Gaitan-Burgos v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60369
Summary Calendar

Miguel Angel Gaitan-Burgos,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 892 942

Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Miguel Angel Gaitan-Burgos, a native and citizen of Nicaragua and
proceeding pro se, petitions for review of the decision of the Board of
Immigration Appeals (BIA) dismissing his appeal of the immigration judge’s

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020

Lyle W. Cayce
Clerk
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(IJ) denial of his applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). His claims fail.
We review the BIA’s final decision, but only review the IJ’s ruling
insofar as it affected the BIA’s decision. See Wang v. Holder, 569 F.3d 531,
536 (5th Cir. 2009). The BIA’s legal conclusions are reviewed de novo; its
findings of fact, under the “substantial evidence standard”. Orellana-
Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). Under this standard, we
affirm unless the evidence is so compelling that no reasonable finder of fact
could conclude against it. Id. at 518.
As an initial matter, Gaitan asserts the BIA should have remanded his
case to the IJ to explain why his case proceeded without the introduction of
his credible-fear interview report; he claims that, without this report, he did
not receive a full and fair hearing because all available evidence was not
examined. Because Gaitan did not raise this issue before the BIA, he has
failed to exhaust it; and we, therefore, lack jurisdiction to consider it. See
Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018); Roy v. Ashcroft, 389
F.3d 132, 137 (5th Cir. 2004).
Gaitan also asserts the BIA erred by applying a higher standard to his
claims than this court requires, maintaining: the BIA failed to consider that
persecution may take forms other than physical harm; and the cumulative
effect of multiple threats or attacks may form the basis of a claim of
persecution. Gaitan makes valid legal claims about what constitutes
persecution as a basis for asylum; but, he did not allege any non-physical form
of persecution, and, as discussed infra, the cumulative effect of the incidents
alleged by Gaitan does not constitute the required persecution.
For past persecution, Gaitan’s asylum claim bases the requisite
persecution on two incidents. The first was in 2012, when: a leader of the
ruling Sandinista party appeared at his home; the leader threatened him and
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his family with death; and a group of people appeared later the same day with
sticks and metal batons. The other was in 2018, when: a paramilitary group
spent several days near his home and asked people where he could be found,
although the group never approached his home. Gaitan testified: he and his
family were never physically harmed in either incident; and, after he learned
the paramilitary group was asking about him, he was able to flee to Honduras.
The record does not compel a conclusion that either incident rose to the level
of persecution. See Qorane v. Barr, 919 F.3d 904, 910 (5th Cir. 2019) (holding
that, for the purposes of asylum, “threats that are exaggerated, non-specific,
or lacking in immediacy should not suffice”) (citation and internal quotation
marks omitted), cert. denied, 140 S. Ct. 907 (2020); Eduard v. Ashcroft, 379
F.3d 182, 188 (5th Cir. 2004) (holding “mere denigration, harassments, and
threats” do not ordinarily amount to persecution).
Gaitan also claims fear of future persecution in Nicaragua. To
establish a well-founded fear of future persecution, the applicant must
subjectively fear persecution and that subjective fear must be objectively
reasonable. Eduard, 379 F.3d at 189. Gaitan has not shown that the record
compels a conclusion that a reasonable person in the same circumstances
would fear persecution. See Orellana-Monson, 685 F.3d at 518 (“The alien
must present specific, detailed facts showing a good reason to fear that he or
she will be singled out for persecution.”) (citation and quotation marks
omitted). As discussed above, although he testified that he received a death
threat in 2012, he also testified no physical harm ever came to him or his
family and that no other threats or persecution occurred between the two
above-discussed incidents in 2012 and 2018. In addition, as also discussed
above, although Gaitan testified that in 2018 a paramilitary group had waited
near his home and asked other residents where he was, he did not testify that
this group ever came to his home or made any direct move to threaten or
detain him.
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Next, Gaitan claims the BIA erred by declining to consider, or by not
remanding for the IJ to consider, the new evidence he submitted, including
evidence that five other men who had been deported to Nicaragua had
disappeared upon arrival. He asserts that this evidence was relevant to his
claims for withholding of removal and CAT relief and that the BIA’s
disregard of this evidence violated his right to due process and his “right to
be heard”. The record shows, however, that Gaitan simply attached this new
evidence to his brief to the BIA; he did not address it in his brief or move to
remand or reopen to allow the IJ to consider it. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (“A party asserting that the [BIA] cannot properly resolve
an appeal without further factfinding must file a motion for remand.”).
Therefore, the BIA did not err by declining to consider this evidence. In
addition, because Gaitan did not move to remand to the IJ or seek to reopen
his case to allow consideration of this new evidence, he has failed to exhaust
this issue, and we lack jurisdiction to consider it. See Vazquez, 885 F.3d at
868.
Finally, the BIA concluded that, because Gaitan failed to establish his
eligibility for asylum, he could not meet the higher burden of proof for
withholding of removal. The BIA also affirmed the IJ’s finding that Gaitan
had not shown his eligibility for relief under the CAT. At noted, Gaitan
claims the BIA should have considered the above-described new evidence
because it was relevant to his withholding-of-removal and CAT claims. In
his brief, Gaitan does not address the IJ’s determinations or the BIA’s
affirming those determinations; he instead offers new evidence. Because the
BIA did not err by declining to consider this new evidence, and because
Gaitan does not otherwise address the merits of the BIA’s determination of
these two claims, he has not shown the record compels a conclusion contrary
to that reached by the BIA.
DISMISSED in part and DENIED in part.
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