Case: 18-60558 Document: 00515320111 Page: 1 Date Filed: 02/24/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 24, 2020
No. 18-60558
Summary Calendar Lyle W. Cayce
Clerk
SARA LOURDES GUERRA-DE CARDOZA; EMILIA VALENCIA-DE GUERRA;
JACQUELINE PAOLA CARDOZA-GUERRA; CARLOS ANTONIO CARDOZA-
GUERRA; GENESIS VALERIA CARDOZA-GUERRA,
Petitioners
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 274 075
BIA No. A208 274 076
BIA No. A208 274 077
BIA No. A208 274 078
BIA No. A208 274 079
Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Petitioners Sara Lourdes Guerra-De Cardoza (Guerra), on behalf of herself
and her three children, and Guerra’s mother, Emilia Valencia-De Guerra
(Valencia), natives and citizens of El Salvador, seek review of the Board of
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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Immigration Appeals’ (BIA) dismissing their consolidated appeal from the
immigration judge’s (IJ) denying their applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). (Because
petitioners fail to brief any challenge to the denied CAT relief, this claim is
abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (citation
omitted).)
Guerra contends the BIA erred by finding her proposed social group—
“Salvadoran women unable to escape domestic violence by their domestic
partners”—is not cognizable. More specifically, she claims the BIA incorrectly:
gave retroactive effect to Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018),
vacated in part, Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), appeal
docketed, No. 19-5013 (D.C. Cir. 30 Jan. 2019); and concluded her proposed group
was principally defined by characteristics of the alleged persecution and was
impermissibly circular. Valencia contends the BIA erred by finding the claimed
persecution was motivated by the alleged persecutor’s (Guerra’s former partner)
desire for money, rather than by membership in her proposed particular social
group, “immediate family members” of Guerra. (Before the BIA, Valencia also
contended she was a member of a group comprised of “Salvadoran women unable
to escape domestic violence from a child’s partner”. Her failure, however, to brief
any challenge to the BIA’s finding this group non-cognizable has abandoned the
issue. See Soadjede, 324 F.3d at 833 (citation omitted).)
In considering the BIA’s decision (and the IJ’s decision, to the extent it
influenced the BIA’s decision), our court reviews legal conclusions de novo; factual
findings, for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517–
18 (5th Cir. 2012) (citations omitted). On substantial-evidence review, a factual
finding will not be disturbed unless petitioner demonstrates “that the evidence is
so compelling that no reasonable factfinder could reach a contrary
conclusion”. Id. at 518 (citation omitted). Among such factual findings are an
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alien’s not being eligible for asylum or withholding of removal. Zhang v. Gonzales,
432 F.3d 339, 344 (5th Cir. 2005) (citations omitted).
To be eligible for asylum, an alien must show, inter alia, she was
persecuted, or has a well-founded fear of future persecution, based on a statutorily
protected ground: “race, religion, nationality, membership in a particular social
group, or political opinion”. Orellana-Monson, 685 F.3d at 518 (italics and
citations omitted). In this instance, petitioners claim membership in several
particular social groups, each of which requires petitioners’ “show[ing] that they
are members of a group of persons that share a common immutable characteristic
that they either cannot or should not be required to change because [the
characteristic] is fundamental to [their] individual identities or consciences”. Id.
(citations and internal quotation marks omitted). Such a group must, inter alia:
be particular; “exist independently of the harm asserted”; and not be defined
circularly by the persecution suffered. Gonzales-Veliz v. Barr, 938 F.3d 219, 230,
232 (5th Cir. 2019) (citations and internal quotation marks omitted).
Regarding Guerra’s retroactivity claim, 8 U.S.C. § 1252(d)(1)’s
administrative-exhaustion requirement for review of final orders of removal
means this issue must have been raised in the first instance before the BIA, either
in a motion to reopen or motion for reconsideration, for our court to have
jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 319–21 (5th Cir.
2009) (citations omitted) (holding claims of error in “BIA’s act of decisionmaking”
that “neither party could have possibly raised prior to the BIA’s decision” must
first be exhausted through “available and adequate means”, including motions to
reopen and for reconsideration). Guerra’s briefing asserts: she filed a motion for
reconsideration with the BIA that raised this issue; and this motion remains
pending (as of 29 March 2019, when Guerra filed her reply brief; the record does
not disclose the motion’s status). Her petition for review, however, seeks review
only of the BIA’s order of removal, issued when it dismissed her appeal from the
IJ’s denying relief, and does not seek review of any motion for reconsideration.
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Because the “BIA’s denial of an appeal and its denial of a motion to reconsider are
two separate final orders, each of which requires their own petitions for review”,
Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006) (citations omitted), our
court lacks jurisdiction to consider this issue in this petition for review.
For Guerra’s claim that the BIA erred by concluding her proposed social
group was principally defined by characteristics of the alleged persecution and
was impermissibly circular, she did not raise this claim before the BIA, instead
analogizing to the now-overruled Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA
2014), overruled by Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018). Because
this failure means the issue is unexhausted, our court lacks jurisdiction to review
it. See, e.g., Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001) (citations
omitted).
As for Valencia’s claim the BIA erred by finding the claimed persecution
was not motivated by her membership in her asserted particular social group
(“immediate family members” of Guerra), Valencia, Guerra, and Guerra’s oldest
daughter each testified they believed Guerra’s former partner (the alleged
persecutor) targeted the family because he wanted money. The BIA (as did the
IJ) relied on this testimony to find the alleged persecution was not motivated by
Valencia’s membership in her claimed social group. She has not demonstrated
that no reasonable factfinder could have reached a contrary conclusion. See
Orellana-Monson, 685 F.3d at 518 (citation omitted).
Regarding withholding of removal, because neither Guerra nor Valencia
has established a protected ground for asylum, their withholding claims
necessarily fail. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
DISMISSED IN PART; DENIED IN PART.
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