Salazar-Maldanado v. Garland

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   opinion should not be published and is not precedent except under the limited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.
Case: 19-60466      Document: 00515802270           Page: 2    Date Filed: 03/30/2021




                                     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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