violence in El Salvador. He further argues that it is more likely than not that he would be tortured and that government officials would acquiesce in his torture if he were to return to El Salvador. Moreover, he argues that the IJ should have granted him discretionary humanitarian asylum based on his past persecution. We generally have authority to review only the decision of the BIA, but we will consider the IJ’s decision when it influenced the determination of the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Here, “although the BIA agreed with the IJ’s analysis in certain respects, the BIA’s decision does not rely on the IJ’s decision, and thus our review is confined to the BIA’s analysis and reasoning.” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010). We review the BIA’s rulings of law de novo and its findings of fact for substantial evidence. Zhu, 493 F.3d at 594; see 8 U.S.C. § 1252(b)(4)(B). 2 Case: 20-60887 Document: 00516402211 Page: 3 Date Filed: 07/21/2022 No. 20-60887 Regardless of whether Hernandez-Marchante demonstrated persecution, he has not established that any persecution he suffered was on account …

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