Castillo-Cruz, et al v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60887
Summary Calendar

Maria De La Paz Castillo-Cruz; Kevin Abimael Ochoa-
Castillo,

Petitioners,

versus

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

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 371 260
BIA No. A208 371 261

Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Maria De La Paz Castillo-Cruz and Kevin Abimael Ochoa-Castillo
petition for review of a decision of the Board of Immigration Appeals (BIA).
They challenge the denial of relief from removal on four grounds. They

*
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opinion should not be published and is not precedent except under the limited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 22, 2020

Lyle W. Cayce
Clerk
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contend that the immigration court lacked jurisdiction due to a defect with
the notice to appear (NTA), that untranslated portions in the transcript of
the hearing before the immigration judge (IJ) made a complete understanding
of the transcript impossible, that they established a well-founded fear of
future prosecution based on either an imputed political opinion or
membership in a particular social group, and that they qualify for relief under
the Convention Against Torture (CAT).
The BIA’s factual findings are reviewed for substantial evidence.
Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). Under substantial
evidence review, “this court may not reverse the BIA's factual findings
unless the evidence compels it.” Wang v. Holder, 569 F.3d 531, 536–37 (5th
Cir. 2009); 8 U.S.C. § 1252(b)(4)(B). The alien “must show that the
evidence was so compelling that no reasonable factfinder could conclude
against it.” Id. By contrast, this court reviews the BIA’s legal determinations
de novo, “including whether the Board applied an inappropriate standard or
failed to make necessary findings.” Iruegas-Valdez v. Yates, 846 F.3d 806,
810 (5th Cir. 2017). If this court determines that the BIA applied an
inappropriate standard or neglected necessary findings, the court will vacate
the decision and remand to the BIA. Id. at 811, 813.
We cannot reach Castillo-Cruz and Ochoa-Castillo’s first argument,
which is that the immigration court lacked jurisdiction due to the fact that the
initial NTA did not include the time and place of the hearing, as they failed
to exhaust the issue by raising it with the BIA. Pereira v. Sessions, 138 S. Ct.
2105 (2018), on which they rely, was decided before they filed their brief on
appeal to the BIA. They could have raised Pereira before the BIA on appeal.
See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009); see, e.g., Matter of
Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018) (addressing Periera issue).
Because the issue was not exhausted, we lack jurisdiction to consider it. See
Omari v. Holder, 562 F.3d 314, 317 (5th Cir. 2009).
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Next, Castillo-Cruz and Ochoa-Castillo fail to show that the errors in
the immigration hearing transcript require remand. Aliens are entitled to the
due process of law under the Fifth Amendment in deportation proceedings.
Vetcher v. Barr, 953 F.3d 361, 369–70 (5th Cir. 2020), petition for cert. filed
(U.S. June 26, 2020) (No. 19-1437). To succeed on a due process claim, an
alien must make an initial showing of substantial prejudice. Okpala v.
Whitaker, 908 F.3d 965, 971 (5th Cir. 2018). Castillo-Cruz and Ochoa-
Castillo have failed to show substantial prejudice, as the meaning of the eight
untranslated words in the transcript are clear from context. See id.
Furthermore, Castillo-Cruz and Ochoa-Castillo have failed to show
that they have established a well-founded fear of future persecution, either
on account of an imputed political opinion or due to membership in a
particular social group. They argued that the MS-13 gang had imputed an
anti-gang political opinion onto Ochoa-Castillo, and alternatively that Ochoa-
Castillo belonged to the particular social group of child soldiers from
Honduras.
The imputed political opinion argument fails because the petitioner
“has to establish that the record . . . compels the conclusion that he has a
well-founded fear that the [gang] will persecute him because of that political
opinion, rather than because of his refusal to fight with them.” I.N.S.
v. Elias-Zacarias, 502 U.S. 478 (1992) (internal quotations omitted). Under
the substantial evidence standard, Castillo-Cruz and Ochoa-Castillo have
failed to meet this burden. See id.; Wang, 569 F.3d at 536–37.
The particular social group argument also fails. We have rejected as a
particular social group young men who seek to resist gang recruitment.
Orellana-Monson v. Holder, 685 F.3d 519, 521 (5th Cir. 2012). The IJ’s and
BIA’s rejection of the proposed social group of child soldiers from Honduras
is supported by substantial evidence, as Castillo-Cruz and Ochoa-Castillo
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make no argument that Ochoa-Castillo ever was an actual child soldier. See
Wang, 569 F.3d at 536–37. Because they cannot make the showing to obtain
asylum, Castillo-Cruz and Ochoa-Castillo cannot make the higher showing
necessary to obtain withholding of removal. See Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002).
Finally, a claim under the CAT is separate from claims for asylum and
withholding of removal and require a separate analysis. Efe, 293 F.3d at 906.
The burden of proof is on the petitioner “to establish that it is more likely
than not that he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16.
Torture is “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted . . . when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. 8 C.F.R.
§ 1208.18(a)(1). The regulations also state that “[t]orture is an extreme form
of cruel and inhuman treatment and does not include lesser forms of cruel,
inhuman or degrading treatment or punishment that do not amount to
torture.” 8 C.F.R. § 1208.18(a)(2). Accordingly, relief requires a two-part
analysis: (1) is it more likely than not that the alien will be tortured upon
return to his homeland; and (2) is there sufficient state action involved in that
torture. Tamara-Gomez, 447 F.3d at 350–51. An applicant “may satisfy his
burden of proving acquiescence by demonstrating “a government’s willful
blindness of torturous activity.” Iruegas-Valdez, 846 F.3d at 812 (citations
omitted).
The IJ found no particularized threat of torture and determined that
Castillo-Cruz and Ochoa-Castillo had failed to show that it was more likely
than not that they would be tortured if they were returned to Honduras. The
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findings of the IJ and BIA are supported by substantial evidence. See Wang,
569 F.3d at 536–37.
In conclusion, Castillo-Cruz’s and Ochoa-Castillo’s argument that
the immigration court lacked jurisdiction due to a defective NTA is
DISMISSED. The petition for review otherwise is DENIED.

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