Case: 19-60532 Document: 00515691791 Page: 1 Date Filed: 01/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60532 January 4, 2021
Summary Calendar Lyle W. Cayce
Clerk
Francisco Espinoza-Villasenor, also known as Francisco M.
Espinosa,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 239 029
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Francisco Espinoza-Villasenor, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (BIA): dismissing
his appeal from the denial of his application for withholding of removal and
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60532
relief under the Convention Against Torture (CAT); and denying his request
to remand the proceeding to consider his eligibility for cancellation of
removal. Because he presents claims pertaining only to withholding, and
cancellation, of removal, he has abandoned any challenge to the BIA’s
determination that he was not eligible for protection under the CAT. See
Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).
In considering the BIA’s decision (and the IJ’s decision, to the extent
it influenced the BIA), questions of law are reviewed de novo; factual findings,
for substantial evidence, Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th
Cir. 2012); and denial of the motion to remand, for abuse of discretion, Milat
v. Holder, 755 F.3d 354, 365 (5th Cir. 2014).
To be eligible for withholding of removal, an applicant “must
demonstrate a clear probability of persecution upon return”. Munoz-
Granados, 958 F.3d 402, 408 (5th Cir. 2020) (quoting Roy v. Ashcroft, 389
F.3d 132, 138 (5th Cir. 2004)). A clear probability of persecution “means
that it is more likely than not that the applicant’s life or freedom would be
threatened by persecution on account of either his race, religion, nationality,
membership in a particular social group, or political opinion”. Roy, 389 F.3d
at 138 (emphasis added). Although Espinoza asserts he was threatened by
members of his wife’s family based on his membership in the Espinoza-
Villasenor family, his testimony reflects that he was threatened because his
wife’s family did not approve of his relationship with his wife (who died after
his illegal entry in the United States). In fact, he acknowledged that his wife’s
family’s issue with him had nothing to do with his family; it was related to
the age difference between him and his wife and because he left her.
Moreover, he testified that he was the only one in his family who had been
threatened by his wife’s family. “Persecution motivated by a personal
vendetta or desire for revenge is not persecution ‘on account of’ a protected
ground.” Martinez Manzanares v. Barr, 925 F.3d 222, 227 (5th Cir. 2019)
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(citations omitted). Accordingly, substantial evidence supports the BIA’s
determination that Espinoza is not entitled to withholding of removal.
Regarding Espinoza’s motion to remand to consider his eligibility for
cancellation of removal, such cancellation is available to applicants who: have
been continuously present in the United States for ten or more years prior to
filing an application; can establish good moral character during that time;
have no disqualifying convictions; and can establish that removal would
result in exceptional and extremely unusual hardship to the applicant’s
spouse, parent, or child. 8 U.S.C. § 1229b(b)(1). Pursuant to the stop-time
rule, continuous physical presence is deemed to end when an applicant is
served a notice to appear (NTA). 8 U.S.C. § 1229b(d)(1)(A). On the other
hand, in Pereira v. Sessions, the Supreme Court held a NTA that fails to
inform a noncitizen of when and where to appear is invalid and does not
trigger the stop-time rule. 138 S. Ct. 2105, 2110 (2018).
Espinoza entered the United States in 2007 without being admitted or
paroled. He was served a NTA in 2014, but it did not designate a specific
time when he was required to appear. On 9 March 2016, Espinoza was served
with a notice of hearing (NOH), stating a hearing had been scheduled for 25
March 2016. He contends he has been continuously present in the United
States for more than ten years, because neither the NTA nor subsequent
service of the NOH triggers the stop-time rule. This court has held, however,
that a NTA is cured, and the stop-time rule triggered, when an applicant
receives all the required information, even if the information is provided in
more than one document. Yanez-Pena v. Barr, 952 F.3d 239, 245 (5th Cir.
2020), petition for cert. filed (Apr. 8, 2020) (No. 19-1208). Because service of
the NOH containing the information missing from the NTA was done within
ten years of Espinoza’s entry to the United States, he lacks the requisite ten
years of continuous presence to be eligible for cancellation of removal.
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Accordingly, the BIA did not abuse its discretion in denying the motion to
remand.
DENIED.
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