Case: 20-60458 Document: 00515708534 Page: 1 Date Filed: 01/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 15, 2021
No. 20-60458
Lyle W. Cayce
Summary Calendar Clerk
Dinabel Elizabeth Gomez-Lara,
Petitioner,
versus
Jeffrey A. Rosen, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 695 997
Before Barksdale, Southwick, and Graves, Circuit Judges.
Per Curiam:*
Dinabael Elizabeth Gomez-Lara, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
her appeal from an immigration judge’s (IJ) denying asylum, withholding of
removal, and relief under the Convention Against Torture (CAT).
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-60458 Document: 00515708534 Page: 2 Date Filed: 01/15/2021
20-60458
In reviewing the BIA’s decision, the IJ’s underlying decision is
considered only to the extent the BIA adopted it. See Mikhael v. I.N.S., 115
F.3d 299, 302 (5th Cir. 1997). The BIA’s legal conclusions are reviewed de
novo, Siwe v. Holder, 742 F.3d 603, 607 (5th Cir. 2014); its factual findings,
for substantial evidence. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006).
Asylum is discretionary, and is granted for aliens refusing to return to
their country based on persecution or a well-founded fear of persecution on
account of “race, religion, nationality, membership in a particular social
group, or political opinion”. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005). For withholding of removal, an applicant must show “it is more likely
than not” her life or freedom would be threatened by persecution based upon
one of the five listed categories—a higher bar than the required showing for
a successful asylum claim. See 8 C.F.R. § 208.16(b)(1).
Gomez presents two grounds for granting asylum or withholding of
removal: her persecution for being a member of a particular social group,
which she asserts is “women in Honduras”; and her family and kinship ties.
Each ground fails.
In claiming the BIA erred by failing to recognize the particular social
group of “women in Honduras”, Gomez fails to show error in the IJ’s finding
the purported group lacks the requisite particularity. Orellana-Monson v.
Holder, 685 F.3d 511, 521–22 (5th Cir. 2012).
For her second ground, Gomez asserts she was persecuted because
she was beaten and raped on account of her kinship ties. This assertion stems
from the mistaken belief of the Honduran man who raped Gomez in
retaliation for an alleged murder. Because Gomez did not raise this claim
before the BIA, she failed to exhaust it. Accordingly, we lack jurisdiction to
address the claim. Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001).
2
Case: 20-60458 Document: 00515708534 Page: 3 Date Filed: 01/15/2021
20-60458
Along the same lines, to the extent Gomez asserts a revised purported social
group of “a woman of Honduras who has suffered sexual abuse by rape”, the
issue is unexhausted and cannot be considered.
In support of her challenge to the denial of CAT relief, Gomez
contends: if she returns to Honduras, the pattern of retribution to avenge the
alleged murder will continue; and her experience shows the police are not
able or willing to protect her. To obtain CAT relief, however, an alien must
show it is more likely than not she would be tortured if removed to the
proposed country, and its government would instigate or consent to it.
Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015).
“[P]otential instances of violence committed by non-governmental
actors against citizens, together with speculation that the police might not
prevent that violence, are generally insufficient to prove government
acquiescence”. Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014). Further,
“neither the failure to apprehend the persons threatening the alien, nor the
lack of financial resources to eradicate the threat or risk of torture constitute
sufficient state action for purposes of the [CAT]”. Tamara-Gomez v.
Gonzales, 447 F.3d 343, 351 (5th Cir. 2006). In the conclusory two sentences
in her brief concerning the denial of CAT relief, Gomez has not shown, inter
alia, the evidence compels the conclusion it is more likely than not she would
be tortured if removed to Honduras. See Ramirez-Mejia, 794 F.3d at 493.
DISMISSED in part and DENIED in part.
3