Case: 17-60630 Document: 00514607299 Page: 1 Date Filed: 08/20/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 17-60630 August 20, 2018
Summary Calendar Lyle W. Cayce
Clerk
ANA LAURA HERCULES-QUITENO; CHRISTOPHER DANIEL TORRES-
HERCULES,
Petitioners
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 730 570
BIA No. A206 730 571
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Ana Laura Hercules-Quiteno and her son Christopher Daniel Torres-
Hercules, both natives and citizens of El Salvador, petition this court to review
the order of the Board of Immigration Appeals (BIA) dismissing their appeal
from the denial of their applications for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). We review for substantial
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60630
evidence the findings that the petitioners were not eligible for such relief.
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). We will affirm a finding
unless the “evidence compels a contrary conclusion.” Carbajal-Gonzalez v.
INS, 78 F.3d 194, 197 (5th Cir. 1996); see 8 U.S.C. § 1252(b)(4)(B). The
petitioners have “the burden of showing that the evidence is so compelling that
no reasonable factfinder could reach a contrary conclusion.” Orellana-Monson
v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks and
citation omitted). We review the final decision of the BIA and will also review
the ruling of the immigration judge (IJ) insofar as it affected the BIA’s decision.
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).
First, petitioners contend that the BIA applied an incorrect standard in
reviewing whether any past or feared future persecution had the required
nexus to Hercules-Quiteno’s political opinion. Our court, however, lacks
jurisdiction to review an issue for which an alien failed to exhaust all
administrative remedies available to her as of right. See Omari v. Holder, 562
F.3d 314, 318 (5th Cir. 2009); 8 U.S.C. § 1252(d)(1). Because the petitioners’
claim that the BIA relied on an erroneous legal standard is an issue “stemming
from the BIA’s act of decisionmaking,” it could not have been raised prior to
the BIA’s issuance of its decision. Omari, 562 F.3d at 319-21. Petitioners
therefore were required to raise the issue in a motion to reopen or for
reconsideration to satisfy the exhaustion requirement. E.g., id. at 320-21.
Because they did not do so, our court lacks jurisdiction to review the claim. See
id.; Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
Next, petitioners challenge the finding that they were not eligible for
asylum and withholding of removal. As to their contention that they were
subject to past persecution, petitioners were sent threats and extortion
demands via text messages, a note left at their house, and twice in person, and
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No. 17-60630
a man attempted to kidnap Hercules-Quiteno’s daughter, which did not result
in any physical harm. These incidents, without more, do not compel a finding
of persecution. See, e.g., Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th
Cir. 2012); Eduard v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004).
As for future persecution, petitioners have not set forth evidence “so
compelling” that no reasonable factfinder could fail to find the nexus
requirement fulfilled. Orellana-Monson, 685 F.3d at 518. Specifically,
petitioners have not pointed to anything that compels a finding that Hercules-
Quiteno’s political opinion was a central reason for any feared future
persecution. See Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009). Rather,
the hearing testimony and other record evidence supports the BIA’s and the
IJ’s finding that the gang members were motivated primarily by Hercules-
Quiteno’s refusal to cooperate with their demands for money, and Hercules-
Quiteno’s political opinion, if any existed or was imputed to her by the gang
members, played an incidental role. Cf. Sharma v. Holder, 729 F.3d 407, 412-
13 (5th Cir. 2013). Petitioners likewise have not shown that the evidence
compels the conclusion that Hercules-Quiteno’s membership in her nuclear
family will be a central reason for any persecution. See Shaikh, 588 F.3d at
864. Nor have petitioners shown that the BIA’s and the IJ’s determination
regarding the putative group of single working mothers in El Salvador—i.e.,
that it is not cognizable as a particular social group—was arbitrary or
capricious, and we will not disturb that determination. See Orellana-Monson,
685 F.3d at 520-21. Thus, the BIA’s and the IJ’s conclusion that petitioners
were not eligible for asylum is supported by substantial evidence. See Zhang,
432 F.3d at 344.
As petitioners have not shown that they are entitled to asylum, they
concomitantly have not shown that they are entitled to withholding of removal.
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See Eduard, 379 F.3d at 186 n.2. Finally, there is no basis in the record to
demonstrate that the BIA and IJ erred in rejecting the petitioners’ speculative
CAT claim that they would be tortured with the acquiescence of a public official
upon their return to El Salvador. See Morales v. Sessions, 860 F.3d 812, 818
(5th Cir. 2017). Nor does the case require remand in light of our recent decision
in Iruegas-Valdez v. Yates, 846 F.3d 806 (5th Cir. 2017). Petitioners provided
no particularized evidence in this case of the sort offered by Iruegas-Valdez.
The petition for review is DISMISSED IN PART and DENIED IN PART.
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