Case: 15-60080 Document: 00513455813 Page: 1 Date Filed: 04/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-60080 April 7, 2016
Summary Calendar
Lyle W. Cayce
Clerk
EDWIN JOSE PADILLA VELASQUEZ, also known as Edwin J. Padilla,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 240 882
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Edwin Jose Padilla-Velasquez, a native and citizen of Honduras,
petitions this court for review of the denial of his applications for withholding
of removal and relief under the Convention Against Torture (CAT). He argues
that he is statutorily eligible for withholding of removal because he has shown
that he would be persecuted on account of his membership in the particular
social group of “Honduran able bodied, tattooed, adult males who have no gang
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-60080
association but are perceived by their physical appearance to be gang
members.” He also argues that he was eligible for relief under the CAT.
Padilla-Velasquez did not challenge the IJ’s denial of withholding of
removal based on his religion in his appeal before the BIA. In addition, his
argument that the BIA made an error in its decision-making process should
have been raised in a motion to reconsider before the BIA. See Omari v. Holder,
562 F.3d 314, 320-21 (5th Cir. 2009). Because Padilla-Velasquez failed to
exhaust his administrative remedies, this court lacks jurisdiction to consider
these issues. See Dale v. Holder, 610 F.3d 294, 298-301 (5th Cir. 2010). We
dismiss the petition in part on this basis.
This court retains jurisdiction over constitutional claims or questions of
law. 8 U.S.C. § 1252(a)(2)(D); Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 (5th
Cir. 2006). We find that substantial evidence supports the BIA’s determination
that Padilla-Velasquez’s proposed social group lacks social distinction and
therefore does not meet the test for a particular social group. See Orellana-
Monson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012) (a cognizable particular
social group requires “particularity” and “social visibility”); De Leon-Saj v.
Holder, 583 F. App’x 429, 431 (5th Cir. 2014) (recognizing that the BIA
renamed the “social visibility” element as “social distinction”). Padilla
Velasquez’s petition for review in this respect is therefore denied.
Padilla-Velasquez also argues that the IJ violated his procedural due
process rights by failing to adjudicate his CAT claim. This argument fails
because he has not shown that he was substantially prejudiced by the BIA’s
actions. See Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir. 2012). Further,
substantial evidence supports the BIA’s decision that he was not entitled to
CAT relief. See Orellana-Monson, 685 F.3d at 518.
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No. 15-60080
Padilla-Velasquez does not challenge the denial of his application for
asylum or cancellation of removal. Therefore, he has abandoned these claims.
See Bouchikhi v. Holder, 676 F.3d 173, 179 (5th Cir. 2012).
The petition for review is DENIED in part and DISMISSED in part.
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