Case: 19-60466 Document: 00515802270 Page: 1 Date Filed: 03/30/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 30, 2021
No. 19-60466 Lyle W. Cayce
Summary Calendar Clerk
Rolando Salazar-Maldanado, also known as Rolando
Salazar-Maldonado,
Petitioner,
versus
Merrick Garland, U. S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 567 881
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Rolando Salazar-Maldanado, a native and citizen of Mexico, petitions
for review of an order by 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opinion should not be published and is not precedent except under the limited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. 19-60466
protection under the Convention Against Torture (CAT) and denying his
motion to reopen. He argues that he has established a well-founded fear of
future persecution sufficient to warrant withholding of removal, that he is
entitled to protection under the CAT, that the BIA abused its discretion in
determining that his motion to reopen was untimely and that he was not
entitled to equitable tolling of the 90-day period for filing a motion to reopen,
that his due process rights were violated, and that the BIA erred in not
granting his motion to reopen pursuant to its sua sponte authority.
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d
220, 224 (5th Cir. 2018). Factual findings are reviewed for substantial
evidence and legal determinations are reviewed de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
Although Salazar-Maldanado argues that it is more likely than not that
he will be subjected to physical violence and potentially murder because of
his membership in the particular social group of “fruit growers and family
members of fruit growers in Victoria, Tamaulipas, Mexico who are
threatened by criminal organizations,” his testimony reflects that his family
was merely subjected to economic extortion. Because economic extortion is
not a cognizable form of persecution under immigration law, substantial
evidence supports the BIA’s determination that Salazar-Maldanado was not
entitled to withholding of removal. See Singh v. Barr, 920 F.3d 255, 259 (5th
Cir. 2019).
To establish entitlement to relief under the CAT, an alien must prove
that it is more likely than not that he will be tortured with the consent or
acquiescence of public officials if he returns to the particular country in
question. 8 C.F.R. §§ 1208.16(c)(2) and 1208.18(a)(1). Although Salazar-
Maldanado asserts that the Mexican government would be unable to protect
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No. 19-60466
him from the Zetas cartel, he is not entitled to protection under the CAT
because he has failed to provide evidence that public officials have
participated in, consented to, or willfully acquiesced to torture. See Ramirez-
Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir. 2015).
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir.
2017). Although a motion to reopen must generally be filed within 90 days of
the entry of a final order of removal, this deadline is subject to equitable
tolling. Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016). An alien
is entitled to equitable tolling if he shows “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Mejia v. Barr, 952 F.3d 255, 259 (5th Cir.
2020) (quoting Lugo-Resendez, 831 F.3d at 344). Ineffective assistance of
counsel may constitute an extraordinary circumstance justifying equitable
tolling of the deadline for seeking statutory reopening. Diaz v. Sessions, 894
F.3d 222, 227 (5th Cir. 2018).
Although Salazar-Maldanado argues that his former attorney
performed deficiently when the attorney failed to argue that his asylum
application was timely and failed to submit sufficient evidence supporting his
claims, he has failed to demonstrate that the attorney performed deficiently,
or that he was prejudiced, because he has not identified any changed or
extraordinary circumstances that would excuse his nearly 15-year delay in
seeking asylum relief. Nor has he presented any additional evidence that
should have been submitted in support of his application. See Miranda-Lores
v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994). Accordingly, the BIA did not abuse
its discretion in determining that Salazar-Maldanado was not entitled to
equitable tolling.
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Moreover, although ineffective assistance of counsel in immigration
proceedings may implicate due process concerns under the Fifth
Amendment, Salazar-Maldanado has failed to demonstrate that his right to a
full and fair hearing was violated because, as discussed above, he failed to
demonstrate that his former attorney performed deficiently or that he was
prejudiced. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).
Finally, despite Salazar-Maldanado’s assertions to the contrary, “this
court lacks jurisdiction to review the BIA’s discretionary decision not to
invoke its sua sponte authority to reopen a case because there is ‘no legal
standard against which to judge’ that decision.” Mejia v. Whitaker, 913 F.3d
482, 490 (5th Cir. 2019) (quoting Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,
250 (5th Cir. 2004)).
Based upon the foregoing, the petition for review is DENIED in part
and DISMISSED in part.
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